Iacobucci Inquiry: Terms of Reference

Terms of reference
Whereas the Report of the Events Relating to Maher Arar of September 18, 2006 recommends that the cases of Abdullah Almalki, Ahmad Abouž-žElmaati and Muayyed Nureddin should be reviewed and that the review should be done through an independent and credible process that is able to address the integrated nature of the underlying investigations and inspires public confidence in the outcome;
Whereas that report states that there are more appropriate ways than a fullž-žscale public inquiry to investigate and report on cases where national security confidentiality must play a prominent role;
And whereas the Government of Canada, the Commissioner of the Royal Canadian Mounted Police, the Director of the Canadian Security Intelligence Service and the Deputy Minister of Foreign Affairs have committed to full cooperation with the review process;
Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, hereby directs that a Commission do issue under Part I of the Inquiries Act and under the Great Seal of Canada appointing the Honourable Frank Iacobucci as Commissioner to conduct an internal inquiry into the actions of Canadian officials in relation to Abdullah Almalki, Ahmad Abouž-žElmaati and Muayyed Nureddin (the “Inquiry”), which Commission shall:
(a)direct the Commissioner to conduct the Inquiry in order to determine the following:
(i)whether the detention of Abdullah Almalki, Ahmad Abouž-žElmaati and Muayyed Nureddin in Syria or Egypt resulted, directly or indirectly, from actions of Canadian officials, particularly in relation to the sharing of information with foreign countries and, if so, whether those actions were deficient in the circumstances,
(ii)whether there were deficiencies in the actions taken by Canadian officials to provide consular services to Abdullah Almalki, Ahmad Abouž-žElmaati and Muayyed Nureddin while they were detained in Syria or Egypt, and
(iii)whether any mistreatment of Abdullah Almalki, Ahmad Abouž-žElmaati and Muayyed Nureddin in Syria or Egypt resulted, directly or indirectly, from actions of Canadian officials, particularly in relation to the sharing of information with foreign countries and, if so, whether those actions were deficient in the circumstances;
(b)direct the Commissioner to conduct the Inquiry as he considers appropriate with respect to accepting as conclusive, or giving weight to, the findings of other examinations that may have been conducted into the actions of Canadian officials in relation to Abdullah Almalki, Ahmad Abouž-žElmaati and Muayyed Nureddin;
(c)direct the Commissioner to conduct the Inquiry under the name of the Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abouž-žElmaati and Muayyed Nureddin;
(d)authorize the Commissioner to adopt any procedures and methods that he considers expedient for the proper conduct of the Inquiry, while taking all steps necessary to ensure that the Inquiry is conducted in private;
(e)despite paragraph (d), authorize the Commissioner to conduct specific portions of the Inquiry in public if he is satisfied that it is essential to ensure the effective conduct of the Inquiry;
(f)authorize the Commissioner to grant to any person who satisfies him that they have a substantial and direct interest in the subjectž-žmatter of the Inquiry an opportunity for appropriate participation in it;
(g)authorize the Commissioner to recommend to the Clerk of the Privy Council that funding be provided, in accordance with approved guidelines respecting rates of remuneration and reimbursement and the assessment of accounts, to ensure the appropriate participation of any party granted standing under paragraph (f), to the extent of the party's interest, where in the Commissioner’s view the party would not otherwise be able to participate in the Inquiry;
(h)authorize the Commissioner to rent any space and facilities that may be required for the purposes of the Inquiry, in accordance with Treasury Board policies;
(i)authorize the Commissioner to engage the services of any experts and other persons referred to in section 11 of the Inquiries Act, at rates of remuneration and reimbursement approved by the Treasury Board;
(j)direct the Commissioner to use the automated document management program specified by the Attorney General of Canada and to consult with records management officials within the Privy Council Office on the use of standards and systems that are specifically designed for the purpose of managing records;
(k)direct the Commissioner, in conducting the Inquiry, to take all steps necessary to prevent the disclosure of information to persons or bodies other than the Government of Canada that, if it were disclosed to those persons or bodies, would be injurious to international relations, national defence, national security, or the conduct of any investigation or proceeding, if the information, in the opinion of any of the following persons, falls into that category:
(i)the Commissioner, or
(ii)the Minister responsible for the department or government institution in which the information was produced or, if not produced by the government, in which it was first received;
(l)direct the Commissioner that, if he disagrees with the opinion of the Minister referred to in subparagraph (k)ž(ii) that the disclosure of the information would be injurious to international relations, national defence or national security, he shall, without adjudicating the matter, so notify the Attorney General of Canada, which notice shall constitute notice under section 38.ž01 of the Canada Evidence Act;
(m)direct the Commissioner to submit, on or before January 31, 2008, both a confidential report and a separate report that is suitable for disclosure to the public simultaneously in both official languages to the Governor in Council;
(n)direct the Commissioner, in preparing the separate report, to take all steps necessary to prevent the disclosure of information that, if it were disclosed to the public, would be injurious to international relations, national defence, national security or the conduct of any investigation or proceeding, if the information, in the opinion of any of the following persons, falls into that category:
(i)the Commissioner, or
(ii)the Minister responsible for the department or government institution in which the information was produced or, if not produced by the government, in which it was first received;
(o)direct the Commissioner that, if he disagrees with the opinion of the Minister referred to in subparagraph (n)ž(ii) that the disclosure of the information would be injurious to international relations, national defence or national security, he shall, without adjudicating the matter, so notify the Attorney General of Canada, which notice shall constitute notice under section 38.ž01 of the Canada Evidence Act;
(p)direct that nothing in the Commission shall be construed as limiting the application of the provisions of the Canada Evidence Act;
(q)direct the Commissioner to follow established security procedures, including the requirements of the Government Security Policy, with respect to persons engaged under section 11 of the Inquiries Act and the handling of information at all stages of the Inquiry;
(r)direct the Commissioner to perform his duties without expressing any conclusion or recommendation regarding the civil or criminal liability of any person or organization;
(s)direct the Commissioner to perform his duties in such a way as to ensure that the conduct of the Inquiry does not jeopardize any ongoing investigation or criminal proceeding, and to consult with the government institution responsible for any ongoing investigation or proceedings about any jeopardy that could result from the conduct of the Inquiry;
(t)direct the Commissioner to file the papers and records of the Inquiry with the Clerk of the Privy Council as soon as reasonably possible after the conclusion of the Inquiry; and
(u)direct the Commissioner, in respect of any portion of the Inquiry conducted in public under paragraph (e), to ensure that members of the public can, simultaneously in both official languages, communicate with the Commission, and obtain from it services including any transcripts of proceedings that have been made available to the public.