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Court dismisses Ottawa's motion to have Henk Tepper's civil suit struck down

OTTAWA - The federal government has failed in its bid to have the Federal Court of Canada strike down a civil suit filed by a New Brunswick potato farmer who says Ottawa did not do enough to secure his release from a Beirut jail, where he languished for more than a year.

Henk Tepper's statement of claim says the RCMP failed to tell him about an international warrant that was issued for his arrest after Algerian authorities accused him of knowingly shipping rotten potatoes to that country in 2007 — an allegation Tepper has denied.

Tepper was arrested in Lebanon on March 23, 2011, when he travelled to the Middle East to promote seed potatoes from Canada. He says he was held in a basement cell that was infested with cockroaches and spiders.

Tepper's claim says his rights to life, liberty and security of person were violated because the RCMP and government officials blatantly disregarded repeated requests for assistance from him, his family, his legal counsel and Lebanese authorities.

Tepper's allegations have not been proven in court.

The federal government has denied the allegations, saying in a statement of defence it provided Tepper with diplomatic help, including about 10 meetings with representatives of the Canadian government, 40 phone conversations with his family and 50 interactions with his lawyers.

Ottawa later filed a motion with the Federal Court, saying Tepper's case should be struck down because his allegations are devoid of merit.

Federal Court Judge James O'Reilly ruled Thursday that while Tepper's statement of claim is unusual, the government failed to persuade him there is no reasonable cause of action.

O'Reilly's decision says the RCMP owed a duty of care to Tepper because the police force should have known that relaying a false claim to Algerian authorities could result in adverse consequences for someone in Tepper's circumstances.

In Tepper's claim, he alleges the RCMP told Algerian authorities he had refused to be interviewed, when in fact he had simply asked for a lawyer to be present, prompting the RCMP to walk away.

"The facts alleged suggest that the RCMP had information that made it reasonably foreseeable that Mr Tepper was at risk of arrest and detention abroad," O'Reilly's ruling says. "Indeed, the RCMP had supplied information to Algeria that increased the risk to Mr Tepper."

O'Reilly also says the RCMP's operational manual states that information should not be shared with countries whose human rights records are questionable.

"In fact, the RCMP's operational manual expresses a policy that may run counter to its actions here," the decision says.

As well, the judge rejected the RCMP's claim that it had no duty to warn Tepper about the international arrest warrant.

Sally Gomery, one of Tepper's lawyers, said the federal government has the option of filing an appeal of O'Reilly's decision within the next 10 days.

"I am confident that Justice O'Reilly's decision will be upheld if there is an appeal," she said in a email.

— By Michael MacDonald in Halifax

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