MONTREAL - A federal government document involving the case of a Canadian man trapped in Sudan states Canada would violate its international obligations by allowing him to return home -- an argument his lawyers say doesn't hold water.
Foreign Affairs issued a factum Friday outlining its position in the case of Abousfian Abdelrazik, who has been living in the lobby of the Canadian Embassy in Khartoum where he sought refuge almost one year ago.
The government document states that Abdelrazik's listing under an international travel ban takes precedence over his right as a citizen to enter Canada.
"Section 6 of the Canadian Charter of Rights and Freedoms does not guarantee a right to travel through other countries to enter Canada...The travel ban prohibits other states from allowing the applicant to enter into travel through their territories," it says.
And in a later paragraph: "The requested remedy of repatriation would interfere in matters of Crown prerogative, foreign affairs and high policy and risks putting Canada in breach of its international obligations."
Abdelrazik was arrested in Khartoum in 2003, where he went to visit his ailing mother.
His lawyers are set to appear in Federal Court next month to argue that Sec. 6 of the Charter of Rights and Freedoms -- the right of a citizen to enter Canada -- has been breached and he should be flown home by whatever means are necessary.
"The government is prioritizing international law over our Section 6 right to come back to Canada, our Charter of Rights and Freedoms," Abdelrazik's lawyer Audrey Brousseau told The Canadian Press.
"I think these are speculative arguments about the transit to other third-party states. There's a basic right of repatriation with (the international no-fly list) but Canada goes further and adds another obstacle and says we might need approval from other parties. This to me does not make sense."
Brousseau said in an interview that there are numerous documented cases of people on the UN 1267 list returning home. She says one example is Abdelghani Mzoudi, a Moroccan once accused of involvement in the 9-11 terrorist attacks.
Brousseau also points to a built-in exemption to the UN's no-fly list that allows justified transit or entry on a case-by-case basis.
"The government has create important hurdles for him to come back, so in that sense they have truly violated his rights," she said.
"What we're seeing here is that he doesn't need any approval. Alternatively, if they feel he needs and exemption, then go get it."
A spokesman for Foreign Affairs wouldn't comment directly on the factum but said the government has reasons relating to national security for preventing Abdelrazik from coming home.
"Mr. Abdelrazik is on the UN 1267 list as an individual associated with al-Qaida and is therefore subject to a travel ban and asset freeze," said Daniel Barbarie, adding the man was provided with regular consular assistance.
Abdelrazik's case has been gaining public support.
Family members have come forward urging the government to let him fly home and Liberal and NDP MPs have backed his cause.
Earlier this month, a group of some 170 supporters purchased a plane ticket for him to return to Canada but he was denied an emergency passport last minute on the grounds he is a national security threat.
Ottawa cited a section of the Canada Passport Order that allows the foreign affairs minister to "refuse or revoke a passport if the minister is of the opinion that such action is necessary for the national security of Canada or another country."
Further, Foreign Affairs Minister Lawrence Cannon announced in March that Abdelrazik would first have to get his name off the no-fly list.
However, the federal government had itself previously lobbied for the de-listing of Abdelrazik in 2007 after both the RCMP and CSIS cleared him of any involvement in terrorism or crime and Abdelrazik has also denied ties to Osama bin Laden.
The RCMP has said there is no information linking him to any crime and a recently published report suggests CSIS operatives were the ones who initially asked Sudanese authorities to arrest and detain Abdelrazik.
But the government document obtained by The Canadian Press from Abdelrazik's lawyers rejects that claim and also questions his allegations of torture while in Sudanese custody.
"They challenge the credibility of Abousfian Abdelrazik on the torture allegations," said Brousseau."These are serious allegations."
The document notes that Abdelrazik never mentioned any abuse when consular officials visited him in Sudanese jail.
"There is no documented evidence that the applicant ever reported to Canadian officials the torture he now alleges was inflicted by Sudanese officials," it says.
"Nor did consular officials, who are experienced or trained in looking for mistreatment, see any signs of the torture the applicant now alleges."
Abdelrazik says he kept mum on the mistreatment for years out of fear of reprisal and claims he later told three separate Canadian officials that he was abused, something they deny.
Now, Brousseau says the government has done everything in its power to obstruct her client's return and it's time they let him come back to Canada.
"The essence of our application is simple: bring this man home, repatriate this man by any safe means at your disposal," she said.
"We know you can do it. Do it."
