A lawyer who represented torture victim Maher Arar says information-sharing directives issued to federal security agencies show the government hasn’t learned anything about shunning brutality.
Ministerial instructions to the Canadian Security Intelligence Service, RCMP and Canada Border Services Agency leave the door open to the kind of information exchanges that led to Mr. Arar’s torture in Syria a decade ago, says Toronto lawyer Lorne Waldman.
“It’s extremely disappointing that after all of these years, and after all of the effort, we’re not any further ahead than we were,” Mr. Waldman said in an interview.
Mr. Arar, a Syrian-born Canadian, was detained at a New York airport in September 2002, winding up in a grim Damascus prison. Under torture, he falsely confessed to Syrian military intelligence officers about being involved with al-Qaida.
Justice Dennis O’Connor, who led a federal inquiry into the case, concluded that faulty information the RCMP passed to the United States very likely led to the Ottawa telecommunications engineer’s year-long nightmare. Mr. O’Connor recommended in September 2006 that information never be provided to a foreign country where there is a credible risk that it will cause or contribute to the use of torture.
The 2011 government directives to CSIS, the RCMP and the border agency — released under the Access to Information Act — outline instructions for deciding whether to share information when there is a “substantial risk” that doing so might result in someone in custody being abused.
They also state that protection of life and property are the primary considerations when deciding on the use of information that may have been extracted through torture.
“I think that there’s been no change since Arar,” said Mr. Waldman, who represented Mr. Arar at the O’Connor inquiry. “There is no more sensitivity today than there was back in 2004 and 2005 to the whole question of the use of evidence under torture.
“I see immigration proceedings where CBSA routinely adduces evidence from regimes that engage in torture without ever questioning the fact that the evidence they’re obtaining comes from such a regime, without expressing any concerns about the reliability,” Mr. Waldman said.
“And I’ve been successful in some cases in getting the evidence thrown out because of concerns about the reliability of the evidence obtained, because they come from regimes that don’t respect human rights and the rule of law.”
Public Safety Minister Vic Toews says Canada does not condone torture nor engage in it, calling the practice fundamentally abhorrent and contrary to Canada’s reputation as a protector of human rights.
However, he says the government also does not abide “dithering” when it comes to choices about using information in the face of threats to Canadian lives.
Human rights organizations and opposition MPs have denounced the directives as a contravention of Canada’s obligations under international law prohibiting torture.
Once Canada determines that information has been extracted from torture, or that using it would result in mistreatment, “then there shouldn’t be any further steps,” said Carmen Cheung, senior counsel at the British Columbia Civil Liberties Association.
“They simply shouldn’t be using it or sharing it.”
The government directives are based on a framework document that indicates the information sharing principles apply to all federal agencies.
“The objective is to establish a coherent and consistent approach across the government of Canada in deciding whether or not to send information to, or solicit information from, a foreign entity when doing so may give rise to substantial risk of mistreatment of an individual,” says the four-page framework.
Public Safety spokeswoman Jessica Slack refused to say when the framework document was drafted or by what division of her agency, even though the previously secret record is now declassified.
The document says that given the different mandates of various departments and agencies, “the framework will be operationalized through individual ministerial directions.”
However, key federal agencies that share sensitive information with other countries were silent about any actions they’ve taken.
Foreign Affairs spokeswoman Claude Rochon refused to say whether minister John Baird had issued a directive in the last year on information sharing with foreign agencies. Mr. Baird’s office also declined to answer the same question.
National Defence spokesman Daniel Blouin also would not comment on whether Defence Minister Peter MacKay had issued such a directive. Aside from responsibility for Canada’s military, the defence minister oversees the Communications Security Establishment, which spies on foreign governments, organizations and individuals, and exchanges information with partners abroad.
Raymond Rivet, a spokesman for the Privy Council Office, the agency responsible for co-ordination of security and intelligence activities, would not discuss which — if any — federal agencies had issued directives on information sharing.
Human rights and civil liberties organizations say the government has been forthcoming enough about the directive process.
“We need clarity and transparency from the government on that front, not piecemeal responses and secrecy,” said Alex Neve, secretary general of Amnesty International Canada.