The Conservative government has quietly given Canada’s national police force and the federal border agency the authority to use and share information that was likely extracted through torture.
Newly disclosed records show Public Safety Minister Vic Toews issued the directives to the RCMP and the Canada Border Services Agency shortly after giving similar orders to Canada’s spy service.
The government directives state that protection of life and property are the chief considerations when deciding on the use of information that may have been derived from torture.
They also 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.
As key members of Canada’s security apparatus, both the RCMP and border services agency have frequent and extensive dealings with foreign counterparts.
The directives are almost identical to one Mr. Toews sent last summer to the Canadian Security Intelligence Service — instructions that were roundly criticized by human rights advocates and opposition MPs as a violation of Canada’s international obligations to prevent the brutalization of prisoners.
Each of the directives is based on a framework document — classified secret until now — 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.
Copies of the overarching principles and the Sept. 9, 2011, directives to the RCMP and border services agency were released to The Canadian Press under the Access to Information Act.
They emerge almost six years after a federal commission of inquiry into the case of Ottawa telecommunications engineer Maher Arar recommended 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.
Mr. Arar, a Syrian-born Canadian, was detained in New York in September 2002 and deported soon after by U.S. authorities — winding up in a vile Damascus prison cell. Under torture, he gave false confessions to Syrian military intelligence officers about involvement with al-Qaida.
Justice Dennis O’Connor concluded that faulty information the RCMP passed to the United States very likely led to the Ottawa engineer’s year-long ordeal.
A subsequent inquiry headed by former Supreme Court judge Frank Iacobucci into the imprisonment of three other Arab-Canadian men during the same post-9-11 period found Canadian officials had a hand in the torture of Abdullah Almalki, Ahmad El Maati and Muayyed Nureddin in Syria through the sharing of information with foreign intelligence and police agencies.
In the case of Mr. Almalki, Canadian officials provided questions to Syrian military intelligence.
False confessions Mr. El Maati made under torture — including a fictitious plan to attack the Parliament buildings — were used to obtain search warrants in Canada.
As with the directive to CSIS, the instructions from Mr. Toews to the RCMP and the border agency apply to information sharing with foreign government agencies, militaries and international organizations.
They say Canada “does not condone the use of torture” and is party to international agreements that prohibit torture and other forms of cruel, inhuman, or degrading treatment or punishment.
The directives add that “terrorism is the top national security priority” of the government and it is essential that the RCMP and border agency maintain strong relationships with foreign entities and share information with them, as well as with domestic agencies.
They say that in “exceptional circumstances” the RCMP or border agency “may need to share the most complete information in its possession,” including information foreign agencies likely obtained through torture, “in order to mitigate a serious risk of loss of life, injury, or substantial damage or destruction of property before it materializes.”
“In such rare circumstances, ignoring such information solely because of its source would represent an unacceptable risk to public safety.”
The directives say that in most cases the Canadian organizations are responsible for establishing internal approval processes that are “proportionate to the risks” in sharing information with foreign agencies.
They also spell out procedures for information sharing when the risk of torture is “substantial” — meaning a “personal, present and foreseeable risk” based on something more than “mere theory or speculation.”
The decision must be referred to the RCMP commissioner or the border services agency president when there is a substantial risk that sending information to, or soliciting information from, a foreign agency would cause harm to someone — and it is unclear whether the risk can be managed by seeking assurances that the material won’t be misused.
In deciding what to do, the agency head will consider factors including:
— The importance to Canada’s security of sharing the information
— The status of Canada’s relationship with — and the human rights record of — the foreign agency
— The rationale for believing that sharing the information would lead to torture
— The proposed measures to lessen the risk, and the likelihood they will be successful — for instance, the agency’s track record in complying with past assurances and the ability of its officials to make good on them
— The views of Foreign Affairs and other agencies
The directives say the RCMP commissioner or border services agency president can refer the decision to the public safety minister, who may give the green light to share the information only in accordance with the directive and Canada’s legal obligations.
Alex Neve, secretary general of Amnesty International Canada, wrote to Mr. Toews in March calling for the withdrawal of the directive to CSIS. He has not received a reply.
“Instead, what we’re seeing here is a deepening and widening of the practice,” he said Friday. “This is of grave concern to us.”
Mr. Neve said the directive preambles noting Canada’s opposition to torture are “meaningless,” given the ultimate permission to use tainted information in some cases.
“The international law here is unequivocal,” he said. “When we’re talking about torture, there are no circumstances, no situation that ever justify it.”
The Public Safety Department had no immediate comment as to why the framework and directives to the RCMP and border agency were not made public until now.
In response to Mr. O’Connor’s September 2006 recommendations, both CSIS and the RCMP took steps to tighten information-sharing practices with the aim of preventing future abuses.
Critics say the latest slate of directives to agencies involved in national security run contrary to Mr. O’Connor’s advice.
In a followup report on national security oversight, issued in December 2006, Mr. O’Connor called for an overhaul of the RCMP complaints commission that would give it new powers to keep an eye on the Mounties’ intelligence activities.
The judge suggested the revamped watchdog also be given authority to review the national security activities of the border services agency.
In addition, Mr. O’Connor recommended the Security Intelligence Review Committee, the watchdog over spy agency CSIS, be given additional authority to monitor the security operations of Citizenship and Immigration, Transport Canada, Foreign Affairs, and FinTRAC, the national anti-money laundering body.
The Conservatives have introduced legislation to revamp the RCMP complaints watchdog but have not addressed the broader issue of inter-agency review.