Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmed Abou-Elmaati and Muayyed Nureddin/4
1. The following is a summary of information obtained by the Inquiry, largely from interviews of Canadian officials and review of relevant documents, concerning the actions of Canadian officials in relation to Mr. Almalki. Canadian officials’ interest in Mr. Almalki
- 1 CSIS
- 2 RCMP
- 3 Project A-O Canada
- 4 Investigative tools used by Project A-O Canada
- 5 Canada Customs lookouts
- 6 U.S. Customs lookouts
- 7 Mr. Almalki goes to Malaysia
- 8 January 2002 searches and interviews
- 9 Mr. Almalki detained in Syria
- 10 RCMP / CSIS meetings regarding criminal charges
- 11 Role of Malaysia in Mr. Almalki’s detention/interrogation in Syria
- 12 Consular actions
- 12.1 First steps
- 12.2 RCMP’s meeting with Michael Edelson
- 12.3 Purpose of the trip
- 12.4 Mr. Almalki’s interrogation in November and December 2002
- 12.5 Questions for Mr. Almalki
- 12.6 Interview or questions
- 12.7 Post-release interrogation of Mr. Almalki
- 12.8 Mr. Almalki’s court hearing and exit from Syria
- 12.9 Mr. Almalki returns to Canada
- 12.10 Canadian officials learn of Mr. Almalki’s return to Canada
- 13 Original Footnotes
2. Starting in the early 1990s, CSIS was actively investigating potential security threats posed by Canada-based supporters of Sunni Islamic extremism, al-Qaeda and Osama Bin Laden. In the late 1990s, in the normal course of this investigation, CSIS learned that Abdullah Almalki might have some knowledge of the threat to Canada and Canadian interests abroad. The Service had concerns arising out of information that linked Mr. Almalki to Islamic extremists.
3. On two occasions during the summer of 1998, Mr. Almalki agreed to be interviewed by a CSIS investigator. According to CSIS records, during the first interview Mr. Almalki was asked about his family, his business, his business travel and his work in Pakistan and Afghanistan with Human Concern International, a Canada-based charitable organization. According to CSIS’ report of the second interview, the CSIS investigator asked Mr. Almalki about the August 1998 attacks in Sudan, Afghanistan, Tanzania and Kenya, and about Osama Bin Laden.
4. Mr. Almalki agreed to be interviewed by CSIS investigators again in February 2000. According to Mr. Almalki and to CSIS records, the investigators questioned him about his business. Around that same period, Mr. Almalki recalls being told that people in the Muslim community had been questioned about him by CSIS.
5. On several occasions starting in the late 1990s, CSIS shared information about Mr. Almalki with the RCMP and various foreign intelligence and law enforcement agencies, including U.S. agencies and Malaysian agencies. The nature of the shared information varied, but generally related to the threat from Islamic extremists. CSIS’ communications were in all cases accompanied by caveats. The Inquiry found no evidence that CSIS shared with or received from Syrian authorities information about Mr. Almalki during this time.
6. The RCMP became interested in Mr. Almalki at some point in 2000 and began corresponding and cooperating with the FBI regarding possible investigative steps. In July 2000, the FBI informed the RCMP that Mr. Almalki was suspected of attempting to procure restricted items from the United States for shipment abroad.
7. Following the events of September 11, 2001, the RCMP received several letters from CSIS and U.S. authorities advising it of individuals suspected of supporting Islamic extremism in Canada. Among these letters was a September 26, 2001 letter from CSIS that mentioned but did not name an individual believed to be an “al Qaida procurement officer in Canada,” and a September 23, 2001 letter from the FBI describing Mr. Almalki as the “Ottawa-based procurement officer” for Osama Bin Laden. Based on these letters, on October 2, 2001, the RCMP sent a fax to the RCMP liaison officers in Islamabad, Rome, Delhi, Washington, London, Berlin and Paris identifying Mr. Almalki as an “important member” of al-Qaeda. The letters attributed the description of Mr. Almalki as an “important member” of al-Qaeda to another agency; the description was not a product of the RCMP’s own investigation. Two days later, on October 4, 2001, the RCMP’s liaison office in Rome sent letters to law enforcement agencies in several countries, including Syria and Egypt, providing biographical data about several Canadian residents, including Mr. Almalki, and requesting any intelligence that might surface on any of them.
8. These October 4 letters were sent further to letters that the liaison office had sent to the same entities on September 29, in which certain Canadian residents (not including Mr. Almalki) were described as being linked through association to al-Qaeda and engaged in activities that posed an “imminent threat” to the public safety and security of Canada. This description was not a product of the RCMP’s own investigation, but reflected information from another source. At the end of each of the October 4 letters was a caveat prohibiting dissemination without the RCMP’s consent.
9. Since Syria did not participate in the Inquiry, the Inquiry did not receive any information regarding whether the RCMP’s letters to Syria of October 4 and September 29 had any effect on Syria’s actions in respect of Mr. Almalki.
Project A-O CanadaEdit
10. CSIS provided information to the RCMP, including an advisory letter dated October 5, 2001, at the RCMP’s request. In October 2001, Mr. Almalki became the primary target of the Project A-O Canada investigation, which focused on Mr. Almalki’s alleged involvement with al-Qaeda. Project A-O Canada investigators were instructed to try to uncover Mr. Almalki’s business relationships around the world with a view to collecting evidence that might support a charge of facilitating terrorist activity.
11. During the period of the Project A-O Canada investigation, CSIS continued to exchange information regarding Islamic extremists with foreign intelligence and law enforcement agencies, and provided the RCMP with additional advisory letters containing information on Mr. Almalki.
Investigative tools used by Project A-O CanadaEdit
12. In its investigation into Mr. Almalki, Project A-O Canada obtained information about Mr. Almalki from various sources, including surveillance, execution of search warrants, exchanges of information with foreign law enforcement agencies and border lookouts placed with Canadian and United States customs agencies. 
Canada Customs lookoutsEdit
13. On November 1, 2001, at the request of the RCMP, Canada Customs issued a lookout against Mr. Almalki and four of his family members. On November 2, 2001, at the request of Project A-O Canada, the lookout was changed.
U.S. Customs lookoutsEdit
14. On June 11, 2001, a TECS lookout was entered for Mr. Almalki, so that he would be detained for questioning if he attempted to enter the United States. RCMP documents suggest that the RCMP was aware as of early October 2001 that this lookout was in place. On October 31, 2001, Inspector Michel Cabana, the Officer in Charge of Project A-O Canada, authorized a request to the United States Customs Service to issue TECS checks and lookouts on Mr. Almalki and several of his family members. Though Project A-O Canada was aware that Mr. Almalki was already a subject of a TECS lookout, it made this request so that it would be notified of any cross-border activity. The request described Mr. Almalki and his family members as “Islamic extremist individuals suspected of being linked to the Al Qaeda terrorist movement”. A United States customs agent advised the RCMP on November 6, 2001 that the individuals named in the lookout request, and their vehicles, had been entered into the TECS system.
15. According to the RCMP, the language “Islamic extremist individuals suspected of being linked to the Al Qaeda terrorist movement” contained in the lookout request was formulated in part based on information received from other agencies, and in part based on information obtained from its own investigations. 16. A copy of the RCMP’s October 31, 2001 request to the U.S. Customs Service was included on the CDs provided to U.S. agencies in April 2002.
Mr. Almalki goes to MalaysiaEdit
November 27 departureEdit
17. On November 27, 2001, Mr. Almalki left Canada for Malaysia, with a return ticket and a scheduled return date of December 25, 2001. His family—his pregnant wife, his four children and his parents—all flew to Malaysia the following day. Project A-O Canada was aware of Mr. Almalki’s parents’ travel plans prior to November 28, but did not become aware of the travel plans of Mr. Almalki’s wife and children until immediately prior to their departure on November 28. Project A-O Canada did not learn of Mr. Almalki’s departure until several days after he left Canada.
18. The Inquiry found no evidence to suggest that the RCMP or any other Canadian officials were aware of Mr. Almalki’s itinerary or communicated it to foreign agencies before he left Canada. Inspector Clement believed that this lookout may have been entered at the request of a U.S. agency.
RCMP searches for Mr. AlmalkiEdit
19. After learning that Mr. Almalki’s family had departed for Malaysia, Project A-O Canada officials, unaware that Mr. Almalki had already left the country, spent several days trying to locate him in Canada. According to Inspector Cabana’s notes from November 30, 2001, Inspector Cabana met that day with Staff Sergeant Patrick Callaghan (a member of the Ottawa Police Service, who was seconded to Project A-O Canada) and requested that the airport special squad be advised of the situation, so that if Mr. Almalki was located, the squad could arrest him for breach of the peace. The notes indicate that the purpose of arresting Mr. Almalki was to interview him. In his interview with the Inquiry, Inspector Cabana stated that the goal of arresting Mr. Almalki would not have been to prosecute him, but to detain and question him and confront him with some of the evidence that the RCMP had uncovered; he thought that he needed to take advantage of every opportunity to apprehend and interview Mr. Almalki, because there was no guarantee that he would return to Canada. Inspector Cabana said that he could not remember what led the RCMP to believe that it had grounds to arrest Mr. Almalki for breach of peace. However, he said that, at a later date, he looked at the breach of peace provisions of the Criminal Code and determined that they do permit peace officers to arrest individuals whom the officers believe, on reasonable grounds, are going to be or will be breaching the peace. Inspector Cabana said that arresting Mr. Almalki for breach of the peace, and interviewing him, was consistent with Project A-O Canada’s mandate, which was to do everything lawfully within its powers to prevent anything from happening anywhere.
20. On November 30, 2001, a Project A-O Canada investigator learned that Mr. Almalki had purchased a plane ticket to Malaysia, with a departure date of November 27 and a return date of December 25. Later that day, Corporal Randy Buffam of Project A-O Canada notified the FBI that Mr. Almalki had departed for Malaysia. The RCMP was aware that the FBI would likely relay this information to the CIA. From Corporal Buffam’s perspective, notifying the FBI was simply part of the understanding that there was to be an open sharing of information.
21. On December 1, 2001, Corporal Buffam asked the RCMP liaison officer in Singapore to liaise with foreign agencies to find out if Mr. Almalki had arrived in Kuala Lumpur on November 29, and to obtain copies of any documentation he might have produced. However, six days later, on December 7, the RCMP’s The understanding that there was to be an open sharing of information is discussed above at Chapter 3, paragraph 77.
Criminal Intelligence Directorate (CID) instructed the liaison officer to immediately discontinue all efforts to obtain information from foreign agencies, on the basis that such efforts could jeopardize the integrity of the investigation.
22. On December 2, 2001, the RCMP finally confirmed that Mr. Almalki had left Canada for Malaysia on November 27. The RCMP also became aware on that day that Mr. Almalki’s brother had been with him at the airport. Inspector Cabana advised Superintendent Garry Clement (the Assistant Criminal Operations Officer at RCMP “A” Division) of Mr. Almalki’s confirmed departure, and Superintendent Clement advised the Ottawa Police Service and a foreign agency. When asked why he had advised this foreign agency of Mr. Almalki’s departure, Superintendent Clement said that he believed that Mr. Almalki had left Canada under very suspicious circumstances, and the RCMP wanted the foreign agency’s assistance in monitoring and locating him. Mr. Almalki’s departure was suspicious, Superintendent Clement elaborated, because he was so surveillance conscious and because, though he spoke of concern for his wife and children, he flew separately from them to Amsterdam (en route to Malaysia). Superintendent Clement told the Inquiry that he did not have information as to why Mr. Almalki might have been travelling on his own, and that he did not specifically consider that there might be legitimate reasons for Mr. Almalki to decide to fly to Amsterdam separately from his wife and children.
23. Prior to the departure of Mr. Almalki’s wife and children on November 28, 2001, the RCMP recommended to officials at Dorval airport in Montreal that the family’s baggage (which consisted of six to eight suitcases) be x-rayed. When airport officials x-rayed and searched the luggage, they found a computer tower. On the instructions of Inspector Cabana, officials seized the computer, and Inspector Cabana obtained a warrant to copy the hard drive. In early January 2002, a U.S. agency requested a copy of the data from the hard drive and the RCMP’s analysis of that data. While the data and analysis were not shared with the U.S. agency at that time, the data from the analysis of the hard drive was uploaded to the RCMP Supertext database and included on the CDs that were provided to U.S. agencies in April 2002 (as discussed below). Events during Mr. Almalki’s stay in Malaysia
24. Mr. Almalki stayed in Malaysia from late November 2001 until approximately April 2002. He did not return to Canada on December 25, 2001 as scheduled. CSIS learned in late January 2002 that Mr. Almalki had postponed his return to Canada because of an illness in the family. Project A-O Canada
learned on January 22, 2002, during an interview of one of Mr. Almalki’s brothers, that Mr. Almalki and his family had extended their stay in Malaysia because Mr. Almalki’s wife had encountered medical complications surrounding her pregnancy and could not travel back to Canada in time to give birth to the baby.
25. During the time that Mr. Almalki was in Malaysia, CSIS was in contact and shared information with the Malaysian authorities regarding Mr. Almalki. In late April 2002, the Service provided the Malaysians with a message containing business information and information relating to the threat from Islamic extremism. The message was accompanied by a caveat.
26. In March 2002, the Service granted a foreign agency permission to share information regarding one of Mr. Almalki’s business contacts with authorities in Bahrain, and that information was apparently shared with Bahraini authorities. Though Mr. Almalki travelled to Bahrain in early April 2002, on his way to Syria, the information that the foreign agency apparently shared with Bahraini authorities was not about Mr. Almalki’s travel plans. The Inquiry found no evidence that the Service was aware of Mr. Almalki’s plan to travel to Bahrain. Possible extradition to Syria
27. In December 2001, several weeks after Mr. Almalki had arrived in Malaysia, CSIS learned that Malaysian authorities allegedly had a Syrian warrant for Mr. Almalki’s arrest and were considering extraditing Mr. Almalki to Syria. The RCMP also learned about the alleged warrant, and its assistance was sought in convincing Malaysian authorities to arrest and extradite Mr. Almalki. Neither the RCMP nor CSIS was provided with evidence of the arrest warrant, and neither organization requested evidence of it. Superintendent Clement testified at the Arar Inquiry that the normal practice with respect to a warrant having crossborder effect was to put a notice of the warrant in Interpol, but that there was no Interpol notice of the alleged Syrian warrant.
28. The Service’s position on the possible arrest/extradition, which it shared with foreign agencies, including Malaysian authorities, was that it would defer to Malaysian law and judgment, but wished to be notified of any arrest. The RCMP, in response to at least two requests from a foreign agency that it share information that might assist the foreign agency in convincing the Malaysians to make the arrest, told the foreign agency that it would not collaborate in any way or support its plan.
29. The RCMP also had discussions with the same foreign agency about a possible plan to arrest Mr. Almalki (apparently without the participation or concurrence of Malaysia) prior to his scheduled return to Canada (on December 25). At a meeting on December 10, 2001 between representatives of the foreign agency, Superintendent Clement, Inspector Cabana, Corporal Buffam, Staff Sergeant Callaghan and Staff Sergeant Corcoran (a member of the Ontario Provincial Police seconded to Project A-O Canada), the foreign agency advised that it would try to locate and apprehend or intercept Mr. Almalki before December 25. Superintendent Clement and Inspector Cabana assumed that the foreign agency would only arrest Mr. Almalki if he travelled through the country in which that foreign agency had jurisdiction, or through a country with which the agency had some sort of relationship. According to Superintendent Clement, the RCMP attendees at the meeting made it clear to the foreign agency that it would not be permitted to arrest Mr. Almalki on Canadian soil.
30. Late in December 2001, CSIS also learned that a request had been made of authorities in another country to arrest and deport Mr. Almalki to Syria. CSIS was advised of this request and was asked whether it had any information to warrant an arrest, and how it felt about the request. The Service responded by stating that Canadian officials would meet Mr. Almalki once he arrived in Canada and that this would suffice for CSIS.
31. The Service did not notify or consult with DFAIT about the possible arrest or extradition of Mr. Almalki. According to a senior CSIS official, the Service would have notified DFAIT if it obtained information that Mr. Almalki had been arrested. The official said that CSIS’ operating practice was to inform DFAIT if it became aware that a Canadian living or travelling abroad has had legal action taken against him.
32. It is not clear whether or not the RCMP consulted with DFAIT about Mr. Almalki’s possible arrest or extradition. Superintendent Clement said he had reason to believe that a representative of the foreign agency that was seeking the RCMP’s assistance with the extradition would be contacting DFAIT, most likely Scott Heatherington, the Director of DFAIT’s Foreign Intelligence Division (DFAIT ISI). Superintendent Clement also told the Inquiry that the foreign agency’s efforts to engage the RCMP in the arrest and extradition of Mr. Almalki were documented in RCMP situation reports (SITREPS), which were sent to RCMP headquarters, and that it was the responsibility of headquarters and not the investigators to brief other government agencies, including DFAIT. However, the Inquiry did not receive any evidence of either a conversation between a representative of the foreign agency and Scott Heatherington (or
anyone at DFAIT), or any briefing of DFAIT by RCMP headquarters, regarding the possible arrest or extradition of Mr. Almalki. Border interview by Malaysian authorities
33. In early January 2002, Mr. Almalki travelled to the border of Singapore and Malaysia to renew his visa, which was going to expire in February. According to Mr. Almalki, when he crossed the border back into Malaysia, he was questioned by Malaysian immigration officials about when he would be returning to Canada, his religion and his business. Mr. Almalki observed that the “regional chief” was getting questions and sharing answers with someone on the phone. According to Mr. Almalki, the regional chief advised him that the Canadian government had asked Malaysian authorities to question him.
34. The Inquiry found no evidence that the January 2002 interview of Mr. Almalki by Malaysian officials was conducted at the request of the Canadian government. CSIS told the Inquiry that it did not request the border interview, and that it did not learn until late January 2002 that the interview had taken place. The RCMP told the Inquiry that neither the RCMP database nor inquiries with various members involved in Project A-O Canada supported the conclusion that the RCMP had asked Malaysian authorities to question Mr. Almalki.
January 2002 searches and interviewsEdit
35. As discussed in chapter 4, paragraphs 121 to 133, as part of its investigation, Project A-O Canada carried out searches and conducted interviews on January 22, 2002. Among the residences searched were those of Mr. Almalki and one of his brothers. Project A-O Canada members also interviewed several of Mr. Almalki’s family members, including two of his brothers and a cousin who had sold the Almalki family plane tickets to Malaysia. According to Mr. Almalki, the officers who interviewed his cousin asked the cousin whether she thought that Mr. Almalki would go to Syria. One of the RCMP officers who conducted this interview told the Inquiry that she does not recall asking Mr. Almalki’s cousin this question.
FBI / Project A-O Canada meeting in February 2002Edit
36. In mid-February 2002, members of the Project A-O Canada team met with five FBI personnel over several days. During the visit, the FBI sought and received access to Project A-O Canada files, which included documents seized during the January 22 searches. Among these documents were documents related to Mr. Almalki’s businesses.
Sharing of the Supertext databaseEdit
37. As discussed at Chapter 4, paragraphs 131 to 133, in April 2002, the RCMP provided U.S. agencies with three CDs containing the RCMP’s Supertext database. The CDs were sent at the request of those agencies. Among the documents contained on the CDs were documents that had been seized during the January 22, 2002 search of Mr. Almalki’s residence and copied from Mr. Almalki’s hard drives, such as:
- email messages regarding Mr. Almalki’s business activities, including one
email from Mr. Almalki to Industry Canada requesting a corporate name change (from TS Linktk International Corp. to DSP Group Inc.);
- other documents from Mr. Almalki’s business, including invoices and
Ontario Ministry of Finance information questionnaires; and
- a typewritten report prepared by Mr. Almalki containing his recollection
of his early 2000 CSIS interview. 38. The CDs also contained documents related to Project A-O Canada’s investigation of Mr. Almalki, including:
- Project A-O Canada SITREPs containing information about the investigation
of Mr. Almalki, including one that listed Mr. Almalki’s companies and described Mr. Almalki as a “procurement officer;”
- documents concerning the time that Mr. Almalki had spent in
- notes made by RCMP officers involved in Project A-O Canada’s investigation;
- notes made by RCMP officers involved in the January 22, 2002 searches,
including a note indicating that two switchblades were found in Mr. Almalki’s residence;
- documents stating names alleged to be Mr. Almalki’s “aliases”, including
a document dated August 2001 in which the name “Abu Wafa” appeared;
As discussed at Chapter 8, paragraph 40, Mr. Almalki told the Inquiry that Malaysian officials interrogated him in Syria, and that they had a report listing several trade names that Mr. Almalki had tried (unsuccessfully) to register in Canada. As discussed at Chapter 8, paragraph 33, Mr. Almalki told the Inquiry that his Syrian interrogators questioned him about the time he had spent in Afghanistan. As discussed at Chapter 8, paragraph 38, Mr. Almalki told the Inquiry that his Syrian interrogators had a report, which they told him had been provided by Canada, indicating that a search of Mr. Almalki’s parents’ home in Canada had turned up weapons. As discussed at Chapter 8, paragraph 25, Mr. Almalki told the Inquiry that his Syrian interrogators showed him a report that referred to him as an “active member of al Qaeda” with the code name “Abu Wafa.” According to CSIS records, Mr. Almalki advised CSIS during an interview in the summer of 1998 that the name “Abu Wafa” appeared on his Syrian birth certificate.
- photographs of Mr. Elmaati, Mr. Almalki and other targets of or persons
of interest to the investigation;10
- documents referring to a named associate of RCMP targets;11 and
- an organizational chart linking Mr. Almalki to Ottawa-based “Bin Laden
Mr. Almalki detained in SyriaEdit
Mr. Almalki leaves MalaysiaEdit
39. On May 10, 2002, CSIS and Project A-O Canada learned from foreign agencies that Mr. Almalki was no longer residing in his apartment in Malaysia. The foreign agencies did not know where Mr. Almalki had gone. On May 30, 2002, a foreign agency advised Project A-O Canada that Mr. Almalki had left Malaysia and travelled from Singapore to Bahrain on April 4, 2002 and then to Qatar on April 6. The Inquiry found no evidence to suggest that Canadian authorities either were aware of or communicated Mr. Almalki’s plans to travel to Syria. CSIS learns that Mr. Almalki is detained in Syria.
40. In late May 2002, the Service learned that Mr. Almalki might be under detention in Syria. On May 31, 2002, the Service shared this information with DFAIT and the RCMP CID, and asked the RCMP to keep the information tightly controlled until the RCMP and Service had an opportunity to discuss the Canadian implications of Mr. Almalki being detained abroad. In the middle of June 2002, the Service obtained information confirming that Mr. Almalki was detained in Syria.
41. According to one senior CSIS official, the Service did not view Mr. Almalki’s detention in Syria as an opportunity to obtain information from him, in part because the Service had conducted several interviews with Mr. Almalki. The same senior CSIS official, when asked whether the Service had any concerns about how Mr. Almalki would be treated in Syria, said that matters concerning Mr. Almalki’s detention were left to DFAIT. RCMP learns of Mr. Almalki’s detention
42. As noted above, the RCMP learned of Mr. Almalki’s possible detention from CSIS on May 31, 2002. On that day, a senior CSIS official telephoned 10 As discussed at chapter 8, paragraph 106, Mr. Almalki told the Inquiry that during a post-release interrogation in April 2004, his Syrian interrogators had a report containing photographs of individuals; he observed that the report had been faxed on March 29, 2004. 11 Mr. Almalki told the Inquiry that his Syrian interrogators asked him about this individual.
Corporal Richard Flewelling of CID and advised him that Mr. Almalki might be in custody. According to Corporal Flewelling’s notes of that conversation, the CSIS official wanted to know if the RCMP had enough information to support charges and if the RCMP wanted him back. Corporal Flewelling and the CSIS official agreed that they would discuss these issues further at a meeting on June 3. (The meeting is discussed in more detail below.) Following the conversation, CSIS sent Corporal Flewelling a message with more details about Mr. Almalki’s possible detention. DFAIT learns of Mr. Almalki’s detention
43. Though CSIS reported that it orally advised DFAIT on May 31, 2002 that Mr. Almalki might be detained in Syria, the first DFAIT record of Mr. Almalki’s possible detention is dated June 6, 2002. On June 6, Scott Heatherington of DFAIT ISI made a note that Mr. Almalki was in custody in Syria. Mr. Heatherington could not recall who gave him this information, but thought that it could have been CSIS. On June 7, James Gould, the Deputy Director of DFAIT ISI’s intelligence policy division, wrote in his notebook that, according to the RCMP, Mr. Almalki was of “major interest” to both the United States and Canada and was in custody in Syria. He also noted that, according to the RCMP, the Embassy in Damascus probably didn’t know about the possible detention.
44. Though DFAIT ISI had knowledge of Mr. Almalki’s possible detention by June 6, 2002, DFAIT ISI did not immediately share the information with the Consular Affairs Bureau. The reason for this, according to Mr. Heatherington and to Don Saunders, a policy advisor in DFAIT ISI, is that ISI has a practice of passing only confirmed, or at least reliable, information to the Consular Affairs Bureau, and the information about Mr. Almalki’s detention had not yet been confirmed. Mr. Saunders explained that DFAIT had only received snippets of information from CSIS and a foreign agency, and that these snippets were too tentative to warrant passing them on to the Consular Affairs Bureau.
45. Mr. Saunders stated that DFAIT ISI’s practice of confirming information before passing it on to the Consular Affairs Bureau included making inquiries with the source of the information, but he could not recall whether ISI made any inquiries of the foreign agency or CSIS. Nor could he recall when the information about Mr. Almalki’s detention was sufficiently confirmed and specific that it could be passed along. He thought that the information might have been confirmed later in June, but he could not recall exactly when.
46. According to Mr. Heatherington, ISI received confirmation by June 26, 2002 that Mr. Almalki was in custody in Syria, though he could not recall the
source of the confirmation. He made a note sometime at the end of June suggesting that Mr. Almalki had gone to Syria via Bahrain and that he was awaiting CSIS’ advice. He noted on June 26 that Mr. Almalki had been arrested in Syria. Also on June 26, Mr. Heatherington prepared a classified memo for the Deputy Minister of Foreign Affairs, copied to the Consular Affairs Bureau, regarding the status of several Canadians detained abroad. The memo said that Mr. Almalki was in detention somewhere in Syria and that CSIS was trying to ascertain his location. Another memorandum, dated August 6, 2002 and signed by Mr. Heatherington stated, “We do not know the precise date he was arrested but we only became aware of his presence in Syria in late June.”
47. Gar Pardy, Director General of DFAIT’s Consular Affairs Bureau, recalled learning of Mr. Almalki’s detention at some point in late July 2002, when he received a copy of Mr. Heatherington’s June 26 memo.12 Mr. Pardy stated that the June 26 memo triggered the Consular Affairs Bureau’s action. When he received it in late July, he asked Myra Pastyr-Lupul, the consular case management officer responsible for Africa and the Middle East, to see what she could find out about Mr. Almalki. 48. Franco Pillarella, Canadian Ambassador to Syria, learned of the detention on July 4, 2002 at a meeting with Stephen Covey (the RCMP liaison officer in Rome) and General Khalil of the Syrian Military Intelligence (“SyMI”).13 The embassy took no consular action at that time; Ambassador Pillarella believed that the Consular Affairs Bureau was aware of Mr. Almalki’s detention and that the Embassy could not act until it received instructions from the Consular Affairs Bureau.14 As discussed above, however, while Ambassador Pillarella believed that the Consular Affairs Bureau was aware on July 4, 2002 of Mr. Almalki’s detention, according to Mr. Pardy the Consular Affairs Bureau did not learn of the detention until late July 2002. 12 Mr. Pardy explained that classified memoranda from ISI were communicated to him by way of a special courier. The courier would make an appointment to meet with Mr. Pardy and show him the information. Mr. Pardy would not be permitted to retain that information. According to Mr. Pardy, the courier would only come when there was more than one piece of information to be delivered and therefore it would not be unusual for him not to see a memorandum until several days or even weeks after it was written. 13 This meeting is discussed in some detail in at paragraphs 170 to 173 of Chapter 4. Ambassador Pillarella does not have any notes of the meeting. Inspector Covey’s report of the meeting indicates that “other priority cases” were discussed, but does not mention Mr. Almalki. When interviewed, Inspector Covey stated that he was unsure whether or not Mr. Almalki’s name was raised at the meeting. 14 Ambassador Pillarella’s belief that the Consular Affairs Bureau was already aware of the detention in early July was based on his expectation that if the RCMP (Inspector Covey) was obtaining information about a detained Canadian, the appropriate consultation to facilitate such action had occurred at DFAIT headquarters.
Discussions regarding criminal investigation of Mr. Almalki RCMP / FBI meetings regarding an FBI criminal investigation
49. In late May 2002, Project A-O Canada members had discussions with members of the FBI and other U.S. agencies regarding a possible FBI criminal investigation of Mr. Almalki and his associates. At a meeting on May 21, 2002, an FBI member urged the Project A-O Canada members to present the status of their investigation to FBI prosecutors in Washington. The hope was that such a presentation would convince the FBI prosecutors to launch their own criminal investigation.
50. Project A-O Canada members determined that it would be desirable to lobby for a criminal investigation in the United States. Chief Superintendent Couture said he believed that this would enable the RCMP to obtain information from the FBI more quickly. Inspector Cabana said he thought that an FBI criminal investigation would allow the RCMP to get access to more information for its own investigation, and in a format that would be admissible in court. Superintendent Clement also believed that an FBI criminal investigation would generate information that could be used by the RCMP in court.
51. On May 31, 2002, Inspector Cabana and Staff Sergeants Callaghan and Corcoran gave a presentation to members of the FBI and other agencies at FBI headquarters in Washington D.C. The Project A-O Canada members asked the U.S. officials to consider the possibility of commencing a criminal investigation with respect to Mr. Almalki and his associates.
52. The RCMP’s presentation, entitled “The Pursuit of Terrorism: A Canadian Response” included a general description of the Project A-O Canada investigation and an overview of several individuals who were of interest to Project A-O Canada, including Mr. Almalki and Mr. Elmaati. The presentation characterized Mr. Almalki as an alleged procurement officer and referred to the accounting records for Mr. Almalki’s businesses. A concluding slide, entitled “Project A-O Canada: What’s Next” indicated that the RCMP intended to interview Mr. Almalki.
53. An updated version of the presentation, excluding speaking notes, was sent to the Americans, at the request of the FBI, on July 22, 2002.
54. Project A-O Canada was not successful in convincing the FBI to commence a criminal investigation.
RCMP / CSIS meetings regarding criminal chargesEdit
55. On June 3, 2002, CSIS and RCMP officials (including Chief Superintendent Couture, the Officer in Charge of “A” Division’s Criminal Operations Unit, Inspector Cabana, Staff Sergeants Corcoran and Callaghan and Corporal Flewelling) met at CSIS headquarters to discuss possible criminal charges against Mr. Almalki. The RCMP indicated that it was not yet prepared to lay charges because it did not have sufficient evidence. As well, according to Inspector Cabana, there was no urgency to lay a charge against Mr. Almalki because he (like Mr. Elmaati) had left Canada and was not expected to return.
56. The RCMP’s summary of the June 3 meeting reported that “CSIS was hoping to approach the Syrians on the basis that the RCMP were charging Almalki with terrorist offences and wanted him returned back to Canada.” When interviewed, a senior CSIS official who attended the June 3 meeting stated that this report did not precisely describe the position taken by CSIS at that meeting. According to the CSIS official, CSIS asked the RCMP about the status of its investigation and advised the RCMP representatives that, if they decided to lay charges, the Service was prepared to assist by engaging foreign agencies.
57. When asked about this offer to assist the RCMP, the senior CSIS official stated that these were just discussions. He said that in situations where CSIS can assist the RCMP in moving an investigation forward, it generally will try to do so.
58. Whether the RCMP could lay charges against Mr. Almalki was discussed again at a June 21, 2002 meeting between RCMP and CSIS officials. Corporal Flewelling, who attended the meeting, noted that the officials discussed whether the RCMP had enough evidence to charge Mr. Almalki under Bill C-36 and, if so, whether the RCMP wanted him back in Canada so that he could be charged. When asked at the Arar Inquiry whether the RCMP decided at the meeting to charge Mr. Almalki, Corporal Flewelling said he could not recall if a definitive decision was made.
59. According to Corporal Flewelling’s notes of the June 21 meeting, the attendees also discussed gaining access to Mr. Almalki in Syria for the purposes of conducting an interview. Corporal Flewelling noted, “The question is really how is Syria going to play,” by which he meant that the main issue was whether the Syrians would allow the RCMP to interview Mr. Almalki. As discussed below at paragraphs 114 to 168, starting in the summer of 2002, Canadian officials (primarily in the RCMP and DFAIT) had extensive discussions about interviewing Mr. Almalki in Syria and sending questions for Syrian officials to put to Mr. Almalki.
Role of Malaysia in Mr. Almalki’s detention/interrogation in SyriaEdit
60. As discussed in chapter 8, paragraphs 39 to 43, Mr. Almalki stated that he was interrogated in Syria in July 2002 by several people whom he believed to be Malaysian officials. Since Malaysia did not respond to the Inquiry’s requests that it participate in the Inquiry, the Inquiry was unable to confirm whether a Malaysian agency went to Syria to question Mr. Almalki. CSIS, DFAIT and the RCMP appear to have no information that indicates whether or not this occurred.
61. As discussed at paragraph 40 of chapter 8, Mr. Almalki stated that he believes that the Malaysian officials questioned him in Syria at the request of the Canadian government, or at least based on information that Malaysian officials received from the Canadian government. The Inquiry found no evidence that Canadian officials asked Malaysian officials to interrogate Mr. Almalki in Syria or elsewhere, or that Canadian officials supplied Malaysian officials with questions, information or documents with which to interrogate Mr. Almalki. Mr. Almalki’s torture allegation / Impact of Mr. Elmaati’s torture allegation
62. While Mr. Almalki was arrested and detained in Syria in May 2002, Canadian officials did not learn of his allegation that he was tortured in Syria until November 4, 2003. On that day, Maher Arar, who had just been released from Syrian detention, gave a press conference at which he reported meeting Mr. Almalki at Sednaya prison. Mr. Arar stated that, when they met, Mr. Almalki told him that he had been severely tortured while in detention.
63. Though Canadian officials did not learn of Mr. Almalki’s allegation until November 2003, they were generally aware that Syria had a poor human rights reputation. They were also aware that another Canadian citizen, Mr. Elmaati, had made a similar allegation. In August 2002, while in detention in Egypt, Mr. Elmaati told DFAIT consular officials that he was tortured while in Syrian detention.
64. In the Arar Inquiry, Justice O’Connor found that CSIS officials had or likely had during the relevant time knowledge of Syria’s poor human rights reputation, including reports that Syrian security agencies used torture to interrogate detainees. He also found that CSIS officials were familiar with the Amnesty International and U.S. State Department reports on Syria and assessed these documents as credible. He noted, however, that CSIS Director Ward Elcock testified that, without knowing the evidence on which these reports relied, CSIS could not conclude absolutely that Syria engaged in torture.
65. CSIS had contrary information from a European intelligence agency, which advised the Service that it was not aware of any Western citizens being tortured by a certain Syrian agency. CSIS had previously assessed this information in conjunction with public information regarding Syria’s human rights record and concluded that there was no solid information linking the specific Syrian agency to human rights abuses. However, Jack Hooper, who during the relevant period was Director General of CSIS’ Toronto Region, and then CSIS’ Assistant Director of Operations, testified during the Arar Inquiry (though not in relation to the torture allegations of Mr. Elmaati and Mr. Almalki) that the Service put undue reliance on the foreign agency’s information and performed an improper balancing act when assessing these reports against information in the public record.
66. CSIS learned of Mr. Elmaati’s torture allegation on August 12, 2002. Two factors caused the Service to question the credibility of the allegation. First, the Service was aware of an al-Qaeda training manual that instructed individuals, if they were detained, to claim that they had been abused or tortured. Second, the Service had information suggesting that Mr. Almalki was in good health, despite his incarceration, and being treated well by Syrian officials.
67. One CSIS official was asked how he reconciled the information suggesting that Mr. Almalki was in good health with Mr. Elmaati’s torture allegations. The official said that he was reluctant to draw a direct correlation between the treatment of one person and another because people can be treated differently in similar circumstances. He also said that assessing the conditions in which Mr. Almalki and Mr. Elmaati were being held was a DFAIT function, and not something that, in view of his role, he was particularly concerned about.
68. While most of the information that CSIS had concerning Mr. Almalki’s treatment suggested that he was in good health and not being mistreated, CSIS also had some information suggesting that he had not been treated fairly earlier. A senior CSIS official was asked how this affected his assessment of
Mr. Almalki’s situation. He responded that he did not know what to make of the information. The official was also asked whether he was aware of the view that mistreatment, where it occurs during incarceration, generally occurs early in the period of incarceration. He responded that he would not know what happens to individuals at different periods of their detention. DFAIT’s view
69. DFAIT officials from the Consular Affairs Bureau and DFAIT’s Security and Intelligence Bureau (DFAIT ISD) generally testified before the Arar Inquiry to having some understanding that Syria had a poor human rights reputation. They based their conclusions on media reports, first-hand experience with Syrian officials, communications with Syrian citizens, DFAIT human rights reports, U.S. State Department reports, reports from various human rights organizations and other open sources.
70. DFAIT officials’ specific knowledge of Syria’s human rights reputation varied. Many testified to having some knowledge that Syrian security authorities might use torture. Many were also aware that Syria might hold prisoners incommunicado for a period of time to extract information before disclosing the individual’s whereabouts. The then-Minister of Foreign Affairs, William Graham, had no knowledge of specific acts of torture in Syria or details about prison conditions and interrogation methods, but was generally aware that Syria’s reputation included repression of internal dissent, especially with respect to the Muslim Brotherhood. Ambassador Pillarella, then Canada’s ambassador to Syria, stated that in 2002 and 2003 he knew of the allegations of torture in the U.S. State Department reports, but that it was extremely difficult to verify. He said that as the Ambassador to Syria during those years he did not have any indication that there were serious human rights abuses that he could verify. However, he cited one example of a Syrian woman detained incommunicado by Syrian security forces for six months without charges. She told Ambassador Pillarella that prison conditions were appalling but that she had not otherwise been mistreated or tortured.
71. Léo Martel, who served as consul at the Canadian Embassy in Damascus starting in September 2002, told the Inquiry that, prior to taking up this position, he had read extensively about Syria and the human rights situation there. He was aware that political dissidents and opponents of the regime had been mistreated by the Syrian government, but when he arrived in Syria in 2002, he did not think that dual nationals (dual Canadian-Syrian citizens for example) would be treated the same way. Mr. Martel said that during the three years
that he occupied the position of consul in Damascus, he became aware of many dual nationals (Canadian-Syrians and Australian-Syrians, to whom the Embassy also provided services) being detained by the Syrian security services. He said that some of these dual citizens told him that they had been mistreated while in detention, while others told him they had not. He said that no two cases were the same.
72. When Mr. Martel took up the position of consul at the Canadian Embassy in Damascus in 2002, he was not provided with the current DFAIT human rights report or the publicly available reports by Amnesty International and Human Rights Watch as part of his orientation, but he said that he was already very familiar, from his past experience and reading, with the situation in Syria. He also said that each individual at the Embassy had a responsibility to keep himself or herself apprised of the situation in the region, by reading relevant documents and attending weekly meetings with the Head of Mission.
73. While DFAIT officials were generally aware of Syria’s poor human rights reputation, two DFAIT officials (Ambassador Pillarella and Daniel Livermore, the Director General of DFAIT ISD) said they were reluctant to draw conclusions about the treatment of specific detainees without specific evidence. In contrast, while Mr. Pardy did not believe that a political prisoner in Syrian detention would be subjected to torture in every case, his “working assumption” was that torture was taking place, and he would need to be convinced it was not. Mr. Pardy based this assumption on the public record and his experience with other consular files in the region.
74. There is no document that clearly sets out Mr. Pardy’s “working assumption.” However, he testified that he believed that anyone in Ottawa who deals with such cases would read into the circumstances the possibility of torture or serious abuse. Mr. Pardy believed that DFAIT officials—both at his level and above—were aware of and shared his working assumption.
75. Konrad Sigurdson, who replaced Mr. Pardy as Director General of the Consular Affairs Bureau on September 1, 2003, stated that he worked under the assumption that there was some mistreatment of individuals imprisoned in Syrian jails. He said that he believed most of his colleagues worked under the same assumption, but that no one knew the extent of the mistreatment.
76. On August 12, 2002, Mr. Elmaati told consular officials in Egypt that he had been tortured while in Syrian detention. The Canadian Embassy in Syria was not immediately advised of Mr. Elmaati’s torture allegation. Ambassador Pillarella said that he did not learn of the allegation until later in 2002, possibly in November or December of 2002, and could not recall how he had learned about it. Léo Martel, who arrived in Damascus in September 2002, did not learn of Mr. Elmaati’s torture allegation until approximately September 2005. When asked why consular officials in Damascus learned of Mr. Elmaati’s allegation so late, Mr. Pardy explained that when the Embassy in Cairo sent the email message reporting the allegation, it did not include the Embassy in Damascus on the distribution list. Mr. Pardy said that consular officials in Ottawa should have noticed this, and forwarded the message to Damascus, but that unfortunately they did not.
77. Mr. Pardy and Ms. Pastyr‑Lupul, consular officials based in Ottawa, suggested that Mr. Elmaati’s torture allegations influenced DFAIT’s assessment of Mr. Almalki’s situation. When asked about the likelihood that Mr. Almalki was being tortured while in Syrian detention, Mr. Pardy said that, while one could not be absolutely certain, there was a probability, based on his knowledge of Syrian behaviour in these kinds of circumstances, that “something nasty” was happening to Mr. Almalki. In Mr. Pardy’s view, Mr. Elmaati’s allegation of torture, which was the first direct information of a Canadian being mistreated in Syrian custody, increased the probability that Mr. Almalki was being mistreated. When Ms. Pastyr‑Lupul was asked whether she was concerned that Mr. Almalki might be facing the same risk of torture that Mr. Elmaati had alleged, she said that the thought had crossed her mind.
78. At the Arar Inquiry, investigators in Project A-O Canada, officials in RCMP CID and the RCMP liaison officer with responsibility for Syria were questioned regarding their knowledge of Syria’s human rights reputation. Project A-O Canada investigators either had no knowledge of Syria’s human rights record or only generally knew that Syria operated under different standards from Canada. RCMP CID officials testified that they were generally aware that Syria did not have the same system or standards as Canada, but were not aware that torture might be used during interrogation of detainees. Staff Sergeant Fiorido, the liaison officer responsible for facilitating the RCMP’s contact with Syrian agencies, testified to having basic knowledge from media sources that Syria was a country in which human rights abuses might be a concern.
79. The RCMP learned about Mr. Elmaati’s torture allegation from DFAIT ISI on August 12, 2002. Several RCMP and/or Project A-O Canada members stated that they had doubts about the validity of the allegation. One Project A-O Canada member stated that he was aware that CSIS believed that there were gaps in Mr. Elmaati’s alleged confession indicating that he was not tortured. The same member was also aware of the al-Qaeda training manual instructing detainees to claim that they were tortured. Another Project A-O Canada member cited several reasons to doubt the validity of Mr. Elmaati’s allegation, including the al‑Qaeda training manual, and a comment that Mr. Elmaati had made about a nonexistent Guantanamo Bay camp. An RCMP member suggested that Mr. Elmaati might be looking for leverage to gain something that he wanted.
80. The first consular action with respect to Mr. Almalki was taken on July 30, 2002. Mr. Pardy instructed Ms. Pastyr‑Lupul to make inquiries into Mr. Almalki’s citizenship in order to verify that he was a Canadian citizen and therefore entitled to consular assistance. Ms. Pastyr‑Lupul carried out this request that day. 81. On August 2, 2002, Ms. Pastyr‑Lupul wrote a note to remind herself to work on the “Dip Note for Almalki”. On August 13, Ms. Pastyr‑Lupul advised the Embassy in Damascus that Mr. Almalki had been detained by Syrian authorities and asked that the Embassy send a diplomatic note requesting consular access. Ms. Pastyr‑Lupul attributed this 11-day gap to her heavy caseload (which included the Kazemi case,16 the Elmaati case, and other cases spanning 61 countries) and a medical condition for which she was under a doctor’s care. Diplomatic notes 82. On the request of Ms. Pastyr‑Lupul, the Canadian Embassy in Damascus sent a diplomatic note to Syria on August 15, 2002, requesting consular access to Mr. Almalki. In her instructions, Ms. Pastyr‑Lupul had requested that the Embassy follow up on the diplomatic note if a response was not received within two weeks. The Embassy agreed to follow up in two weeks, but advised Ms. Pastyr‑Lupul that previous experience suggested that the Syrian Ministry of Foreign Affairs (MFA) would likely not respond in less than one month. The Embassy also advised her that this delay could be longer if the detention was for political reasons or if Mr. Almalki was a Syrian citizen, and that pressure from the Embassy rarely resulted in a more rapid response. 83. On September 3, 2002 and again on September 12, 2002, the Embassy contacted the Consular Department of the Syrian MFA to follow up on the 16 Zahra Kazemi was an Iranian-Canadian journalist who died in Iranian custody on July 11, 2003 after she was arrested for taking pictures outside a prison during a student protest in Tehran.
diplomatic note. The MFA informed the Embassy that it had sent the note to the Syrian Minister of the Interior and was waiting for a response. 84. Syria did not respond to the Embassy’s August 15, 2002 diplomatic note until April 26, 2003. Its response was that Mr. Almalki was Syrian and therefore subject to Syrian laws. Neither the Embassy nor the Consular Affairs Bureau responded to this note. Upon receiving the note, Mr. Martel passed it on to the Consular Affairs Bureau and Ambassador Pillarella. He did not receive instructions to follow up with another note or otherwise pursue the issue of consular access further. 85. In August 2003, DFAIT provided to CSIS a copy of the CAMANT note containing the text of Syria’s April 26, 2003 diplomatic note. Ambassador Pillarella meets with Deputy Minister Haddad and General Khalil 86. On October 20, 2002, Ambassador Pillarella met with Deputy Minister Haddad of the Syrian MFA to discuss Mr. Arar. At the request of Mr. Pardy, Ambassador Pillarella also raised the case of Mr. Almalki, and was told that Deputy Minister Haddad would look into the case. Though the Inquiry did not find any evidence to suggest that Deputy Minister Haddad looked into Mr. Almalki’s case, as promised, he did arrange a meeting between Ambassador Pillarella and General Khalil for November 3, 2002 to review the case of Mr. Arar. 87. On October 22, 2002, Ambassador Pillarella met with General Khalil. The report of this meeting suggests that the focus of the meeting was Mr. Arar, and that Mr. Almalki was not discussed. 88. Ambassador Pillarella met with General Khalil again on November 3, 2002 at the meeting set up by Deputy Minister Haddad. According to Ambassador Pillarella’s report of the November 3 meeting, Ambassador Pillarella raised the issue of Mr. Almalki and observed that General Khalil seemed “disposed to accept” that Mr. Almalki could meet with a Canadian official. Ambassador Pillarella’s report of the November 3 meeting does not include any other reference to Mr. Almalki. 89. On November 5, 2002, Ambassador Pillarella and Mr. Pardy discussed the Ambassador’s observation that General Khalil seemed disposed to accept that Mr. Almalki could meet with a Canadian official. They concluded that “Canadian official” in this context likely meant an intelligence official and not a consular official. As discussed below in paragraphs 102 to 113 (“CSIS’ Trip to Syria”), DFAIT ISI communicated this to CSIS along with General Khalil’s offer to allow a Canadian intelligence official to visit Damascus to review the information
provided by Mr. Arar. The result was that CSIS officials travelled to Syria in late November 2002 to meet with Syrian officials. 90. According to Mr. Pardy, no one in the Consular Affairs Bureau used General Khalil’s November 3, 2002 invitation as a basis on which to pursue consular access to Mr. Almalki. According to DFAIT, the crucial focus of the October 20, 22 and November 3 meetings with Syrian officials was on establishing access to Mr. Arar. Relationship between Ambassador Pillarella and General Khalil 91. Ambassador Pillarella testified at the Arar Inquiry to having a relatively direct relationship with General Khalil, the head of the SyMI, and, according to the Ambassador, an extremely powerful figure within the Syrian political framework. He said that this relationship was cultivated over the course of 2002, and that the situation regarding consular access to detainees changed tremendously as a result. Ambassador Pillarella testified that he was generally received by General Khalil “in a most friendly manner” and that he believed that the General’s relationship with him was genuine. He also said that General Khalil could always be relied on to keep his word and would respond quickly to requests for consular access and information. 92. Mr. Hooper also commented at the Arar Inquiry on the relationship between Ambassador Pillarella and General Khalil. He attributed what was considered to be the extraordinary consular access to Mr.Arar, at least in part, to the relationship between General Khalil and the Ambassador. He believed that this relationship was the reason that the General extended to CSIS an offer to visit Syria and meet with SyMI officials. According to Mr. Hooper, these were indicators that Ambassador Pillarella and General Khalil had a “reasonable dialogue going on.” DFAIT makes contact with Mr. Almalki’s family 93. On December 10, 2002, Ms. Pastyr‑Lupul spoke with Nazih Almalki, brother of Mr. Almalki, and informed him both of who she was and of the measures that DFAIT had taken in an attempt to gain consular access. Mr. Almalki’s brother told Ms. Pastyr‑Lupul that the family had been pursuing the matter through its own channels for several months, but gave Ms. Pastyr‑Lupul no indication that the family had, by that point, had any contact with Mr. Almalki. The Inquiry received evidence that the Almalki family had earlier met with Senator Terry Stratton to discuss Mr. Almalki’s circumstances and that Senator Stratton’s office had made calls to DFAIT respecting Mr. Almalki.
94. In June 2003, Ms. Pastyr‑Lupul met with Safa Almalki, another of Mr. Almalki’s brothers, to discuss the case. Ms. Pastyr‑Lupul’s report of this meeting states that the family reiterated its wish not to have Mr. Almalki’s name released publicly.17 Her report also says that Safa Almalki asked for Ms. Pastyr‑Lupul’s assistance in obtaining an “Ottawa Police Certificate” stating that Mr. Almalki did not have a criminal record in Canada. A CAMANT note from October 2003 indicates that the family needed the certificate in order to obtain a postponement of Mr. Almalki’s Syrian military service requirements. At some point in October or November of 2003, Ms. Pastyr‑Lupul sent a letter to the Ottawa Police, on the family’s behalf, requesting this certificate. Michael Edelson, Mr. Almalki’s then lawyer, made two similar requests of the RCMP. In June 2003, Mr. Edelson sent a letter to Sergeant Walsh of the RCMP asking for confirmation that Mr. Almalki had no criminal conviction known to the Canadian authorities. According to an RCMP SITREP, the RCMP responded in mid-July 2003 by leaving a telephone message asking that Mr. Edelson confirm in writing that he was Mr. Almalki’s counsel before the RCMP provided any criminal record information. As discussed below in paragraph 184, in November 2003, Mr. Edelson again asked the RCMP for a letter confirming, among other things, that Mr. Almalki had no criminal record in Canada. 95. On October 10, 2003, Ms. Pastyr‑Lupul spoke again with Safa Almalki and assured him that DFAIT was still trying to obtain consular access to Mr. Almalki. In her report of this conversation, she requested that Mr. Martel advise her of any recent diplomatic notes or consular efforts. Mr. Martel’s response confirmed that the only diplomatic note was the one sent to Syria in August 2002, and did not mention any other efforts to gain consular access to Mr. Almalki. Mr. Martel’s meetings with Colonel Saleh 96. In his interview, Mr. Martel indicated that during the period of Mr. Almalki’s detention, he was meeting with Mr. Arar through Colonel Saleh of the SyMI. On more than one occasion, Mr. Martel asked Colonel Saleh unofficially whether he had any information on Mr. Almalki, and whether Mr. Martel could have access to Mr. Almalki. Colonel Saleh refused on every occasion. These unofficial requests and refusals were not documented in a CAMANT note or any other DFAIT document. 17 With respect to the family’s concern about publicity, CSIS had information suggesting that the family was concerned that releasing its name publicly could lead to reprisals against family members.
Consular visits to Mr. Arar and Mr. Elmaati 97. Mr. Arar was detained at Far Falestin starting in early October 2002. He received his first consular visit, from Mr. Martel, on October 23, 2002. He received eight other consular visits (on October 29, November 12 and 26, December 10, 2002, January 7, February 18, April 22 and August 14, 2003) before he was released on October 5, 2003. 98. As discussed in Chapter 4 above, Mr. Elmaati was detained in Syria from November 12, 2001 until about late January 2002, and during that time he did not receive any consular visits. He received eight consular visits while he was detained in Egypt (from late January 2002 until mid-January 2004). Intensity of consular activities 99. Ambassador Pillarella was asked to explain why the consular efforts in Mr. Almalki’s case were less intense than the consular efforts undertaken in the cases of Mr. Arar and Mr. Elmaati. Ambassador Pillarella’s explanation was that the Embassy had been instructed by the Consular Affairs Bureau in Ottawa not to treat Mr. Almalki’s case as a consular case. He stated that Mr. Pardy had informed him that Mr. Almalki’s family did not want DFAIT to pursue his case as a consular case, and as a result the Embassy, from the start, desisted in pursuing the matter. 100. In their interviews, Mr. Martel, Ms. Pastyr‑Lupul and Mr. Pardy disagreed with Ambassador Pillarella on this issue. Mr. Martel stated that while he was aware that the family had some concerns about publicity, he would not have said that the family did not want DFAIT to pursue Mr. Almalki’s case. Ms. Pastyr‑Lupul, who was the Almalki family’s contact person at DFAIT, stated that there was a misconception that the family did not want DFAIT to intervene in Mr. Almalki’s case. According to Mr. Pardy, the Almalki family did not instruct DFAIT not to pursue the matter as a consular case; the family was merely concerned that the diplomatic efforts did not cut across what the family was trying to achieve using its own channels in the Syrian government. Mr. Pardy stated that there was no ambiguity with respect to the status of Mr. Almalki’s case as a consular case and something that DFAIT had to pursue. He acknowledged, however, that the level of consular activity in Mr. Almalki’s case was less than that in the cases of Mr. Elmaati and Mr. Arar, and that the Consular Affairs Bureau lost focus.
RCMP’s meeting with Michael EdelsonEdit
101. On October 4, 2002, Project A-O Canada managers and Department of Justice counsel met with Michael Edelson, Mr. Almalki’s then lawyer. According to the SITREP from October 4, Mr. Edelson expressed concern over the detention of Mr. Almalki in Syria and Mr. Arar in New York, and was assured that they had not been arrested at the request of Project A-O Canada. The SITREP also stated, “The reality about foreign governments also investigating the same A-O Canada targets for terrorist related activities was explained to [Mr. Edelson].” CSIS’ trip to Syria.
102. In November 2002, a CSIS delegation travelled to Syria to meet with officials from the Syrian Military Intelligence (“SyMI”). The trip was arranged in response to an invitation from the SyMI that had been communicated to Ambassador Pillarella at a November 3, 2002 meeting. At that meeting, General Khalil told Ambassador Pillarella that he would agree to allow a Canadian intelligence official to visit Damascus to review the information provided by Mr. Arar. With respect to Mr. Almalki, Ambassador Pillarella observed that General Khalil seemed “disposed to accept” that Mr. Almalki could meet with a Canadian official. The November 3 meeting is discussed above at paragraph 8.
103. DFAIT advised the Service of General Khalil’s invitation in early November 2002. The invitation was discussed by representatives from the RCMP, CSIS, DFAIT ISI, and by Ambassador Pillarella, at meetings on November 4 and 6, and then CSIS communicated its acceptance to the SyMI in the middle of November.
Purpose of the tripEdit
104. The Service’s trip to Syria had several purposes. Among the main ones, it was thought that the trip would allow CSIS to acquire critical intelligence in support of its Sunni Islamic terrorism investigation and to receive and evaluate information about Mr. Arar. CSIS also intended to raise Mr. Almalki’s case with the Syrians, in part to determine what was likely to happen, i.e., whether he was going to be charged under Syrian law, released or otherwise.
105. Though CSIS intended to raise Mr. Almalki’s case with the Syrians, the intent of the trip was not to raise or discuss the conditions under which Mr. Almalki was being held. In fact, according to one CSIS official, CSIS had specifically decided that it would not become involved in the consular process. He recalled a meeting, held prior to the Syria trip, in which DFAIT was quite adamant that the Service not become involved in consular issues. Mr. Saunders, a DFAIT official who attended this meeting, does not recall anyone from DFAIT being adamant that the Service not become involved in consular issues. In his view, it would have been nice for any Canadian official, DFAIT or not, to meet with Mr. Almalki, because at that time DFAIT did not have access to him and did not know how he was doing.
106. According to Mr. Hooper, it was not CSIS’ role to raise Mr. Almalki’s treatment with the Syrian authorities. He stated that there would be some jeopardy in the Service inserting itself into affairs that were appropriately the purview of DFAIT’s Consular Affairs Bureau. He said that while CSIS has a duty to notify other stakeholders if it suspects that reporting it receives is the product of a human rights abuse, and to take precautions to ensure that Canadian assets are not used to perpetrate human rights abuses, it does not have a duty to ask an intelligence interlocutor whether he is torturing somebody or violating a person’s human rights. He said that that is the purview of DFAIT.
107. While DFAIT was apparently concerned that CSIS not become involved in consular issues, the RCMP was concerned that CSIS not do anything in Syria that could affect the criminal investigation into Mr. Almalki and others. At a meeting held prior to the Syria trip, Inspector Cabana asked CSIS not to interview Mr. Almalki, because he thought that an interview could adversely affect the admissibility of any future statement from Mr. Almalki and potentially make a CSIS official a compellable witness at a criminal trial of Mr. Almalki. Inspector Cabana left the meeting with the impression that CSIS would not attempt to speak to Mr. Almalki during the trip. Meeting with the Syrian authorities
108. The CSIS delegation met with officials from the SyMI in Syria on November 23 and November 24. At one of the meetings, Mr. Almalki was discussed. The delegation received information obtained from the questioning of Mr. Almalki, and obtained information about the date of Mr. Almalki’s official arrest (which was different than the date of detention) and the basis of the charges against him. The delegation also received information indicating that the case was before the Syrian courts, but it did not get any indication of what the outcome might be.
109. One of the CSIS officials who had travelled to Syria and met with the SyMI was responsible for evaluating the information that had been provided to the delegation (including the information obtained from the questioning of Mr. Almalki). He had no prior experience in determining if information might be the product of mistreatment, and he did not specifically turn his mind to the possibility of torture or interrogation methods when evaluating the information. However, he emphasized that while he had no specific expertise in evaluating information that might have been obtained by torture, he had a lot of experience in determining how intelligence information might have been acquired.
110. The official stated that if he had turned his mind to the issue of mistreatment, he would not have concluded that the information resulted from mistreatment. For one thing, he found the reporting from the Syrians to be incomplete. He said that he would expect that a person being abused would give up a lot of information, and that the reporting would be more detailed than what the Service had received from the Syrians. In addition, as noted above, he said that the Service had information suggesting that Mr. Almalki was in good health and not being mistreated. Finally, as discussed above at paragraph 65, the CSIS official was aware that a European intelligence agency had previously advised CSIS that the SyMI does not resort to torture or physical abuse during questioning. Debriefing DFAIT
111. The CSIS delegation did not debrief Ambassador Pillarella before leaving Damascus, but one member of the delegation debriefed DFAIT officials about the trip at a meeting in Ottawa on November 28, 2002. The individual who gave the debriefing could not recall if Mr. Almalki was mentioned during the meeting, but said that it would have been normal for him to debrief the attendees on Mr. Almalki as well. Notes made by Jonathan Solomon, a policy advisor in DFAIT ISI who attended the meeting, suggest that Mr. Almalki was discussed. He noted “-Reason to believe Arar & Al-Malki not tortured – significant gaps”. The Inquiry found no evidence that the Service delegation provided DFAIT with details about the information it had received in respect of Mr. Almalki, including, for example, information about when Mr. Almalki was officially arrested and what charges he was facing.
Mr. Almalki’s interrogation in November and December 2002Edit
112. As discussed at paragraph 48 of Chapter 8, Mr. Almalki stated that he believes that he was interrogated in November and December 2002 based on information that Syrian officials had obtained during meetings with the CSIS delegation. He told the Inquiry that he observed one of his interrogators reviewing a typed report entitled “Meeting with the Canadian delegation November 24th 2002.” 113. The Inquiry found no other evidence to suggest that CSIS provided any reports or information about Mr. Almalki to the Syrian authorities during the November 2002 trip to Syria. One member of the CSIS delegation told the Inquiry that (for reasons that I am precluded by national security confidentiality from disclosing here) information could not have been shared with Syria.
Questions for Mr. AlmalkiEdit
114. Between July and December of 2002, the RCMP, at times in consultation with DFAIT ISI (and occasionally with other organizations, including CSIS and the Department of Justice), discussed various possibilities for gaining access to Mr. Almalki in Syria and cooperating with the Syrians to share information about Mr. Almalki.
115. At least four factors drove these discussions. First, according to Staff Sergeant Callaghan, the RCMP hoped that obtaining information from Mr. Almalki would aid the RCMP in fulfilling its mandate of prevention, disruption, gathering of intelligence and, if possible, an eventual prosecution. Second, there was a belief within the RCMP that Mr. Almalki might have information about the alleged threat to Parliament Hill (see Chapter 4 , paragraph 79). Third, Project A-O Canada had been advised by Inspector Stephen Covey (then the RCMP liaison officer in Rome) that Mr. Almalki would probably not return to Canada. Inspector Covey told Project A-O Canada that, because Syria did not recognize Mr. Almalki’s dual Canadian-Syrian citizenship, it would likely not extradite him to Canada if the RCMP laid charges. Based on this advice, Project A-O Canada shifted its focus from charging Mr. Almalki to obtaining information from him. Fourth, prior to Mr. Almalki’s detention, and during Mr. Elmaati’s detention in Syria, the Syrian authorities had expressed willingness to question a detainee on the RCMP’s behalf and share information about (or from) a detainee with the RCMP.
Interview or questionsEdit
116. The RCMP first considered travelling to Syria to interview Mr. Almalki directly. However, the RCMP’s efforts to obtain interview access to Mr. Almalki failed. Moreover, both Ambassador Pillarella and the RCMP liaison officer in Rome advised the RCMP that the Syrian authorities would likely not agree to permit a police agency to interview Mr. Almalki in Syria. 117. After several failed attempts to set up an interview in Syria, the RCMP began to consider sending questions to Syria to be posed to Mr. Almalki by Syrian officials. Aware that Syria might expect something in exchange for questioning Mr. Almalki on its behalf, the RCMP also started to make plans to share with Syria information from the Project A-O Canada investigation.
118. Several RCMP witnesses stated that they believed a direct interview of Mr. Almalki was preferable to sending questions to be asked of him. They explained that with a direct interview, the RCMP would know the conditions under which the questions were answered, and that the results of an interview could be used in court, while the answers to questions posed by the Syrians could not. Consulting with DFAIT about gaining access and sharing information 119. In the course of considering and planning for sending questions to and sharing information with the Syrian authorities, the RCMP held several meetings with officials from DFAIT ISI. July 29 meeting 120. On July 29, 2002, Inspector Cabana met with DFAIT ISI officials to discuss the possibility of sending questions to, and sharing information with, Syrian authorities. According to Inspector Cabana, the discussions about sharing information with Syria were initiated at this meeting. An RCMP SITREP for that day reported that “[t]hey discussed the repercussions of disclosing [the Almalki] investigation to the Syrians and its potential impact on Almalki”. 121. According to Mr. Saunders of DFAIT ISI, he and his colleague Mr. Gould expressed concerns at the meeting about the possibility of sending questions for Mr. Almalki. Mr. Saunders said that he and Mr. Gould did not have a problem with the RCMP questioning Mr. Almalki in a Syrian jail, but were quite concerned about the idea of them sending questions to the Syrians, because they had no way of knowing what kind of interrogation techniques they might employ. Mr. Saunders recalled telling the RCMP that Syria has a reputation for being fairly brutal with prisoners, that Syria would probably not interrogate Mr. Almalki the same way the RCMP would, and that he thought sending questions was a bad idea. He said that Mr. Gould agreed with his view. Mr. Gould testified at the Arar Inquiry that, while he recalled the discussion about the RCMP sharing information with the Syrians and sending questions for Mr. Almalki, he could not recall whether DFAIT stated a position about the appropriateness of sending questions. Mr. Gould also could not recall the outcome of the meeting or whether there was any agreement regarding information sharing. 122. Inspector Cabana’s recollection of the July 29 meeting differs from Mr. Saunders’. Inspector Cabana testified at the Arar Inquiry, in evidence that he confirmed to this Inquiry, that the individuals who attended the meeting did
not appear to have any major issue with the potential sharing and that everyone seemed to be in agreement that it was the thing to do. 123. The day after the July 29 meeting, Inspector Cabana instructed Staff Sergeant Callaghan to draft a list of questions to be asked of Mr. Almalki and to start preparing a “disclosure package” for the Syrian authorities. This task was delegated to a Project A-O Canada investigator who prepared a 26-page report dated July 31, 2002 containing both background information and proposed questions. The questions, which derived from the criminal investigation, addressed Mr. Almalki’s background, business dealings, charity dealings, associates, immigration matters, banking, investments and international travel. The background information was about Mr. Almalki and his family, and included information about his siblings’ occupations and recent activities, his alleged military training, his companies and the names of people who had worked in his companies, his work with various charitable organizations and his associations with people suspected of having direct connections to terrorism and al-Qaeda. In one place, the report said that Mr. Almalki was a member of a Canadian terrorist cell. The Inquiry found no evidence that the July 31, 2002 report was circulated outside of the RCMP. August 6 DFAIT memorandum 124. The RCMP’s efforts to engage the Syrians in the questioning of Mr. Almalki were addressed in an August 6, 2002 DFAIT ISI memorandum drafted by Mr. Saunders, signed by Mr. Heatherington and sent to senior DFAIT officials.18 The memorandum noted that there was a danger that the Syrians would employ “rougher interrogation techniques” than would the RCMP. When asked what he meant by the term “rougher interrogation techniques,” Mr. Saunders responded “torture”. Mr. Pardy, who received a copy of the memo, said that he understood the term “rougher interrogation” to include torture, abuse and mistreatment. September 10 meeting 125. On September 10, 2002, RCMP Chief Superintendent Couture and senior officers from Project A-O Canada met with a number of DFAIT ISI officials and Ambassador Pillarella, who attended the meeting because he happened to be on vacation in Ottawa. The meeting dealt primarily with the type of assistance DFAIT could provide the RCMP, either in sending questions for Mr. Almalki, or in arranging an interview. At this meeting, Mr. Solomon of DFAIT ISI, who 18 The memo was sent to the Associate Deputy Minister of Foreign Affairs, and copied to the Consular Affairs Bureau, DFAIT ISD, the Deputy Minister of Foreign Affairs and one Assistant Deputy Minister.
had recently completed a posting with the Human Rights and Humanitarian Law division of DFAIT, raised the possibility that sending the questions would put Mr. Almalki at risk of being tortured. He used words to the effect of: “if you are going to send questions to the Syrians, would you ask them not to torture him?” 126. Mr. Heatherington of DFAIT ISI did not recall the September 10 meeting, but he did not dispute that the meeting had taken place or what others said was discussed during the meeting. Ambassador Pillarella recalled the meeting but did not recall Mr. Solomon’s comments about the possibility of torture. According to Inspector Cabana’s notes on the meeting, Ambassador Pillarella agreed to facilitate any requests to the Syrian authorities, but suggested that the Syrian authorities would likely expect the RCMP to share information with Syria in exchange. When asked about this comment, Ambassador Pillarella said he did not know if he made the comment at this meeting, but that it is only logical that if you ask someone for information, that person will expect to receive information in return. 127. Inspector Cabana recalled there being some discussion at the meeting about the possibility of torture, but could not recall specific comments. One of the RCMP attendees noted that Inspector Cabana commented at the meeting that individuals may claim torture when it has not actually occurred. Though Inspector Cabana could not recall making this comment, he stood by it. Inspector Cabana did not recall Mr. Solomon’s comment about torture, but said that since the Ambassador and the other senior DFAIT officials in attendance did not have any objection to sending questions and were in fact offering to facilitate the RCMP’s efforts, the issue of torture did not concern him. 128. Staff Sergeant Callaghan recalled Mr. Solomon’s comment, but regarded it as off-the-wall and absurd; he thought that communicating the comment to Syria would be a slap in the face for the Syrians. Staff Sergeant Callaghan went on to say that others in the meeting did not pay any attention to the comment and just kept on dealing with the issue at hand. He also stated that, apart from this comment, no one from the RCMP, Project A-O Canada, CSIS or DFAIT had expressed a concern that sending the questions might result in Mr. Almalki being tortured. September 10 fax to Staff Sergeant Fiorido 129. After the September 10 meeting, Inspector Cabana, with the authorization of Superintendent Wayne Watson, sent a fax to Staff Sergeant Fiorido (the RCMP’s liaison officer in Rome), with a copy to Corporal Flewelling of RCMP
CID, requesting him to approach his Syrian contacts to see if they would grant the RCMP access to conduct an interview of Mr. Almalki. The fax stated that an interview by the RCMP would be in the RCMP’s best interests but that, as an alternative, the RCMP was contemplating providing the Syrian officials with questions for Mr. Almalki. Both Inspector Cabana and Chief Superintendent Couture thought that interviewing Mr. Almalki was preferable to sending questions to Syria. Inspector Cabana explained that the results of an interview could be used in court while the answers to questions posed by Syrian officials could not. Inspector Richard Reynolds of RCMP CID also suggested that a direct interview would be preferable to sending questions because the RCMP would know the conditions under which the questions were answered. 130. Although Inspector Cabana asked Staff Sergeant Fiorido to approach his Syrian contacts about the possibility of the RCMP interviewing Mr. Almalki in Syria, Staff Sergeant Fiorido understood (based on previous correspondence from the former liaison officer in Rome, Inspector Covey) that the SyMI would likely not want to speak with a police agency about this issue. Staff Sergeant Fiorido thought that it would make more sense to ask Ambassador Pillarella to facilitate the RCMP’s request. When he contacted the Ambassador on October 24 to discuss the issue, Ambassador Pillarella advised him that General Khalil did not like to deal with police agencies and there was not much chance of the RCMP gaining access to Mr. Almalki, but he offered his continued support of RCMP efforts. 131. Inspector Cabana’s September 10 fax also said that the Syrian authorities had expressed an interest in gaining access to the information that the RCMP had on Mr. Almalki. The fax proposed that the RCMP extend an invitation to Syrian investigators to come to Canada and meet with the Project A-O Canada team to “share information of common interest”. Notwithstanding the statement in the September 10 fax that the Syrian authorities had expressed an interest in information the RCMP had on Mr. Almalki, the RCMP is not aware of any interest expressed by the Syrian authorities for RCMP information regarding Mr. Almalki. The RCMP told the Inquiry that it is likely that this statement reflects advice that Inspector Cabana received from Ambassador Pillarella at the September 10 meeting. As discussed above, according to Inspector Cabana, Ambassador Pillarella advised the RCMP that it would have to give information to the Syrians in order to get direct access to Mr. Almalki or to Syrian information regarding Mr. Almalki. 132. The invitation proposed by Inspector Cabana was never extended to Syrian authorities. After a discussion with Superintendent Wayne Pilgrim (the
Officer in Charge of the National Security Investigations Branch at RCMP headquarters), Corporal Flewelling advised Inspector Cabana that he did not have the power to invite a foreign country to come to Canada to discuss an investigation— such an invitation could only be extended by the RCMP Commissioner in conjunction with DFAIT. October 10 memorandum 133. In an internal memorandum dated October 10, 2002, Mr. Livermore updated one of the Assistant Deputy Ministers of Foreign Affairs on the status of the RCMP’s initiative to send questions. He stated that both ISI and the Embassy had pointed out to the RCMP that such questioning might involve torture, but that the RCMP had nonetheless decided to proceed. October 21 discussion between Inspector Cabana and Mr. Gould 134. In late October 2002, Inspector Cabana spoke with Mr. Gould of DFAIT ISI about the possibility of sharing RCMP information with Syria. Mr. Gould called Inspector Cabana on October 21 to advise him that Ambassador Pillarella would be meeting with Syrian authorities the next day. According to Inspector Cabana’s notes and his testimony at the Arar Inquiry, Mr. Gould wanted to confirm whether the RCMP was interested in Mr. Almalki and if charges were pending. Inspector Cabana told him that the RCMP and Crown were confident that there was enough evidence to charge Mr. Almalki. (Mr. Almalki has never been charged by the RCMP.) Mr. Gould also asked if the RCMP had any messages that it wanted the Ambassador to convey, to which Inspector Cabana responded that the RCMP had intelligence and evidence in relation to both Mr. Arar and Mr. Almalki that it was prepared to share with Syrian authorities. In his notes on the conversation, Mr. Gould wrote that “[t]he RCMP has generated a great deal of information about al-Malki and they are prepared to share this information with Syrian authorities is [sic] they wish to send someone to Ottawa (this offer may already have been passed to the Syrians by the RCMP LO).” 135. Ambassador Pillarella met with General Khalil the following day (October 22, 2002). The report of this meeting suggests that the focus of the meeting was Mr. Arar, and that Mr. Almalki was not discussed. The Inquiry found no evidence to suggest that Ambassador Pillarella conveyed to General Khalil any messages on behalf of the RCMP or shared with him any information about Mr. Almalki.
October 30 memorandum and draft letter 136. On October 30, 2002, Mr. Solomon drafted a memorandum for Mr. Livermore’s signature to James Wright, a DFAIT Assistant Deputy Minister. The memorandum stated that both ISI and the Ambassador to Syria had told the RCMP that sending questions to Syria would raise a “credible risk” of torture. It went on to propose that DFAIT send a letter to Assistant Commissioner Proulx, the head of RCMP CID, setting out DFAIT’s concerns about torture, and indicating that DFAIT would not support or assist the RCMP in its effort to send questions to Syria. 137. A draft of the proposed letter was attached to the October 30 memorandum. The draft letter said that DFAIT had advised the RCMP of the risk of torture, but that RCMP representatives were nonetheless prepared to send questions for the Syrians to ask Mr. Almalki. The letter also urged the RCMP “in the strongest possible terms not to send the Syrian security services questions to be put to Al-Malki”, because it “would be contrary to Canadian domestic law, international law and foreign policy for a Canadian citizen to be questioned under duress at the behest of the Government of Canada.” 138. The letter was never sent to Assistant Commissioner Proulx. Mr. Livermore believed that the Deputy Minister of Foreign Affairs at the time, Gaëtan Lavertu, would be speaking to RCMP Commissioner Giuliano Zaccardelli about the issue, but told the Inquiry that he does not know whether the conversation took place. Former Commissioner Zaccardelli did not recall a conversation with Mr. Lavertu, and was not aware that DFAIT expressed concerns about sending the questions. When asked if he should have been made aware of these concerns, former Commissioner Zaccardelli responded that he could not comment because he did not know the circumstances and context in which the concerns were raised. Mr. Heatherington thought the matter might have been resolved by a November 3, 2002 meeting between General Khalil and Ambassador Pillarella, at which General Khalil suggested he would be willing to allow Mr. Almalki to meet with a Canadian official (obviating the need to send questions). Mr. Solomon believed that the matter was resolved by Mr. Livermore. He explained that when the draft letter got to Mr. Livermore, Mr. Livermore felt it was a big step and conveyed a fairly strong tone, and indicated to Mr. Solomon that he would check with the RCMP before sending it. Mr. Solomon recalled Mr. Livermore communicating with someone in the RCMP with the result that it was no longer necessary to send the letter.
139. The Inquiry found no evidence that the RCMP advised DFAIT that it was not going to send the questions or that DFAIT specifically confirmed with the RCMP that it was not going to do so. Questions sent Decision to send the questions 140. By December 11, 2002, Project A-O Canada had decided to send questions to Syria. Staff Sergeant Fiorido told Inspector Cabana that, based on a discussion with Ambassador Pillarella, Staff Sergeant Fiorido thought that the best approach would be to send questions, rather than attempting to obtain an interview. He also suggested to Inspector Cabana that, if the answers provided by Mr. Almalki were not conclusive, the Syrians might consider granting an interview. 141. Inspector Cabana recognized that a decision to send questions for Mr. Almalki could put Mr. Almalki at risk of being tortured. However, he stated that based on a balancing of all the issues, and following the RCMP’s consultations with DFAIT and Ambassador Pillarella, the RCMP decided to send them. Inspector Cabana believed that the importance of gaining access to Mr. Almalki in order to get information about the threat level in Canada warranted sending questions. 142. Though the RCMP apparently considered Mr. Elmaati’s torture allegation in coming to the decision to send questions, the impact of the allegation was, according to Staff Sergeant Callaghan, minimal. Staff Sergeant Callaghan explained that the RCMP had doubts about the credibility of Mr. Elmaati’s allegation, and that these doubts were, in effect, reinforced by DFAIT’s offer to facilitate the sending of questions for Mr. Almalki. 143. Inspector Cabana emphasized that the decision to send questions for Mr. Almalki was a troubling one, but one that he did not make on his own. He said that Superintendent Clement and Chief Superintendent Couture, his superiors in Criminal Operations, had, earlier in the year instructed him to gain access to Mr. Almalki, whether by sending questions or interviewing him, and then were directly involved in the process of sending questions. Furthermore, he stated that the decision to send questions flowed from a lengthy consultation process that took place with different players, including DFAIT, the RCMP liaison officers, CSIS and the Department of Justice. Apart from the limited involvement referred to below in paragraph 157, the Inquiry found no evidence
that CSIS was involved in the process of formulating or sending the questions for Mr. Almalki. 144. The decision to send questions apparently did not involve Assistant RCMP Commissioner Proulx. He was under the impression that the questions for Mr. Almalki were not going to be sent to Syria, and was surprised when he learned otherwise. At the Arar Inquiry, Assistant Commissioner Proulx was asked if sending the questions was appropriate. He replied that, if DFAIT had advised that the person would be tortured and recommended that the RCMP not send questions, then the RCMP should not have done it. However, he said, the Ambassador in the country had the final authority on the matter. 145. Former Commissioner Zaccardelli does not recall when he first learned that the RCMP was going to send questions to be posed to Mr. Almalki—it might have been after the questions were sent. He stated that sending the questions did not raise any concerns in his mind because he knew, from briefings by Deputy Commissioner Garry Loeppky, that the RCMP was having extensive discussions with various partners, including DFAIT, and that the RCMP was receiving the best advice and guidance possible in dealing with what he described as “the most serious threat to Canada.” By “the most serious threat to Canada,” former Commissioner Zaccardelli meant allegations that Canadian residents were involved in terrorist activities that posed an “imminent threat” to Canada. These allegations were based on information that had been communicated to the RCMP in late September and early October 2001, by U.S. agencies and CSIS. 146. When asked about CID’s involvement in the decision to send questions for Mr. Almalki, Superintendent Pilgrim said that the decision to send the questions was an operational matter in which CID would not have been extensively engaged. He said that, while CID might have been involved in the discussions and in facilitating the sending of the questions to Syria, the final decision would have been left with the operational unit or the division. Superintendent Pilgrim said that, if CID had any serious concerns about sending the questions, it would have raised them. However, Superintendent Pilgrim could not recall if CID voiced any serious concerns, and the Inquiry has not seen any information to suggest that it did. 147. Superintendent Clement suggested that sending questions for Mr. Almalki might have been beneficial to his treatment. He thought that showing interest in Mr. Almalki would put his case in an international spotlight, which would make a big difference. As an example, he raised the case of detainees in Hong Kong; he believed that when the RCMP expressed interest in interviewing
the detainees, they received better treatment. Superintendent Clement acknowledged, however, that he did not have knowledge about the situation in Syria. Superintendent Pilgrim made similar comments with respect to Mr. Elmaati. He said that pursuing an interview of Mr. Elmaati might have resulted in him being treated in a better manner. Content of the questions 148. The final draft of the questions for Mr. Almalki was not nearly as extensive as those set out in the July 31, 2002 report that had been prepared by a Project A-O Canada investigator (discussed above at paragraph 123). The final list was three pages long and contained 23 questions, derived from the criminal investigation, which addressed only some of the topics set out in the July 31 report, including Mr. Almalki’s alleged military training, his former employer, the Canadian Global Relief Foundation (a charity), the purpose of some of his business shipments, and his relationship with Mr. Elmaati, Mr. Arar, Mr. Khadr and others. The list also included questions that asked whether Mr. Almalki was a member of a terrorist cell in Canada, whether he was acting as a procurement officer for any terrorist group, and whether he was aware of any terrorist threats in Canada. The final list of questions did not contain any information about Mr. Almalki and his family members or state that he was a member of a Canadian terrorist cell. 149. Staff Sergeant Callaghan, who had instructed the Project A-O Canada investigator to prepare the draft list of questions in July 2002, was asked why the RCMP stripped down the investigator’s initial draft before sending it to the Syrian authorities. Staff Sergeant Callaghan stated that Inspector Cabana and others felt that the initial draft contained too much information and that it was not advisable to disclose the entire investigation to a foreign body (the Syrian authorities) with which the RCMP had no appropriate liaison relationship or past experience. He also said that Inspector Cabana and others made the decision to pare down the questions and try to establish some level of cooperation with the Syrian authorities in order to see what the RCMP could get back from them. Inspector Cabana said that the RCMP’s goal in sending the questions was not to get answers to those questions but to offer something to Syrian officials in the hope that they would ultimately grant the RCMP access to Mr. Almalki. 150. Though the questions were stripped down from the initial draft, Staff Sergeant Callaghan thought that that they were still pretty strong in themselves. He stated that someone reading the questions might think that, if Mr. Almalki was possibly associated with the people listed in the questions, “maybe the
Canadians have something here.” Inspector Cabana, on the other hand, stated that the questions were, for the most part, innocuous types of questions to which the RCMP knew, or reasonably assumed it knew, the answers. Questions translated 151. On December 11, on the recommendation of Staff Sergeant Fiorido, Inspector Cabana asked Staff Sergeant Callaghan to have the proposed questions translated into Arabic. The next day, Inspector Cabana noted that the questions were being translated, that DFAIT was aware of the translation, and that the questions would be sent to the Ambassador. However, he had no notes as to who at DFAIT he had spoken to in this regard, and the Inquiry found no other information concerning this discussion. Questions sent to Staff Sergeant Fiorido 152. Mr. Fiorido asked that the questions for Mr. Almalki be sent to him ahead of time so he could ensure that the contents were appropriate. On December 20, 2002, he received a fax from Inspector Cabana and Staff Sergeant Callaghan (and approved by Superintendent Wayne Watson), to which was attached a draft list of questions and a handwritten Arabic translation.19 Each list of questions was three pages long. The fax, which had been approved by Superintendent Pilgrim, stated: You can advise the Syrian authorities that this is only a portion of the information we would like discussed with Almalki…we would like to treat this offering of questions as an opportunity to establish cooperation between the Syrians and the RCMP.20 153. The list of questions sent to Staff Sergeant Fiorido did not include a caveat. Mr. Fiorido explained that he did not think there should have been a caveat given the nature of the inquiries and the secrecy under which agencies in the Middle East operate. He said that information passed by a police agency is always treated as being subject to the third-party rule, and it was only when you got burned that you wanted to start including the caveat. 154. In his interview, Staff Sergeant Fiorido was asked whether, in reviewing the questions and arranging for them to be delivered to the Syrian authorities, he had any concerns about the style of interrogation that the Syrian authorities might employ. He said he thought that the Syrians would be concerned 19 The questions were sent to Staff Sergeant Fiorido again on January 7, 2003 as the copy sent on December 20 was illegible in part. 20 Corporal Flewelling of RCMP CID also received a copy of this fax, but he could not recall whether he objected to the content of the fax.
about the way they are perceived in the eyes of the big democratic powers and therefore carry out the interrogation of Mr. Almalki in a professional manner. He said that it was his understanding that Canadian citizens detained in Syria were less likely to be mistreated than individuals of other nationalities, though he acknowledged that a dual Syrian-Canadian citizen would likely not be treated as well as a person with Canadian citizenship only. 155. Staff Sergeant Fiorido did not make any independent inquiries—of DFAIT for example—regarding how Mr. Almalki might be interrogated; he stated that this issue was not on his radar screen and that he assumed a level of professionalism and a way of operating that would be in keeping with the expectations of a truly democratic society. He also stated that, given the other demands on his time, unless he received direct information that mistreatment was occurring, he would not investigate the possibility of abuse. Cover letter to General Khalil 156. Staff Sergeant Fiorido prepared a draft cover letter addressed to General Khalil to send with the list of questions for Mr. Almalki. He sent a copy of this draft to Inspector Cabana on January 8, 2003; he wanted the Inspector to review the wording to ensure it was accurate and consistent with the RCMP investigator’s operational goals. He also sent a copy to an official at CSIS, as CSIS was mentioned in the letter. Staff Sergeant Fiorido did not send a copy of the draft letter to RCMP headquarters or his own branch, the International Operations Branch; nor did he send a copy to DFAIT.21 157. Several RCMP documents suggest that a CSIS official was consulted about the draft cover letter, and that he told Staff Sergeant Fiorido that he was comfortable with the contents of the letter and willing to assist in any way he could. This official vaguely recalled being consulted about the cover letter. However, he said that he always believed that the questions prepared by the RCMP to be delivered to the SyMI were destined for Mr. Arar, and not Mr. Almalki. His understanding was based on two factors. First, the name “Almalki” did not appear in any of the correspondence or arise in any of the discussions between Staff Sergeant Fiorido and the CSIS official, as all of their communications were open (i.e. not secure) communications. This includes the actual draft cover letter, which did not refer to Mr. Almalki by name, but referred to him as “this person”. Second, at the time, the Arar case was the most topical, and the CSIS official recalls that Arar’s was the name on everyone’s mind. 21 According to Mr. Fiorido, this type of material is rarely shared with the International Operations Branch in Ottawa.
158. The final draft of the cover letter, dated January 10, 2003, and approved by Inspector Cabana, said that depending on the quality and accuracy of Mr. Almalki’s answers to the questions, the RCMP might deliver to the SyMI a second series of questions. The letter also proposed that Staff Sergeant Fiorido and a CSIS official meet with officials from the SyMI to further discuss the matter. Finally, the letter advised that the RCMP was “in possession of large volumes of highly sensitive documents and information, seized during investigative efforts or obtained from confidential informants associated to terrorist cells operating in Canada” and offered to share this information with the SyMI. Delivery of questions to Ambassador Pillarella 159. On January 14, 2003, Ambassador Pillarella met with Staff Sergeant Fiorido and received a sealed envelope containing the RCMP’s questions for Mr. Almalki. Although he did not open the envelope, Ambassador Pillarella was aware of its contents. The Ambassador recalled being told by Staff Sergeant Fiorido that the instructions to deliver the questions had come from Ottawa. Therefore, Ambassador Pillarella assumed that the appropriate consultations had taken place regarding any possible issues that DFAIT might have had with submitting these questions. Ambassador Pillarella understood that the questions were being passed on to the Syrians in the context of what he considered to be the extraordinary cooperation shown by the Syrians in the Arar case. 160. Staff Sergeant Fiorido, on the other hand, testified at the Arar Inquiry that he did not make any reference to approval from Ottawa when he gave the questions to Ambassador Pillarella. However, he recalled telling the Ambassador that the questions were not his, that he had received them directly from investigators and that he was just facilitating the exchange. 161. While Ambassador Pillarella was aware of Mr. Elmaati’s torture allegation at the time he passed on the questions to the Syrians, he testified that he was unaware that Mr. Solomon had, in an October 30, 2002 draft memorandum, expressed a concern that there was a “credible risk” of torture if the questions were submitted. 162. Ambassador Pillarella arranged for Consul Léo Martel to deliver the envelope to Colonel Saleh to be passed on to General Khalil. Mr. Martel delivered the envelope to Colonel Saleh, as instructed, on January 15, 2003. When asked why he would ask a consular officer to provide these questions to the Syrians for Mr. Almalki, Ambassador Pillarella stated that it was merely a matter of coincidence that Mr. Martel was meeting Colonel Saleh that day. Mr. Martel, however, testified before the Arar Inquiry that he made a special trip to see
Colonel Saleh in order to deliver the envelope at the request of Ambassador Pillarella. Mr. Martel also testified that he was not aware, and was not advised by the Ambassador, of the contents of the envelope. In fact, Mr. Martel thought that the envelope might contain pleas from Ambassador Pillarella on behalf of Mr. Arar. Mr. Almalki’s interrogation in mid-January 2002 163. As discussed at paragraphs 51 to 52 of chapter 8, Mr. Almalki stated that he was interrogated in Syria on January 16, 2003 on the basis of what he observed to be a two-page typed list of questions and a half-inch thick report. According to Mr. Almalki, the interrogator told him that the questions were provided by Canada, and that Mr. Almalki had to answer them so that the interrogators could send the answers to Canada. The questions he was asked on January 16 included questions about whether he was trained and what he was trained on. He was also asked questions about the names of various individuals, most of which Mr. Almalki did not recognize. No reply from the SyMI 164. The RCMP does not know whether its questions were ever put to Mr. Almalki. Neither DFAIT nor the RCMP received any response from the SyMI to the questions or to the RCMP’s offer to share investigative material. Ambassador Pillarella attributed this to a number of factors, including the deterioration in relations between Canadian officials and the SyMI, possibly as a result of pressures to secure the release of Mr. Arar. He believed that the Syrians were “really annoyed with Canada because [Canada was] causing problems for them.” 165. Ambassador Pillarella also attributed the SyMI’s failure to respond to its aversion to working with a police organization. Ambassador Pillarella said that when he met with General Khalil in the middle of August 2003 and raised the issue of Mr. Almalki, General Khalil told him that SyMI officials had read the questions and determined that all the answers to the questions had been communicated during the briefing given to CSIS on November 24, 2002, and that he did not wish to interact with a police force. 166. In mid-August 2003, following discussions and correspondence with Ambassador Pillarella, Staff Sergeant Fiorido sent a fax message to Project A‑O Canada indicating that there had been a deterioration of relations between Canadian officials and the SyMI, that the list of questions for Mr. Almalki
would not be responded to, and that the SyMI did not wish to deal with any police agencies. No further questions or sharing of information 167. In his interview, Staff Sergeant Callaghan stated that the RCMP only provided Syrian authorities with the list of questions and the cover letter to General Khalil; it did not give the Syrian authorities any documents or summaries of information. Staff Sergeant Callaghan also stated that the RCMP did not send the Syrian authorities a second series of questions, as had been suggested might occur in the cover letter. Possibility of mixed messages 168. Brian Davis, who replaced Ambassador Pillarella as the Canadian Ambassador to Syria on September 13, 2003, and was involved in DFAIT’s efforts to obtain consular access to Mr. Almalki, was asked about the possibility that the RCMP’s questions, combined with DFAIT’s efforts to gain consular access to Mr. Almalki, sent mixed messages to Syrian officials. He said that while he was not aware at the time that the RCMP had sent questions to Syria, none of the Syrian officials he spoke to expressed any confusion about what he was trying to achieve. He said that his Syrian counterparts never mentioned that there was information or questions coming in from other sources, or how they were dealing with CSIS on cases like Mr. Almalki’s. Ambassador Davis also said that Mr. Haddad, with whom he had regular contact on the Almalki case, was the most likely of his Syrian contacts to raise issues unrelated to Canada’s diplomatic efforts, but that he did not do so. Consular actions following Mr. Arar’s press conference 169. As noted above, on November 4, 2003, Mr. Arar gave a press conference at which he described meeting Mr. Almalki at Sednaya prison. Mr. Arar stated that Mr. Almalki told him that he had been severely tortured while in detention. Minister Graham’s meeting with Ambassador Arnous 170. After Mr. Arar’s press conference, on November 4, 2003, Minister Graham called Syrian Ambassador Arnous in for a brief meeting to discuss both
Mr. Arar and Mr. Almalki.22 At their meeting, Mr. Graham expressed a concern to Ambassador Arnous that Syria act appropriately towards Mr. Almalki and said that they (Canada and Syria) would have to work together and openly for a positive outcome. Following the meeting, Minister Graham’s office issued a press release calling on the Syrian government to investigate Mr. Arar’s torture allegation, as well as the detention of all other Canadians being held in Syria. November 6 meeting with Mr. Almalki’s family 171. On November 6, 2003, DFAIT officials including Dave Dyet (then the Director of the Consular Case Management Division of the Consular Affairs Bureau) and Ms. Pastyr‑Lupul met with several of Mr. Almalki’s family members. According to a transcript of the meeting prepared by DFAIT, the family expressed concern about the possibility that Mr. Almalki was being tortured, and asked that the Canadian government send a strong statement to the Syrian government requesting that Mr. Almalki be released. The DFAIT officials advised the family that Minister Graham had contacted the Syrian Ambassador and requested consular access to Mr. Almalki. They also said that DFAIT could not force the Syrians to release him. 172. The transcript of the November 6 meeting also indicates that DFAIT officials asked the family members for some information about how and why Mr. Almalki ended up in Syria. According to the transcript, Safa Almalki advised that, to the best of his knowledge, Mr. Almalki had travelled to Syria to visit his parents, who were in Syria at that time, and to conduct some business. The transcript states that Safa advised the DFAIT officials that, in advance of Mr. Almalki’s trip to Syria, his parents had checked his Syrian “intelligence file” to determine if it could be dangerous for him to travel to Syria, and found that there was “nothing at that time.”23 The transcript also indicates that DFAIT officials asked why the family had not approached the Consular Affairs Bureau sooner, and Safa explained that they did not want to endanger family members in Syria or 22 In his interview, former Minister of Foreign Affairs William Graham indicated that he was not made aware of Mr. Almalki’s case until Mr. Arar’s release. While an “Action Memorandum for the Minister of Foreign Affairs” dated April 7, 2003, referred to Mr. Almalki’s case in an annex and stated that Syrian authorities refused to acknowledge that he was being held, former Minister Graham was not fully briefed on the details of Mr. Almalki’s case until he personally intervened in November 2003. 23 According to the transcript of the November 6 meeting, Safa Almalki explained Syrian “intelligence files” as follows: the Syrian government keeps an intelligence file on every Syrian. Syrians in Canada can inquire about their intelligence files at the Syrian Embassy in Canada. Often Syrian-Canadians will check their intelligence file before deciding whether to travel back to Syria. The Syrian Embassy may advise a person not to travel back to Syria or to travel at his/her own risk. If the Syrian government “really really wanted someone” the Syrian Embassy might not instruct that person not to travel; however, generally the system is intended to encourage people to travel to Syria and not to trap them into travelling there.
make things worse. According to the transcript, Safa also explained that, until this time, the family had favoured quiet diplomacy over going public with Mr. Almalki’s story, because they felt it would be more effective and because they did not want to take any action that could adversely affect Mr. Almalki; he noted that it was the family’s choice to use quiet diplomacy, and that it had not been pressured by DFAIT to do so. DFAIT’s efforts to meet with Syrian officials 173. As a result of Minister Graham’s meeting with Ambassador Arnous, the Canadian Embassy in Syria was asked to follow up with the Syrian MFA, ideally with Vice-Minister Mouallem, in order to press for access to Mr. Almalki. Between November 6 and November 13, Embassy staff made at least five unsuccessful attempts24 to set up a meeting with Vice-Minister Mouallem. They speculated that the Vice-Minister’s office was avoiding the meeting because it knew what the subject matter was. 174. On November 11, 2003, Ambassador Davis requested that the Embassy draft a second diplomatic note asking Syria to investigate the allegations of torture, grant consular access to Mr. Almalki, and allow Mr. Almalki to have a legal defence at his trial.25 This note was sent to the Syrian MFA on November 30, 2003. When asked whether he felt it was appropriate for DFAIT to have left a 15-month gap between diplomatic notes in Mr. Almalki’s case, Ambassador Davis explained that when dealing with military security, diplomatic notes are not very useful and that it was the contacts they had and the phone calls they made that would move things ahead. 175. On November 18, 2003, in an email message to his consular officers, Ambassador Davis emphasized the importance of documenting every effort to set up a meeting with Vice-Minister Mouallem. Ms. Pastyr‑Lupul made a similar comment in a CAMANT note, urging the consular officers to document each step taken in the Almalki case. She explained that a record of the actions taken would be necessary to explain the consular efforts to Mr. Almalki’s family and to the Minister. 176. On November 19, 2003, the Embassy was successful in setting up a meeting between Ambassador Davis and the Deputy Minister of Foreign Affairs for November 30. However, on November 30, when the Ambassador arrived at 24 Phone calls were placed on November 6, 9, 11, 12 and 13. 25 According to a DFAIT document, Mr. Almalki advised DFAIT in May 2004 that he had been charged under article 278 of the Syrian Punishment Act of “Doing actions that the Syrian Government did not allow…These actions expose/exploit Syria to the danger of being retaliated against”.
the Deputy Minister’s office, no one in the office seemed to have any knowledge of the meeting, and the Ambassador was told that the Deputy Minister was out of town. In a diplomatic note to the Deputy Minister of Foreign Affairs dated December 1, 2003, Ambassador Davis protested the cancellation of the November 30 meeting and requested that it be rescheduled as soon as possible. 177. At various points in late 2003, Ambassador Davis raised Mr. Almalki’s case with several Syrian government officials, including the Minister of Expatriates, the Deputy Prime Minister, and the Speaker of the House. Senator De Bané’s meeting with Syrian officials 178. At the request of DFAIT, Senator Pierre De Bané agreed to raise the case of Mr. Almalki with Syrian officials during a previously scheduled trip to Syria and Lebanon as chair of the Canadian Parliamentary Delegation. Prior to the trip, DFAIT officials briefed the Senator on Mr. Almalki’s case, and advised that DFAIT wanted Syria to permit consular access as soon as possible, to provide Mr. Almalki with immediate medical attention and an independent medical exam and to respond to Mr. Arar’s torture allegations. 179. On December 4, 2003, Senator De Bané and Ambassador Davis met with former Deputy Minister Haddad of the Syrian MFA and President Al-Assad to discuss the cases of Mr. Almalki and another Canadian citizen detained in Syria. In response to Senator De Bané’s request that the Canadians be released, concerns were raised about Canada’s failure to defend Syria’s actions in its recent release of Mr. Arar. 180. Following the meeting, Senator De Bané raised Mr. Almalki’s case with the Syrian Prime Minister, who promised to do the best he could. Also following the meeting, Ambassador Davis spoke again with Mr. Haddad. It was noted that there might be reasons that the Syrians would not be able to release Mr. Almalki, and Mr. Almalki’s alleged membership in al-Qaeda was cited as one example. The Ambassador responded that, even if release was not possible, the Embassy should at least be given access and Mr. Almalki should be given a fair trial. It was agreed that access would be justifiable. Ambassador Davis also asked the Minister what the next steps should be, and whether the Embassy should be sending diplomatic notes or doing something else. It was indicated that this was not necessary, that the matter was being looked after, and that things were going to happen. Ambassador Davis stated that he felt encouraged by these comments.
181. In his report on the meeting and subsequent discussions of December 4, 2003, which was sent to Konrad Sigurdson and others in DFAIT, Ambassador Davis suggested that DFAIT consider taking steps to manage public reaction to the case of Mr. Almalki and others so as to avoid undermining DFAIT’s efforts to secure Syria’s cooperation. The concern was that an unbalanced portrayal of Mr. Almalki’s case in the media, including a persistent focus on Syria’s human rights reputation, might further complicate cooperation in the resolution of this case and future cases. With respect to information about the Senator’s trip to Syria and meetings with Syrian officials, Ambassador Davis asked that, in accordance with the Senator’s express wishes, every effort be made to minimize disclosure to the families, the public and the press. The concern was that such disclosure might jeopardize the possible resolution of Mr. Almalki’s case. 182. The results of Senator De Bané’s trip and the comments by Syrian officials were communicated to Canada’s Minister of Foreign Affairs in an Information Memorandum dated December 10, 2003. The memorandum concluded that “…a low-key, incremental approach which avoids controversy is the best way to serve the interests of the two detainees as it will help to encourage continuing Syrian cooperation.” 183. As a follow-up to Senator De Bané’s trip, Ambassador Davis kept in regular contact with Mr. Haddad about Mr. Almalki’s case. RCMP letter to Mr. Edelson 184. In November 2003, Michael Edelson, Mr. Almalki’s then-lawyer, sought the RCMP’s assistance in obtaining Mr. Almalki’s release from Syrian detention. At a meeting between Mr. Edelson, Safa and Nazih Almalki (Mr. Almalki’s brothers) and Project A-O Canada managers on November 7, Mr. Edelson asked the RCMP to draft a letter confirming that: • Mr. Almalki had no criminal record in Canada; • Mr. Almalki was not, as of the date of the letter, the subject of an arrest warrant anywhere in Canada; and • there was no legal impediment to Mr. Almalki’s return to Canada given his status as a Canadian citizen. Mr. Edelson also sought clarification as to whether or not the RCMP provided Mr. Almalki’s business records to the Syrian authorities, as he had reason to believe that some business records were put to Mr. Almalki during interviews in Syria.
185. In response to Mr. Edelson’s request, and after consulting with the RCMP’s legal counsel, Assistant Commissioner and Commanding Officer “A” Division Ghyslaine Clément sent a letter to Mr. Edelson on December 11, 2003. The letter confirmed that Mr. Almalki did not have a criminal record in Canada, that there was no warrant for his arrest, and that the RCMP did not request that Mr. Almalki be detained. With respect to Mr. Almalki’s citizenship and any possible impediments to his return, the letter recommended that Mr. Edelson consult with DFAIT and Citizenship and Immigration Canada. The letter did not comment on the issue of Mr. Almalki’s business records. However, Project A‑O Canada managers were confident that, while a series of questions was sent to the Syrian authorities to be posed to Mr. Almalki, no supporting documentation was provided. The Inquiry found no evidence that the RCMP (or CSIS) provided any of Mr. Almalki’s business records to Syrian authorities. As discussed above, the Supertext database shared with U.S. agencies in April 2002 contained records from Mr. Almalki’s businesses. As well, Mr. Almalki’s laptop was seized and searched by Syrian authorities while he was detained in Syria. Mr. Almalki’s possible release Ambassador Davis’ conversation with Mr. Haddad 186. On January 5, 2004, Ambassador Davis received a call from Mr. Haddad, with whom he had been in regular contact since Senator De Bané’s trip, advising that Mr. Almalki had been acquitted by a non-military court on December 31, 2003, and would be set free shortly. Ambassador Davis learned that since Syrian authorities had been criticized domestically for handing over a Syrian citizen (Mr. Arar) to a foreign government (Canada), they had decided to set Mr. Almalki free in Syria and leave it to him to decide where to go. In a confidential note to the Consular Affairs Bureau, Ambassador Davis indicated that while Mr. Haddad had been reliable and effective in the release of Mr. Arar, he was hesitant to become too excited until he received evidence of Mr. Almalki’s release. Ambassador Davis stated that he was in regular contact with Mr. Haddad after receiving this information in order to find out why Mr. Almalki had not yet been released. Despite his efforts, Ambassador Davis was never told why Mr. Almalki was not released until mid-March 2004. CSIS communications regarding Mr. Almalki’s release 187. In early January 2004, the Service communicated with the SyMI regarding Mr. Almalki. The Service wanted to know whether the SyMI was planning to release Mr. Almalki and whether the SyMI would permit CSIS to interview
Mr. Almalki prior to his release. In making these inquiries, the Service did not want to comment on Mr. Almalki’s detention or put forth its position on the situation. The Service, aware that the Syrians were upset about allegations that they had tortured Mr. Arar, also wanted the SyMI to respond to these allegations and to advise if it had made any extraordinary efforts to ensure the fair treatment of Canadian citizens detained in Syria. 188. The Service received information that Syrian authorities were astonished by the hostile media campaign launched by those who were demanding the release of Mr. Arar and that they hoped other cases did not cause the same media uproar. With respect to the treatment of detained Canadians, the Service received information that the prisoners were detained under “normal” prison conditions and that health care was provided to them. The Service also received information about the basis of the charges against Mr. Almalki, and that he would be tried and released shortly. 189. A senior CSIS official was asked how he assessed the response from the Syrians. He said that CSIS was not able to draw any conclusions from it, in part because the Syrians did not provide the Service with any additional background information or supporting documents. The Service did not, to this official’s recollection, follow up with the Syrians to obtain further elaboration or information, and the Inquiry found no evidence that it did. Possible interview of Mr. Almalki in January 2004 Consultation with DFAIT 190. As part of its efforts to gain interview access, CSIS consulted with Mr. Heatherington and Mr. James Wright about how the interview should be conducted. Mr. Wright insisted that the interview be on a voluntary basis, that Mr. Almalki be informed of his right to consular assistance, that the Ambassador be briefed on the interview, and that the interviewer evaluate Mr. Almalki’s physical and mental condition, identify any possible signs of torture, and report this evaluation to DFAIT. Mr. Wright also emphasized that Mr. Almalki’s release was imminent, and asked that CSIS make clear to the SyMI that the interview should not affect his release. 191. Mr. Wright was asked whether (assuming that the Service agreed to these conditions) he was comfortable with the Service going ahead with an interview. Mr. Wright cited four factors that gave him some comfort about the interview. First, the interview was going to be conducted by a Canadian, not a Syrian. Second, Mr. Wright’s conditions (to which the Service ultimately
agreed) ensured that Mr. Almalki would be reminded of his rights and of the standing offer of assistance from the Canadian Embassy. Third, DFAIT believed at that time that Mr. Almalki’s release was imminent. Fourth, DFAIT had not enjoyed any consular access to Mr. Almalki and though, in a perfect world, a consular officer would be the first Canadian official to speak to Mr. Almalki, a Service interview was better than no access at all. 192. Mr. Heatherington was asked why DFAIT would support the Service’s efforts to obtain interview access to Mr. Almalki, even though it did not support the RCMP’s efforts to send questions to Syria. Mr. Heatherington explained that the critical thing was that DFAIT was supportive of face-to-face meetings between CSIS and the RCMP and Canadian citizens, but was very uncomfortable with questions being sent to third parties to be asked of detained Canadians. Purpose of the interview 193. The proposed interview was to serve several purposes. Among them, the Service hoped to gain insight into potential threats to the security of Canada. At DFAIT’s request, the interview was also to be an opportunity for the Service to evaluate Mr. Almalki’s physical and mental condition, identify any possible signs of torture, and report this evaluation to DFAIT. 194. Though one of the purposes of the proposed interview was to evaluate Mr. Almalki’s condition, the proposed interviewer, a CSIS official, had not received any training regarding the physical or mental signs of torture. The official stated, however, that he would have looked for visual indications of mistreatment, such as a haggard appearance, bruises and welts. The official also stated that, had the SyMI granted the Service access to Mr. Almalki, CSIS headquarters would probably have provided him with additional information and instructions regarding the conduct of the interview. Possibility that the interview would affect Mr. Almalki’s release 195. Since the Service and DFAIT believed that Mr. Almalki might be released imminently, they wanted to ensure that CSIS’ request for an interview did not affect the Syrian authorities’ decision regarding Mr. Almalki’s release. One senior CSIS official said that CSIS did not want to give the Syrians the impression that CSIS wanted the Syrian authorities to keep Mr. Almalki. He explained that this concern was motivated by the Arar case, which had been very problematic for the Service and which the Service did not want to see repeated. 196. When questioned by the Inquiry, the official who was to interview Mr. Almalki said that he had no information to suggest that the timing of
Mr. Almalki’s release was influenced by the Service’s request to interview him. Since Syria did not participate in the Inquiry, the Inquiry did not receive any information regarding whether or not CSIS’ request for an interview influenced the timing of Mr. Almalki’s release. Interview never took place 197. Ultimately, the Service’s efforts to secure interview access to Mr. Almalki were unsuccessful. The SyMI never refused the Service’s request for an interview, but Mr. Almalki was released before any interview could take place. Plans for Daniel McTeague’s visit to Syria 198. In mid- to late January 2004, during a DFAIT inter-departmental meeting including the geopolitical offices, the Consular Affairs Bureau and the Minister’s office, Daniel McTeague, then the Parliamentary Secretary to the Minister of Foreign Affairs with a special emphasis on Canadians abroad, expressed an interest in travelling to Syria.26 He wanted to engage the Syrians on consular issues in general and discuss sensitive cases involving dual nationals. 199. During the latter part of January 2004, there were many discussions within DFAIT regarding the possibility of Mr. McTeague travelling to Syria. On January 21, 2004, Ambassador Davis, in a message regarding the proposed visit, wrote that while the Embassy would be pleased to receive a visit from Mr. McTeague, he believed it would be far more effective if he visited after the release of Mr. Almalki and another Canadian who was detained in Syria. He explained that because these cases fell under the authority of the Syrian security forces, they were not amenable to normal diplomatic pressures. He also said that because the Syrians considered Mr. Almalki and the other detained Canadian to be Syrian citizens only, the best way to deal with the cases was through Syrian “back channels.” Furthermore, Ambassador Davis wrote that, given Syria’s “displeasure about the aftermath of the Arar case,” a visit by Mr. McTeague might be confrontational and prove unproductive.27 In addition to the Ambassador’s concerns about the proposed visit, then Deputy Prime Minister Anne McLellan was apparently anxious that visits to Syria and similar statements/actions by Mr. McTeague not undermine Canada’s security relationship with key allies. 26 The position of Parliamentary Secretary with a special emphasis on Canadians abroad was created in late 2003 because, according to Mr. McTeague, consular cases were becoming a very important matter of public policy for Canadians. Mr. McTeague was the first appointee to the position. He was appointed in December 2003 by then Prime Minister Paul Martin. 27 Syrian officials were apparently displeased at what they perceived to be Canada’s failure to publicly acknowledge Syria’s release of Mr. Arar
200. While Mr. McTeague was apparently aware of these concerns, his “gut instinct” was to make the attempt. Mr. McTeague emphasized that he had a mandate from and reported directly to then Prime Minister Paul Martin, who had told him to do what he thought was the right thing. With respect to apparent concerns about Canada’s security relationship with key allies, Mr. McTeague said that he was not an expert in security, but could not see how his visiting Syria would pose a problem. He said that his mission was to improve damaged relations between Canada and Syria. 201. At the end of February 2004, in an email to Mr. Robert Wright (then the National Security Advisor to the Prime Minister), Mr. James Wright noted that, despite recommendations to the contrary, Mr. McTeague was “as determined as ever to travel to Syria” and had asked that DFAIT send a diplomatic note to the Syrian government proposing that he visit in March. 202. In the middle of March 2004, after some correspondence and discussions between the Embassy and the Syrian MFA, Ambassador Davis received a call from the office of Vice-Minister Mouallem indicating that he was now prepared to meet with Mr. McTeague. As a result, a meeting between Mr. McTeague, Vice-Minister Mouallem and Ambassador Davis was arranged for March 22, 2004. The substance of this meeting is discussed below, in paragraph 210. Mr. Almalki’s release from detention28 Pre-release meetings between Canadian and Syrian officials 203. On January 29, 2004, Ambassador Davis met with Vice-Minister Mouallem and raised the case of Mr. Almalki, drawing attention to Canada’s concerns about Syria’s treatment of Mr. Almalki’s case. Ambassador Davis believed that Vice‑Minister Mouallem might not have been aware of the Almalki case. Ambassador Davis left the meeting with the impression that Syria was concerned about the negative impact of the Arar case and unhappy about the manner in which Canada had responded to the release of Mr. Arar. 204. On February 5, 2004, Ambassador Davis and DFAIT’s Special Coordinator for the Middle East Peace Process, who was visiting Syria at the time, raised Mr. Almalki’s case with Minister Sharaa and Vice-Minister Mouallem. The DFAIT officials were again left with the impression that their Syrian counterparts were 28 This section of this chapter, and the sections that follow it, contain a discussion of events that occurred after Mr. Almalki’s release. The Terms of Reference do not require any examination of actions of Canadian officials in this post-release period, and no findings have been made in respect of them. A discussion of the post-release period has been included to provide context and for the sake of completeness.
not aware of the case. DFAIT took this as evidence of the limited involvement of the Syrian MFA in security cases of this type. 205. Ambassador Davis met with Vice-Minister Mouallem again on March 10, 2004. At that meeting, Ambassador Davis raised Mr. Arar’s allegation that Mr. Almalki had been tortured while in Syrian custody, urged the Syrians to investigate the allegation and encouraged Vice-Minister Mouallem to release Mr. Almalki. Vice-Minister Mouallem replied that lengthy detention was sometimes necessary, but indicated that one of the Canadian detainees (Mr. Almalki or the other Canadian detainee) could soon be released. Finally, Vice-Minister Mouallem promised to do his best to facilitate consular access to Mr. Almalki. Mr. Almalki released 206. Mr. Almalki was released from custody on March 9, 2004 but was not allowed to leave Syria at that time. He was required to report to the Syrian authorities and a large bond was posted to secure his release and to make sure he remained in Syria for a court appearance (possibly a trial) scheduled for June 6, 2004. Mr. Martel described Mr. Almalki’s status in Syria as similar to being out on bail. 207. DFAIT did not learn of his release until March 18, 2004, when Mr. Almalki visited the Canadian Embassy in Damascus to get assistance renewing his passport, which had expired while he was in detention. Mr. Almalki met with Mr. Martel that day, and Mr. Martel provided him with a passport application. The two men discussed the conditions on which Mr. Almalki had been released and arranged a future meeting. They agreed that future visits to the Embassy would have to be under the guise of passport renewal, because Mr. Almalki had been ordered by Syrian officials not to visit or call the Embassy. According to Mr. Martel’s report of the meeting, he asked Mr. Almalki about the reasons for his arrest, and Mr. Almalki said that he had been informed by the Syrian authorities that they had acted on information received from Canada. Also according to Mr. Martel, he noticed during the meeting that Mr. Almalki was limping and asked him whether this was a result of his detention; Mr. Almalki answered, “This is a long history” and Mr. Martel did not press further. According to Mr. Almalki, he advised Mr. Martel that he had been tortured but that he could not talk about the details. 208. In the period between his release from detention and his departure from Syria, Mr. Almalki visited the Canadian Embassy in Damascus on a regular basis. Mr. Martel explained that Mr. Almalki would often spend two or three hours at the Embassy, and while he was there consular staff let him make phone calls—to
his family and lawyers in Canada for example—and tried to facilitate his life and help him maintain contact with Canada. Mr. Martel stated that this kind of service was not given to everybody. Lunch with Mr. Martel 209. On March 22, 2004, Mr. Martel and Mr. Almalki met for lunch. According to the chronology of public information filed by the intervenors, Mr. Martel told Mr. Almalki that the Syrian president had told Senator De Bané in December 2003 that he was frustrated because Syria was being blamed for the detentions of people that Canadians had asked them to detain. Mr. Martel told the Inquiry that he did not say this to Mr. Almalki. He recalls mentioning to Mr. Almalki that Canada was doing its best to assist Canadian detainees and that Senator De Bané had recently met with the Syrian president to discuss the matter. However, Mr. Martel told the Inquiry that he did not convey to Mr. Almalki any further information about the meeting; he was not aware of what had transpired at the meeting. Mr. McTeague’s meeting with Syrian officials 210. On March 22, 2004, Mr. McTeague and Ambassador Davis met with Vice-Minister Mouallem and an official from Far Falestin. Mr. McTeague was told that Mr. Almalki had been released because of close cooperation between Canada and Syria and because of a Canadian request. Mr. McTeague attempted to discuss the need for pragmatic cooperation in the cases of a growing number of dual nationals, but was unsuccessful in engaging Vice-Minister Mouallem on that issue. 211. Following his meeting with Syrian officials, Mr. McTeague met with Mr. Almalki. According to a report of their meeting prepared by an Embassy official, Mr. Almalki did not want to discuss his treatment in detention, but stated he had lost some teeth and that his foot and leg had been damaged during his detention. Information to CSIS 212. In late March 2004, DFAIT provided CSIS with the text of two email messages regarding Mr. Almalki’s release and his visits to the Embassy in Damascus. The messages had been drafted by consular officials, approved by the Ambassador, and sent to officials in DFAIT headquarters. The first message, dated March 18, 2004, reported details of Mr. Almalki’s visit to the Embassy on March 18. It recounted what Mr. Almalki had told consular officials about the conditions of his release, the reasons for his arrest, and his current living situation in Syria. It indicated that Mr. Almalki had asked consular officials to keep his visit confidential. The second email message, dated March 23, 2004 reported details of Mr. McTeague’s March 22 meeting with Mr. Almalki.
Post-release interrogation of Mr. AlmalkiEdit
213. As discussed at paragraphs 105 to 106 of Chapter 8, Mr. Almalki stated that in late March or early April he was asked to return to Far Falestin to retrieve his laptop. He stated that when he did so he was interrogated about information contained in a report that had been faxed on March 29, 2004. The Inquiry found no evidence that Canadian officials supplied a report or other information to Syrian officials on or around March 29, 2004. 214. Embassy officials learned about Mr. Almalki’s post-release interrogation shortly after it occurred. According to Mr. Almalki, he advised Mr. Martel and Maha Kotrache (a consular officer) of the interrogation and the report when he met them for lunch in late April 2004. According to an April 27, 2004 CAMANT note, Mr. Almalki’s brother told Ms. Pastyr‑Lupul that Mr. Almalki had, about one week before, been interrogated by Syrian officials and asked about “a report from Canada.” His brother advised that Mr. Almalki had been released when he told them that there was no substance to the report, but that Mr. Almalki was terrified during the interrogation. According to DFAIT documents from early May 2004, Mr. Almalki visited the Embassy on May 6, 2004 to collect his passport, and while he was there, advised Embassy officials that he had been called back to the “Military Intelligence Branch” on April 22 and interrogated about several individuals, asked to identify persons shown in 10 pictures, and accused of being the spiritual leader of “The Prayer Group”.
Mr. Almalki’s court hearing and exit from SyriaEdit
DFAIT’s efforts to secure Ambassador’s attendance at Almalki’s trial 215. In mid- to late April 2004, the Consular Affairs Bureau and the Canadian Embassy in Damascus made efforts to secure the attendance of Ambassador Davis at Mr. Almalki’s trial. Mr. Almalki indicated to the Embassy that he felt its involvement would put pressure on the Syrians and force them to proceed with a more transparent trial. The Embassy sent a diplomatic note on May 12, 2004 requesting confirmation of Mr. Almalki’s charges and permission for Ambassador Davis to attend the trial.
216. In late April, Ambassador Davis met with the head of the Security Court about the possibility of his attending Mr. Almalki’s trial. During this meeting, Ambassador Davis was asked why he cared about such a “dangerous person.” Ambassador Davis explained to the head of the Security Court that he was primarily concerned that Mr. Almalki be granted due process. At the end of the meeting, the head of the Security Court said he could not make a decision that day and therefore had to postpone Mr. Almalki’s trial. Ambassador Davis suspected that Mr. Almalki’s case was adjourned on that day because of his presence. Mr. Almalki’s trial 217. Mr. Almalki’s trial was held on July 25, 2004, and Ambassador Davis and a senior consular officer were allowed to attend. According to DFAIT documents, at the conclusion of the trial, the judge found Mr. Almalki not guilty on the basis that there was insufficient evidence, but ruled that, as a dual national, Mr. Almalki had to report for military duty on July 27, 2004. According to a Syrian court document, which was provided to the Inquiry by Mr. Almalki’s counsel, the majority of the judges panel hearing his case held that he did not have the legal intent required for the crime with which he had been charged,29 but that, because he was released, he had to go to the Military Recruiting Unit to settle his military drafting status. He was not required to report to the Military Recruiting Unit for 48 hours. 218. Following the verdict, Mr. Almalki left the court with Embassy staff. DFAIT sends Syria a diplomatic note regarding Mr. Almalki’s military service 219. To assist Mr. Almalki, DFAIT took what Ambassador Davis considered to be the exceptional measure of sending a diplomatic note to Syria on July 26, 2004, requesting a deferral of Mr. Almalki’s military service. Ambassador Davis explained that he pursued the issue quite aggressively, because although it might be considered an intervention in local law on military service, he felt that it was warranted nonetheless. 220. The diplomatic note sent to the Syrian authorities on July 26 requested that the authorities reconsider their decision to order Mr. Almalki to report for military service. The note explained that Mr. Almalki had been unable to apply for deferral of his military service because he was detained in Syria, and stated: 29 Mr. Almalki had been charged under Article 278 of the Syrian General Penal Act with doing acts not permitted by the government, that expose Syria to the danger of hostile acts.
Now that the reasons for his detention of over two years have been dismissed by the High Security Court, it would seem only reasonable and equitable for the Government of Syria to agree to renew the deferment of his military [sic]. Embassy’s final contact with Mr. Almalki
221. On July 27, 2004, the day he was required to report for military duty, Mr. Almalki visited the Embassy and spent some time there making telephone calls and speaking with Embassy officials. Mr. Almalki told Mr. Martel that Mr. McTeague’s office had contacted Mr. Almalki’s brothers in Ottawa and told them to tell Mr. Almalki to go to the Canadian Embassy and stay there until the military service issue was resolved. Mr. Martel was surprised by this message because the Embassy had not received instructions to this effect. He told Mr. Almalki that it was not the Embassy’s policy to allow anyone to stay after hours. He also told Mr. Almalki that he was not authorized to help him circumvent the local law and that this was something that Mr. Almalki had to settle with his country of birth. At 4:30 p.m., the Embassy closed for the day, and Mr. Almalki was told by the receptionist that he had to leave.
222. July 27 was the last time that Mr. Martel, or anyone from DFAIT, saw Mr. Almalki in Syria. Mr. Martel explained in his interview that he went away for the weekend and upon his return attempted to contact Mr. Almalki by cell phone. After a few days, he contacted Mr. Almalki’s family members and was told nothing. At that point, Mr. Martel suspected that Mr. Almalki had left the country.
Mr. Almalki returns to CanadaEdit
223. According to Mr. Almalki, on July 28, 2004 he sought advice from people he knew in the Syrian government, who advised that if the judge had really wanted him to fulfill his military service, he would not have been allowed to leave the court; they told him that the judge had let him go because he wanted him to leave the country. Mr. Almalki went to a Syrian immigration office to make arrangements to leave Syria. According to Mr. Almalki, when he asked the immigration officials to transfer his entry visa from his old passport to his new passport they gave him an exit visa instead and then sent him to the head of immigration, who signed the exit visa. Mr. Almalki immediately booked a flight to Vienna and departed the same day.
Canadian officials learn of Mr. Almalki’s return to CanadaEdit
224. On August 9, 2004, CSIS and the RCMP learned that Mr. Almalki was back in Canada. On two occasions in August 2004, CSIS made inquiries of officials at the Canadian Embassy in Damascus regarding Mr. Almalki’s return to Canada, and Embassy officials provided CSIS with their belief as to how Mr. Almalki might have made it back to Canada, as well as information about Mr. Almalki’s trial, and about his activities in Syria prior to his departure. The officials also provided CSIS with details of a conversation that a DFAIT official had had with Mr. Almalki regarding his military service obligations.
225. The RCMP learned about Mr. Almalki’s return to Canada from a CBC radio report, and then inquired with Canada Customs to determine why the Canada Customs lookouts on Mr. Almalki (one of which had been requested by Project A-O Canada) were not triggered upon his re-entry into Canada. Canada Customs advised that, when Mr. Almalki passed through customs upon arriving in Canada, his documents had been checked by a summer student customs officer. Since Mr. Almalki’s passport had been issued outside of Canada, it was not machine-readable, and information from his passport had to be entered manually. The officer entered Mr. Almalki’s first and last name as they appeared on his passport, details which were insufficient to trigger the lookout. Sharing of consular information
226. On at least two occasions during the period following Mr. Almalki’s release, Mr. Martel of the Canadian Embassy in Damascus shared information about Mr. Almalki with CSIS. During a discussion in early May 2004, Mr. Martel volunteered to CSIS some information that Mr. Almalki had shared with him since his release: that Mr. Almalki had no travel plans in the near future, that Mr. Almalki was living in Damascus with his family, and that Mr. Almalki had been summoned to the SyMI two weeks before and questioned about some individuals in Canada. Later in 2004, after Mr. Almalki had left Syria, CSIS asked Mr. Martel for information about Mr. Almalki, and Mr. Martel provided it.
227. When interviewed, Mr. Martel was asked about the propriety of sharing information obtained in the course of providing consular services to Mr. Almalki with CSIS. Mr. Martel said that while he generally tried to avoid getting into discussions with CSIS officials about Mr. Almalki, he wanted to keep the lines of communication open because he thought that CSIS might be able to provide him with some helpful information about Mr. Almalki.
228. At some point Mr. Martel became aware that DFAIT headquarters might be sending his confidential consular reports to CSIS. He said that while he was not certain and had no firm knowledge that the reports were being shared, he was under the impression and would not have been surprised if they were. When asked whether this sort of sharing would be a breach of Consular Affairs Bureau policy, he again said that he was not certain, but that it would depend on the terms of the agreements between DFAIT and the government departments or agencies that received the reports. He went on to say, however, that if the reports dealt with his clients, they were confidential, and that giving them to another agency would be a breach of paragraph 2.4.10 of the Manual of Consular Instructions.
- A more detailed discussion of the September 29, October 2 and October 4 letters is at paragraphs 15 to 21 of chapter 4.
- The crime of “facilitating terrorist activity” was created by Bill C-36 (the Anti-Terrorism Act), which came into force on December 24, 2001, and is now found at section 83.19(1) of the Criminal Code.
- One of these investigative tools—the lookouts—is described immediately below.Background information on American and Canadian lookouts is included in Chapter 4, paragraphs 22 to 25.
- As discussed below at paragraph 115, Project A-O Canada had been advised by Inspector Stephen Covey (then the RCMP liaison officer in Rome) that, because Syria did not recognize Mr. Almalki’s dual Canadian-Syrian citizenship, it would likely not extradite him to Canada if the RCMP laid charges.
- Paragraph 2.4.10 of the Manual of Consular Instructions states, “Information regarding individual Canadians which is gathered by consular personnel in the performance of their duties is not to be divulged to Liaison and Security Intelligence officers without the prior agreement of the person concerned.”