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.

 


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.


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.


Anti-smuggling, or anti-Charter?

The Canadian Association of Refugee Lawyers (CARL) may be only a little over a month old, but they’ve already published a terrific paper on the unconstitutionality of Bill C-4, the so-called “anti-smuggling” bill.

Readers of these pages will know that C-4 (and its predecessor C-49) has been of significant concern to the BCCLA, and the subject of criticism from many quarters. CARL’s paper lays out in detail the various ways the proposed legislation in Bill C-4 is unconstitutional. It’s worth reading in its entirety, but here’s a teaser:

In presenting Bill C-4 to Parliament, the Government of Canada has expressed its confidence that the bill is Charter-compliant and constitutional. The Government has chosen not to articulate any basis for its confidence. Since recent judicial pronouncements from the Supreme Court of Canada directly contradict the Government’s position, it is our opinion that this confidence is misplaced. The drafters of the bill have paid insufficient attention to the carefully worded doctrines that the Supreme Court of Canada has developed to express the basic principles of our Constitution. The government has haphazardly cast an unconstitutionally harsh, wide and arbitrary net in order to deter and punish human smuggling. The consequences inflicted on these individuals will be dramatic, painful and undeserved. It is our hope that the unconstitutionality of the Bill will be recognized before it is enacted as law. If this hope is dashed, it is our hope that it will be recognized by judicial authorities. However, it is our worry that, should we need to rely on the Courts to provide the needed remedy, much hardship will be endured in the interim.

Download the paper here.


A hit, a very palpable hit

Good news from the Federal Court this morning. As those of you who have been following our work at the Military Police Complaints Commission (MPCC) may recall, the Department of Justice filed a series of applications for judicial review in the Federal Court  before the close of evidence in the Afghan Public Interest Hearings. These applications sought to limit the MPCC’s jurisdiction to make certain factual findings and recommendations, as well as its access to relevant documents. The BCCLA and Amnesty International opposed these applications, and the Federal Court agreed with us.

The applications

The DOJ’s first challenge was to one of a series of summonses issued by the MPCC to the government for production of documents related to the military police’s role in detainee handling and transfers. By way of background, the Afghan Public Interest Hearing has been repeatedly delayed and hampered by ongoing disputes over document production from the Department of Justice. Indeed, it was the DOJ’s delay and apparent recalcitrance in providing the Commission with necessary documents which led to the establishment of the public hearing, in the first place.

The summons at issue here was sent by the MPCC following the disclosure of certain documents to the BCCLA and Amnesty pursuant to an Access to Information Act request. These documents consisted primarily of communications between Canadian officers in Afghanistan and civilian officials in Canada concerning the decision to suspend detainee transfers in November 2007. None of these documents had been previously produced to the MPCC, despite their clear relevance to the MPCC’s investigation. A flurry of correspondence between the MPCC and the DOJ followed. The Federal Court’s recap:

The Commission counsel reviewed the documents and wrote to counsel for Attorney General on April 8, 2010. Commission counsel was of the view that the documents collected in response to the Access to Information request would also be relevant to the subject matter of the Commission’s inquiries, and found it “inconceivable” that these documents, many of which were addressed or copied to individuals who were summonsed as witnesses, could have been considered irrelevant to the matters under inquiry.

The Department of Justice and the MPCC exchanged further letters on the issue. In a letter dated April 9, 2010, counsel for the Attorney General indicated that the documents were not produced “because they were not communicated to any military police members, including the subjects of the complaint and there is no evidence that they were otherwise available to them”. In other words, the Attorney General takes the position that it is the government’s prerogative to determine whether the documents were shared with Military Police members or were “within their means of knowing”. In response, MPCC counsel strongly disagreed with the position and wrote: “We believe it is the Commission’s mandate to determine wehtehr or not there is evidence that documents were communicated to, or available to, Military Police members. This cannot be determined by government officials looking at the face of the documents and deciding not to produce them.” This is clearly the nub of the dispute between the Attorney General and the Commission.

(Internal citations omitted; emphasis added.)

Eventually, government witnesses were ordered to appear before the Commission to explain how documents were being reviewed and produced. Following their testimony, the MPCC issued a new summons, requiring the government to produce several additional categories of documents, including a category broad enough to capture the documents received by the BCCLA and Amnesty through its ATI request. The government challenged the summons in Federal Court.

The DOJ’s second application alleged that the MPCC refused to hear the DOJ’s motion seeking a ruling on “standards of conduct.”

In an earlier ruling, the Federal Court had held that the subjects of the Afghan Public Interest Hearing would only be responsible for information that was within their individual “means of knowing”. The Federal Court, however, did not provide any definition or further elaboration on the meaning of “means of knowing”. The DOJ brought a motion to the MPCC, asking that it provide a determination on how it would interpret “means of knowing”, arguing that the subjects would not otherwise be able to properly defend themselves if they didn’t know the standard to be met.

The MPCC concluded that establishing a firm definition of “means of knowing” was premature, given that such determinations are “inherently factual and contextual”. (A position that the BCCLA and Amnesty advanced and endorsed). Accordingly, evidence must be heard. Likewise, it was also premature to set out a conclusive “standard of conduct”, because that determination was also grounded in fact and context. The DOJ declined to seek a judicial review of these decisions, and the hearing proceeded.

A few months later — well after the MPCC had already started taking live testimony — the DOJ again brought a motion seeking a ruling on the “means of knowing” standard. The MPCC referred to its previous decision — that a ruling on the “means of knowing” standard was premature, and the issue would be decided after the close of the non-subject testimony. The DOJ sought judicial review of the MPCC’s decision. The hearings progressed, and the MPCC heard the DOJ’s motion the day after the last of the non-subject witnesses testified.

Shortly thereafter, the MPCC rendered its ruling on the “means of knowing” standard, prior to any of the subjects appearing as witnesses. Dissatisfied with the MPCC’s interpretation of “means of knowing” and its refusal to determine — before the close of evidence, and even before any of the subjects had testified — whether the subjects had a duty to investigate or seek out more information about post-transfer treatment of detainees, the DOJ applied to the Federal Court for a review of the MPCC’s ruling, bringing the number of pending judicial reviews to three.

The Federal Court’s ruling

The Federal Court agreed that it was premature to establish a “means of knowing” standard, and, like the MPCC, declined to come to any conclusion about the duty to investigate. It found that it was generally inappropriate for the Federal Court to intervene in the MPCC’s investigative procedure and decision-making prior to the conclusion of its work, and that the DOJ had not provided it with any reason to do so in this case.

With respect to the summons for document disclosure, the Federal Court remarked that “it is self-evident that document disclosure is fundamental to the ability of the Commission to discharge its mandate and conduct a full, independent investigation into the complaint.” Importantly, it also noted that

As the independent oversight body tasked by Parliament with carrying out a public inquiry into the complaint, it is the MPCC’s responsibility to make its own, independent decision as to what documents it considers necessary for a full investigation of the complaint. It should not have to rely on selected documents provided on the basis on an opaque screening process conducted in-house by government officials. … If the Commission does not have full access to relevant documents, which are the lifeblood of any inquiry, there cannot be a full and independent investigation.

(Emphasis added.) Accordingly, the Federal Court found that the MPCC did not overstep its jurisdiction in seeking additional documents from the government.

What this means

The MPCC’s mandate and the scope of its report will not be further narrowed.

Recall that the jurisdiction of the MPCC itself is already exceedingly limited — it can only really examine the conduct of the military police branch of the Canadian Forces. And following the government’s first challenge to the MPCC’s jurisdiction to the hold the Afghan Public Interest Hearings, the scope of the MPCC’s review was limited to the question of whether the named subjects had failed in a duty to investigate potential misconduct related to the transfer of detainees to Afghan custody. If the government had succeeded in its applications, there was the possibility that the MPCC’s jurisdiction in this case would be even further circumscribed.

So, a small procedural victory, but an important and welcome one.


No complicity in torture

Today, the BCCLA sent a letter to Minister of Justice Robert Nicholson, urging him to ensure that Canadian citizens are protected against foreign prosecutions relying on evidence derived from torture. The issue arises in the context of the ongoing attempts to extradite Hassan Diab for trial in France.

As readers of this blog 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 the prominent role unsourced intelligence played in the Republic of France’s original Record of the Case submitted to support its extradition request, and the role that unsourced intelligence is likely to play at his trial in France.

In June of this year, a court in Ontario issued a commital order for Mr. Diab’s extradition, which is the legal mechanism permitting the government to surrender Mr. Diab to the French authorities. But the ultimate decision to surrender Mr. Diab falls on the Minister of Justice, who must decide whether it is appropriate to send Mr. Diab to face trial before a French court. In its letter to the Minister of Justice, the BCCLA sets out the reasons why surrender would be inappropriate in this case.

Chief among our concerns is the documented use of evidence derived from torture in French terrorism proceedings. Human rights organizations and international experts have reported on France’s willingness to use intelligence information coming from international partners well-known to routinely engage in torture. To date, France has not confirmed that the unsourced intelligence being offered against Mr. Diab was obtained by means other than torture.

The BCCLA has long maintained that evidence derived from torture has no place in judicial proceedings. Canadian and international law are clear on this point. In our letter, we called on the Minister to refuse Mr. Diab’s surrender altogether, as that would be the best guarantee that he would not be extradited to face an unfair trial. In the case that the Minister does decide to surrender Mr. Diab, we called on him to seek and obtain meaningful assurances from France that no evidence derived from torture would be used in the case against Mr. Diab.

Meaningful assurances, in this case, would mean that France must commit to providing adequate procedural safeguards to ensure that no intelligence information used in the case against Mr. Diab was derived from torture, or else commit to excluding all unsourced intelligence from Mr. Diab’s prosecution entirely. Getting these assurances is the only way that Canada can maintain its committment to the elimination of torture, wherever it may take place.