Source: The Ottawa Citizen
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Date: March 7, 2012
It has recently been revealed that last summer, Minister of Public Safety Vic Toews authorized CSIS in “exceptional cases” to send information to foreign entities even if there was a substantial risk that it would result in torture. Have we learned nothing from the Arar and Iacobucci inquiries held into the torture of Canadians held abroad?
The directive — written in Ottawa’s Orwellian language where torture becomes mistreatment — pays lip service to some of the recommendations of the Arar Commission. The director of CSIS will now have to consider the views of the Department of Foreign Affairs (and any other agency) before sending information to Syria or some other country that uses torture.
There are references to Canada’s international and Criminal Code obligations not be complicit or participate in torture, but no substantive engagement with those obligations.
It is tempting to blame Canada’s descent from a leader on human rights to a nation associated with torture (even as the U.S. right repudiates it) on Toews and his government, but the story is more complex.
Canada went offside on torture immediately after 9/11. The Supreme Court accepted that while deportation to torture is never justified under international law, it might in “exceptional circumstances” be permissible under the Charter. In 2009, the Federal Court of Appeal refused to apply the Charter even as it assumed that Canadian Forces handed off Afghan detainees to torture. There are echoes of these regrettable decisions in the July, 2011 directive.Canadian courts have so far refused to allow deportation to torture, but the government has held this argument in reserve in the security certificate cases. Courts have, however, deferred to dubious ministerial determinations that there is no substantial risk of torture. In one case, we deported a suspected Sikh terrorist to India when the UN Committee Against Torture was satisfied that he would be tortured. To its credit, Canada appointed two inquiries into whether Canadian officials were complicit in the torture of Maher Arar and other Canadians held in Syria. The inquiries found disturbing practices of Canadian agencies sending questions to the torture chambers of Damascus. The Arar inquiry called on all Canadian agencies to re-evaluate their policies on information sharing. Toews’ July, 2011, directive is not what reformers had in mind. Some may believe Canada should not ignore intelligence about a possible bombing in Canada because it was obtained by torture. The directive makes clear that in such situations, the priority will be security. But the July 2011 directive goes beyond so-called protective uses of such intelligence and contemplates that CSIS can send information to foreign agencies even in the face of a substantial risk that those agencies will use the information to capture and torture terrorist suspects. The director of CSIS is required to balance Canada’s security interests against the risk of torture. But the government always has an incentive to prefer security over human rights, especially in cases where its citizens’ own rights will not be violated. Toews is famous for his concern for law and order, but there is danger that the directive could result in Canadian officials aiding and abetting torture abroad, which is a crime in Canada. Information can be sent even if there is guilty knowledge that it will likely result in torture. Guilty intent is also required, but one can aid and abet torture without desiring it or even intending it will occur. But Toews may not risk criminal liability should the director of CSIS exercise his discretion not to inform him. The directive also fails to require the director to notify the Security Intelligence Review Committee (SIRC) after the fact that the service has triggered its exceptional circumstances provisions in relation to intelligence and torture. Remember SIRC? They are the watchdog of CSIS. They had better be on their toes given this directive. Alas the government has rejected the Arar Commission’s and SIRC’s own recommendation that the watchdog needs more powers to follow the information sharing trail in the post-9/11 environment. Moreover, SIRC has been without a permanent head since the resignation of Arthur Porter in November, 2011. This is a dangerous game. We should all be concerned about the danger of complicity in the brutal practice of torture. Kent Roach is a professor of law at the University of Toronto and a former member of the research advisory committee of the Arar Commission. He is the author of The 9/11 Effect: Comparative Counter-Terrorism.
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