Access to Justice for the Wrongfully Accused in National Security Investigations

Abstract

Among the casualties in the ‘war on terror’ is the presumption of innocence. It is now known that four Canadians who were the subject of investigation by the RCMP and CSIS were detained and tortured in Syria on the basis of information that originated in and was shared by Canada. None has ever been charged with a crime. On their return home, all four men called for a process that would expose the truth about the role of Canadian agencies in what happened to them, and ultimately help them clear their names and rebuild their lives. To date, in varying degrees, all four men continue to wait for that 'process'. In this paper, I examine the access to justice mechanisms available to persons who are wrongfully accused of being involved in terrorist activities. Utilizing the case study of one of the four men, Abdullah Almalki, I explore the various processes available to him: (i) a complaint to the relevant domestic complaints bodies, the Security Intelligence Review Committee and the Commission for Public Complaints Against the RCMP; (ii) a commission of inquiry; and (iii) a civil tort claim. Due in large part to the role national security confidentiality plays in these mechanisms, all three models are found to be ineffective for those seeking accountability in the national security context.

Keywords: access to justice, national security, legal process

JEL Classification: K10, K41