Surrendered

Last week, Minister of Justice Rob Nicholson ordered the surrender of Hassan Diab to the Republic of France. As readers of these pages will know, Mr. Diab is a Canadian citizen whose extradition is being sought in connection with a bombing in Paris in October, 1980. We’ve been following his extradition proceedings because of concerns that if delivered to France, Mr. Diab may face trial based on evidence potentially derived from torture, given France’s documented history of using torture evidence in anti-terrorism investigations and trials.

Extradition in Canada is a two-step process. First, an extradition judge must issue an order for committal based on a “Record of the Case” provided by the requesting state, which sets out the case and evidence against the accused. After an order for committal has been entered, the Minister of Justice then decides whether it is appropriate to surrender the accused to the requesting state.

Last June, a court in Ontario issued a committal order for Mr. Diab’s extradition. In September, the BCCLA wrote to the Minister of Justice, urging him to ensure that Canadian citizens are protected against foreign prosecutions relying on evidence derived from torture. In our view, there were only two ways Canada could properly protect its citizens in such circumstances: first, to refuse the surrender altogether, or second, to only surrender subject to strict conditions that the accused would not be tried based on evidence potentially derived from torture.

Minister Nicholson, however, has decided to surrender Mr. Diab without conditions. With respect to the concerns raised about France’s reliance on unsourced intelligence, the Minister acknowledges that:

I am mindful that under Canadian law, our courts have identified serious concerns with the admission of intelligence evidence to detain and prosecute individuals, including with respect to the person’s ability to challenge the reliability and veracity of this type of unsourced information. Our courts have found that the admission of such evidence would, in Canada’s adversarial system of justice, render a trial unfair.

Nonetheless, he argues that:

… Mr. Diab will have recourse to the European Court of Human Rights (ECHR), to which France is subject, to bring any claim that his fair trial rights have been infringed by France. As well, France is a party to the UNCAT [UN Convention Against Torture] and is under the same obligations as Canada to ensure that torture-derived evidence is “not invoked as evidence in any proceedings.” In addition, France has made a declaration under Article 22 that they agree to allow individual complaints to the Committee Against Torture, which monitors the implementation of the UNCAT by States Parties.

And with respect to concerns over France’s use of evidence derived from torture, the Minister states:

Mr. Diab is not being surrendered to a country that condones the use of torture-derived evidence or that is known to use evidence that is the product of torture in its criminal proceedings. … [W]hile France’s legal system is different from that which operates in Canada, it is nevertheless one that comports with our overall concepts of justice and the duty to uphold constitutional standards, including with respect to banning the use of torture-derived evidence to detain and try accused persons.

But this assertion runs contrary to what Human Rights Watch has repeatedly documented: the use of “foreign torture material” by the French judiciary, “both in the investigative phase and at trial.” And while the Minister attempts to draw a distinction between extraditing Mr. Diab to France as opposed to Egypt or Jordan, for example, by citing France’s status as a state party to the Convention Against Torture, it is important to remember that Egypt and Jordan are also parties to the Convention. When it comes to whether a country is truly respecting the anti-torture principle, it simply isn’t enough to point to the fact that it is a signatory to the Convention Against Torture.

Moreover, it appears that as far as the Minister is concerned, if Mr. Diab has a problem with the French relying on evidence derived from torture, then Mr. Diab can take it up with the United Nations and the ECHR, and seek remedies against France directly. But this approach flatly ignores the threshold question: why surrender Mr. Diab to trial by an unfair system to begin with?

The Minister’s reasons for surrender run to roughly 32 pages, but the clear theme running through them is this: Mr. Diab’s concerns about the fairness of the proceedings in France and the prosecution against him can be explained by the fact that France and Canada have different judicial systems, but “principles of comity and good faith” dictate that Canada must “assume” that France will treat Mr. Diab fairly, “even if the evidentiary and procedural requirements under which he would be tried are at variance with our own.”

But such a position is untenable where, as here, there are documented reports of France’s willingness to use evidence derived from torture, in direct contravention of the exclusionary rule. And principles of comity and good faith — while important in international relations and in matters of diplomacy — must give way where, as here, rights violations would result. In this case, Canada’s priority must be the protection of its citizens.

Reports are that Mr. Diab plans to appeal the Minister’s decision, possibly all the way to the Supreme Court of Canada. He already has an appeal underway of the extradition judge’s committal order. We’ll keep you posted as this case continues to develop.


No means no, redux

Just when it looks like the ministerial directives at CSIS couldn’t get more troubling, Jim Bronskill and his Access to Information requests uncover ever more disturbing material.

As readers of these pages will recall, last month, Mr. Bronskill reported on a December 2010 ministerial directive in which Public Safety Minister Vic Toews apparently informed CSIS that the agency is expected to rely on information potentially obtained through torture in “exceptional circumstances.” That was distressing enough, given that relying on evidence derived from torture violates the universal and absolute prohibition against torture. But last week, Mr. Bronskill reported on another document obtained through the Access to Information Act, even more troubling than the December 2010 directive.

In a four-page directive issued in July 2011 to CSIS director Richard Fadden, Minister Toews outlines the procedures for sharing information with foreign agencies in cases where such cooperation carries “substantial risk” that someone will be tortured.

While Minister Toews’ parliamentary secretary has said that the directive is “in line” with Canada’s international human rights obligations, we respectfully disagree. That there is even a procedure in place to assess whether Canada should cooperate with foreign agencies if such cooperation would result in torture bespeaks a fundamental misunderstanding of what is permissible under the international human rights regime.

To be clear: the prohibition against torture isn’t simply a promise to not explicitly and directly engage in torture. In order for the prohibition against torture to have any meaning or efficacy, all activity associated with torture must be equally condemned. That certainly includes accepting and using evidence derived from torture, and in sharing intelligence with foreign partners with the knowledge that torture may well result.

Our colleagues at Amnesty International Canada have issued a terrific open letter to Minister Toews and Mr. Fadden. (Go read it!) They quote at length the recommendations of Justice O’Connor at the conclusion of his inquiry into Canada’s complicity in the rendition and torture of Maher Arar, and make the excellent observation that the July 2011 directive “in fact institutionalizes one of the serious shortcomings that led to the human rights violations” discovered during the Arar inquiry.

There is much to be learned from Justice O’Connor’s findings and recommendations, but the teaching that keeps coming to our minds is this: “Canada should not inflict torture, nor should it be complicit in the infliction of torture by others.” It’s something that cannot be repeated enough.

 


Read before crossing

If you’re like us at the BCCLA National Security Blog, you store a lot of personal and private information on your laptops, smart phones, and other portable electronic devices. Today, we published a handbook (and a pocket guide!) to help you keep your information private when crossing the border into Canada. Why a handbook about border searches? Because the threshold for constitutionally-permissible search and seizure is lowered at the border, and because electronic devices — which can contain vast amounts of sensitive and personal information — are increasingly becoming the target of border searches.

So check out our handbook (which will get updated as the law and technology changes, in this rapidly evolving area), and our pocket guide (available for you to download and print out and fold into something wallet-sized). (And because we can’t help but brag a little: we made it onto Boingboing!)


What’s bogus?

The government is keeping us busy this week. Two days after tabling the “lawful access” bill, government tabled Bill C-31, the so-called “Protecting Canada’s Immigration System Act”, a draconian overhaul of the immigration laws aimed at “getting tough” on “bogus” refugees.

The Canadian Association of Refugee Lawyers (CARL) has put out a very helpful overview of the major problems with Bill C-31. We’re excerpting it in its entirety (primarily because we really couldn’t put any of this better ourselves, but also because it’s not up on their website):

1)      The omnibus nature of the bill hides key initiatives and detracts from proper scrutiny

  • This huge omnibus bill rolls together proposed anti-smuggling Bill C-4, the current refugee system, and the future refugee system, as well as additional new elements, including the use of biometrics.
  • Like Bill C-10 (the omnibus crime bill), this is a complicated omnibus bill whose bulk is designed to inhibit careful scrutiny and precise analysis of several controversial issues.

2)      The draconian measures of C-4 are rolled into this new bill

  • C-4’s proposed mandatory, unreviewable, warrantless, year-long detention is patently unconstitutional. The Supreme Court of Canada decided this issue in the clearest of terms.
  • Family separation for at least 5, and up to 8 or more years, will have disastrous consequences for refugees.

3)      Hasty timelines deny refugees a fair chance to prove their claims

  • Bill C-31 significantly changes our current refugee system, making it hasty and unfair. It imposes unrealistic deadlines on refugee claimants, and uses a failure to meet deadlines as a means to disqualifying refugee claimants without ever having a fair and reasonable opportunity to tell their story.
  • Refugees will only have 15 days to deliver a written version of their history, and 15 days to present an appeal.  This is not enough time to seek legal advice and respond to complicated legal requirements.

 4)      The designated “safe” country list, and the Minister’s unilateral power to list countries, dangerously politicizes the refugee system

  • Refugee claimants who are put on a designated safe country list are subjected to even shorter deadlines to submit a written claim, and will not have access to an appeal.
  • The Minister need not justify why he deems a country safe, nor does he have to take account of the differential risk faced by certain minorities in a country that is ‘safe’ for others. Refugees will be vulnerable to the political whims of the Minister and the government.

 5)      The Minister’s constant reference to “bogus” claims is an egregious misrepresentation

  • The refugee definition is very technical.  Many claimants come with a genuine fear of harm but may not meet the definition of a refugee.  That does not make them ‘frauds’ or ‘bogus’, or abusers of the system.  Their search for protection is genuine.

6)      Canada’s humanitarian safety net is gravely weakened

  • Bill C-31 forces people, upon arrival, to make an impossible choice between making a refugee claim or an application for humanitarian consideration.  Each of these processes is complicated and making an informed decision is simply not possible for persons who have just arrived.
  • Canada has long recognized that a broad humanitarian consideration process is necessary to preserve the flexibility of our protection system. Barring access to this is contrary to our humanitarian tradition.

Readers of these pages will know that we have long quarrelled with the proposed measures of C-4 (and its predecessor Bill C-49). We have also been concerned about the government’s rhetoric surrounding discussions of refugees, asylum seekers, and immigrants.

Bill C-31 reiterates, encompasses, and compounds these various mischiefs — and that’s what’s bogus.


Access this

This morning, the government tabled its so-called “lawful access” bill — which, if enacted, would enormously expand the ability of law enforcement agencies to engage in telecommunications surveillance (and for certain types of information, without even the benefit of a warrant).

This was hardly unexpected — in the run-up to finally tabling the legislation, Public Safety Minister Vic Toews has been launching preemptive strikes against those who would criticize the proposed legislation, accusing them of “aligning themselves with child pornographers.”

BCCLA Policy Director Micheal Vonn has been on media outlets all morning, giving her take on the proposed legislation, so we’ll be back with a round-up of her commentary. In the meantime, we wanted to share with you some resources to help make sense of these bills.

Last month, the BCCLA issued a report on “lawful access” legislation, in anticipation of today’s bills. What is “lawful access”? Well, we of course encourage you to read our report in full, but here’s a teaser:

“Lawful access” refers to the ability of law enforcement and intelligence agencies to lawfully conduct surveillance, and intercept or collect personal information of individuals, for example, by means of a search warrant. . . . The proposed new legislation takes advantage of new technologies, new modes of communication and new social practices to significantly expand access by law enforcement agencies to the personal information of individuals. Indeed, while referred to as “lawful access” powers, the lawfulness of some of these powers under the Charter of Rights and Freedoms is questionable.

For a quick primer on “lawful access” and why these bills are deeply problematic, we commend to you Michael Geist’s very information FAQs: Everything You Always Wanted to Know About Lawful Access, But Were (Understandably) Afraid to Ask.

Check out also (un)Lawful Access, a 15-minute video featuring interviews with Canadian experts (and produced by our colleague Kate Milberry).

And in the past, the Privacy Commissioners in Canada have also expressed their concerns about previous iterations of today’s lawful access legislation. The Information and Privacy Commissioner of Ontario made submissions to the Minister of Justice and Attorney General of Canada during the 2005 lawful access consultations. Last year, Privacy Commissioner of Canada Jennifer Stoddart sent an open letter to the Minister of Public Safety outlining her serious concerns about potential lawful access legislation.

If all of this has gotten you riled up, send a message to your MP via Open Media’s site.

Update (April 15): Here’s some of the BCCLA’s commentary in the media yesterday.

CBC: Online privacy erosion dismays critics

Georgia Straight: Court challenge likely if online surveillance bill passes, suggests B.C. civil rights advocate


No means no

Jim Bronskill is reporting today on a December 2010 directive recently obtained under the Access to Information Act, in which Public Safety Minister Vic Toews has apparently informed CSIS that the spy agency is expected to rely on information possibly obtained through torture in “exceptional circumstances.” As per Jim Bronskill:

The latest directive says in “exceptional circumstances” where there is a threat to human life or public safety, urgency may require CSIS to “share the most complete information available at the time with relevant authorities, including information based on intelligence provided by foreign agencies that may have been derived from the use of torture or mistreatment.”

In such rare circumstances, it may not always be possible to determine how a foreign agency obtained the information, and that ignoring such information solely because of its source would represent “an unacceptable risk to public safety.”

“Therefore, in situations where a serious risk to public safety exists, and where lives may be at stake, I expect and thus direct CSIS to make the protection of life and property its overriding priority, and share the necessary information – properly described and qualified – with appropriate authorities.”

We fear that we’re beginning to sound like a bit of a broken record here at the National Security Blog, but some things seem to need repeating: The prohibition against torture is absolute and non-derogable. That means it allows no exceptions, and there are no “extraordinary” circumstances under which torture is acceptable. The UN Convention Against Torture cannot be more clear on this point: “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

Like the prohibitions against slavery and genocide, the prohibition against torture is widely recognized as a peremptory norm of customary international law. Saying that there are exceptional circumstances where torture is acceptable is akin to saying that there are exceptional circumstances where slavery or genocide are acceptable. Under customary international law, Canada has an affirmative obligation to prevent torture. So it is not enough for Canada to say that it is not itself engaging in torture, because it has a legal responsibility to ensure that its actions don’t make it complicit in torture, or condoning of torture.

And using information derived from torture (or even potentially derived from torture) condones torture and abuse. As per usual, we can’t put it any better than Alex Neve, Secretary General of Amnesty International Canada:

“The bottom line is that as long as torturers continue to find a market for the fruit of their crimes, torture will continue,” he said.

Canada cannot become a market for torturers and their information. While the government has at various times insisted that it does not rely on information obtained through torture, this most recent report does little to assuage concerns that Canada is running seriously afoul of its international obligations and its own commitment to the most basic of human rights.

As the Supreme Court of Canada has observed, “torture is an instrument of terror and not of justice.” There can be no place for torture in Canadian society.

No exceptions.


Contrariwise, if it was so, it might be; and if it were so, it would be; but it isn’t, it ain’t.

Contrariwise, if it was so, it might be; and if it were so, it would be; but it isn’t, it ain’t. That’s logic. (1)

Happy 2012 from the BCCLA National Security Blog. We start off the year with a report that the Department of National Defence has decided to extend the protections of Canada’s Privacy Act to detainees captured by Canadian Forces operating in Afghanistan.

Wait.

What?

According to media reports, the DND’s invoking the detainees’ privacy rights as a means of resisting disclosure of photographs.

By way of background, Paul Champ and Amir Attaran sought, via an Access to Information request, photographs of detainees captured by Canadian Forces in Afghanistan. They had originally requested these photographs to determine whether they contained any evidence of detainee torture or abuse. Their request was refused.

Such secrecy and refusal to disclose even basic information about the treatment of CF-captured detainees is nothing new, of course. Readers of these pages will recall how difficult it was for the MPCC — and even Parliament — to get documentary disclosures relating to Afghan detainees from government. To test how far the government was willing to keep information about detainees out of the public eye, Professor Attaran modified his request: if maintaining the detainees’ privacy rights was a concern, then he would be willing to accept photographs that completely blacked out the detainees’ faces, but left their hair-styles unobscured. His request was again refused, despite a recommendation from the Information Commissioner of Canada that the blacked-out photographs be released.

The Ottawa Citizen is now reporting that the DND withheld these photographs based on a theory that their release would violate the detainees’ privacy rights. As reported:

“National Defence will not follow the recommendation made by the Information Commissioner of Canada regarding disclosure of photographs covered by this file and is prepared to defend the decision in court if necessary,” Julie Jansen, head of DND’s Access to Information branch, wrote in the October 2010 briefing note.

Jansen argued the photographs constituted “personal information” of the insurgents and releasing images of their hairdos would “probably cause injuries related to national security.”

The privacy rights of detainees are important, certainly. In fact, the Geneva Conventions make clear that proper treatment of prisoners of war means that their photographs should not be disseminated in any way that could be seen as degrading or humiliating them. But in the case of the photographs being requested by Professor Attaran, it’s far from clear as to what privacy rights are being protected by withholding their disclosure. And for the government to invoke the rights of the detainees in an effort to shield itself from public accountability and scrutiny is nothing short of astounding. We can’t put it any better than Professor Attaran:

“The same government that says those detainees have no rights under the Charter of Rights and Freedoms now embraces the idea that detainees have rights under the Privacy Act,” he explained. “The government’s position is that these persons have privacy rights but no constitutional right to avoid torture.”

And indeed, legal experts are already suggesting that by extending the jurisdiction of the Privacy Act to Afghan detainees, the government may be (inadvertently?) setting the stage for an argument that the protections of the Charter — our most basic law — should be likewise available.

This isn’t the first time we’ve heard the government invoke the Privacy Act and the need to protect detainees’ privacy rights, at the expense of ensuring accountability for violations of fundamental human rights. During the course of the Afghan Public Interest Hearings at the MPCC, the government made the argument that members of the military police didn’t have any reason to launch an investigation into whether detainees were being transferred to torture and abuse because they had no reason to suspect that detainees were being tortured, or that Canadian commanders disregarded the risk of torture. The subjects of the MPCC complaint largely claimed that they weren’t aware of first-hand accounts of torture and abuse, notwithstanding the fact that some of these reports were documented by Canadian diplomats and provided to Canadian military commanders. Furthermore, it was argued, members of the military police could not have reasonably been expected to know or access information relating to detainee abuse and torture because it would violate the detainees’ privacy rights.

And so (again): in the name of protecting detainee privacy, government shuts the door to any scrutiny of its conduct, to any attempts at discerning what has happened to the men and children our troops have delivered to the Afghan government, and to any true accountability to the Canadian public.

(1) h/t Lewis Carroll.