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.

 


Whispers and innuendo

Today, the BCCLA wrote to the Minister of Justice and the Minister of Public Safety about a recent government leak of purported intelligence information implicating two Canadians in a terrorist plot. The contents of the leak, the timing of it, and the government’s public statements in response to the whole affair all raise serious concerns, including whether the Canadian public can truly be informed via selective leaking of cherry-picked information.

In August, La Presse, a Montreal newspaper, published an article describing an alleged conspiracy between Adil Charkaoui and Abousfian Abdelrazik to place an explosive device on an aircraft. The alleged conspiracy was outlined in a document leaked to La Presse, which purported to be a 2004 report from CSIS summarizing conversation reportedly intercepted in 2000.

Messrs Charkaoui and Abdelrazik should be familiar to readers of these pages. Mr. Charkaoui spent six years living under a security certificate, during which time he was subjected to detention, house arrest, and constant surveillance. The security certificate against him eventually collapsed because the government refused to provide either him or the court with sufficient evidence to justify the certificate. Mr. Abdelrazik is a Canadian citizen who was arrested in Sudan at the request of the Canadian government, and whose efforts at returning home to Canada were repeatedly stymied by the government until a Federal Court declared that Canada was violating Mr. Abdelrazik’s constitutional rights. Neither man has ever been charged with any terrorism-related offences.

The allegations in the La Presse article were quickly seized upon and reported by the national media. And in response to these reports, Immigration Minister Jason Kenney stated:

I read the protected confidential dossiers on such individuals, and I can tell you that, without commenting on any one individual, some of this intelligence makes the hair stand up on the back of your neck. I just think people should be patient and thoughtful and give the government and its agencies the benefit of the doubt.

Thus, having failed (for years) to make out a case against either Mr. Charkaoui or Mr. Abdelrazik in the courts, government is now seizing on the selective leaking of decade-old intelligence information to make its case against these men in the media.

Our letter goes into considerable detail about our various and serious concerns, which we won’t repeat here, but we do make one point that bears re-emphasizing: Leaks of this sort — decontextualized and selective — do little by way of providing a complete and truthful account of events. Instead, selective disclosure only leads to concerns that the story is actually being manipulated.

Read the entirety of our letter here. We also commend you to some very thoughtful commentary on this leak. Professor Reg Whitaker provides an informative account of previous similar leaks in his analysis. Professor Craig Forcese thinks that this leak raises some interesting questions that the government should be asking.