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Canada must withdraw Ministerial Direction on information sharing with foreign entities tainted by torture

    March 06, 2012

    The Honourable Vic Toews   
    Minister of Public Safety   
    Ottawa, Ontario    
    K1A 0P8  
    Mr. Richard Fadden
    Canadian Security Intelligence Service
    1941 Ogilvie Road
    Ottawa, Ontario
    K1J 1B7

    March 5, 2012

    Dear Minister Toews and Mr. Fadden,

    We are writing with respect to the Ministerial Direction to the Canadian Security Intelligence Service: Information Sharing with Foreign Entities that has recently become publicly available as a result of an Access to Information Request pursued by media.  We are urgently calling on Minister Toews to withdraw this Ministerial Direction, as it violates Canada’s international human rights obligations to prevent and not be complicit in or contribute to torture.

    By way of letter to Mr. Fadden, dated 28 July 2011, Minister Toews indicates that this Ministerial Direction replaces a previous directive from 2009 dealing with information sharing with foreign agencies.  It also replaces guidance provided in Minister Toews’ December 7, 2010 letter to Mr. Fadden.  We wrote to you on February 9, 2012 expressing our concerns about the position taken in that letter.

    The December 7, 2010 letter had indicated that officials were working on a “more comprehensive Ministerial Direction to guide CSIS’ international information-sharing practices.”  In our February 9th letter we urged that any such Ministerial Direction expressly incorporate a clear ban on CSIS making use of or sharing information that may have been obtained under torture.  Unfortunately, now that we see the new Ministerial Direction, it is evident that there is no such ban and that it remains possible in “exceptional circumstances,” where there is a serious risk of loss of life, injury or substantial damage or destruction of property, for CSIS to make use of information that may have been obtained under torture.   For all of the reasons laid out in our earlier letter we continue to call on the government to adopt a policy under which information will not be used if there are reasonable grounds to believe it has been obtained under torture.

    Additionally, the Ministerial Direction deals with the question of whether or not to provide information to or seek information from foreign agencies when doing so would give rise to a substantial risk of torture.  Under international human rights law, the answer to that question should always be no, as there are no circumstances that ever justify torture.
    Unfortunately the Ministerial Direction does not take that position and instead lays out a number of criteria to be taken into account, with the clear possibility that decisions will be taken to either provide or seek information even when that will lead to a substantial risk of torture. That position is in direct contravention of Canada’s international obligations to prevent torture, criminalize torture and to not be complicit in torture.

    Minister Toews, Mr. Fadden, it is particularly disappointing that this second position has been taken as it undermines and disregards the crucial lessons of both the Arar and Iacobucci Inquiries.  Those inquiries both clearly demonstrated that inappropriate sharing of information by Canadian law enforcement and security officers with foreign agencies contributed to the serious human rights violations, including torture, experienced by Maher Arar, Abdullah Almalki and Muayyed Nureddin in Syria and by Ahmad Abou Elmaati in both Syria and Egypt.

    In the Arar Inquiry, Commissioner O’Connor was very clear on this point.  In Recommendation 14 he concluded that:

    .... Information should never be provided to a foreign country where there is a credible risk that it will cause or contribute to the use of torture. Policies should include specific directions aimed at eliminating any possible Canadian complicity in torture, avoiding the risk of other human rights abuses and ensuring accountability.

    Commissioner O’Connor does not provide any criteria to be taken into account because he properly aligns the recommendation with what is required under international law: to “never” provide information to foreign agencies if there is a credible risk it will lead to torture.  In discussing the basis for this recommendation he referred to the RCMP’s then-existing policy, “Enquiries from Foreign Governments that Violate Human Rights”.  He expressed concern that the policy did not clearly prohibit activities that violate human rights.

     I have serious reservations about its adequacy, especially since it seems to suggest that the need to comply with certain international terrorism conventions is in itself sufficient reason for the RCMP to participate in activities that violate individual rights.

    The need to investigate terrorism and the need to comply with international conventions relating to terrorism do not in themselves justify the violation of human rights. The international conventions cited in the RCMP policy, which I note has only a partial, out-of-date listing of conventions Canada has signed, do not authorize departures from human rights standards protected under various other international instruments Canada has agreed to abide by, such as the International Covenant on Civil and Political Rights and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture.

    Article 2, paragraph (2) of the Convention against Torture provides that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Article 4, paragraph (1) moreover requires that a state party to the Convention “ensure that all acts of torture are offences under its criminal law” and that the same apply to any “attempt to commit torture” or any “act by any person which constitutes complicity or participation in torture.”  Finally, under Article 3, paragraph (1), no state party shall send a person to a country where there are “substantial grounds for believing that he would be in danger of being subjected to torture.” Clearly, the prohibition against torture in the Convention against Torture is absolute. Canada should not inflict torture, nor should it be complicit in the infliction of torture by others.

    This Ministerial Direction, which permits information to be shared with or received from other governments even if that creates a substantial risk of torture, contravenes this important recommendation.  Commissioner O’Connor conducted a comprehensive inquiry that lasted over two years and resulted in a number of important recommendations.  Subsequent government policy should be wholly directed towards implementing and complying with those recommendations.   In fact, while there has not been any comprehensive public reporting on the status of compliance with the recommendations, the government has repeatedly assured Canadians that they are being implemented.  In fact, in responding to a report from the House of Commons Standing Committee on Public Safety, the government indicated that the process of implementation is “largely complete”.

    The Government took immediate action to accept and implement the recommendations put forward in Justice O’Connor’s first report, Report of the Events Relating to Maher Arar (Part I – Factual Inquiry), and this process is largely complete, with 22 of the 23 recommendations having been implemented.  

    This Direction does not move towards implementing Recommendation 14; it does precisely the opposite.  It in fact institutionalizes one of the serious shortcomings that led to the human rights violations that came to light through the Arar and Iacobucci Inquiries. 

    The Ministerial Direction runs afoul of Canada’s international human rights obligations in two fundamental respects:
    • It allows information to be provide to or sought from foreign agencies even if that gives rise to a substantial risk of torture; and
    • It authorizes the use of information that may likely have been derived through torture in other countries.
    The fact that the policy may be limited to exceptional circumstances involving public safety concerns is no justification as international law does not allow or excuse the use of torture in any circumstances.  Governments are of course obligated to take action to respond to terrorist and other threats to public safety.  But they must do so in ways that do not cause, contribute to or condone torture.

    We urgently call on the government to withdraw this Ministerial Direction and replace it with one that fully conforms with Canada’s international human rights obligations.  We would welcome an opportunity to meet with you to discuss this further.

    Alex Neve     
    Secretary General   
    Amnesty International Canada   
    (English branch)


    Béatrice Vaugrante
    Directrice Générale
    Amnistie international Canada francophone


    John Tackaberry,
    Media Relations,
    Amnesty International Canada
    613-744-7667, ext 236