The federal government has directed Canada’s spy agency to use information that may have been extracted through torture in cases where public safety is at stake.
The order represents a reversal of policy for the Conservative government, which once insisted the Canadian Security Intelligence Service would discard information if there was any inkling it might be tainted.
Public Safety Minister Vic Toews has quietly told CSIS the government now expects the spy service to “make the protection of life and property its overriding priority.”
A copy of the two-page December 2010 directive was obtained by The Canadian Press under the Access to Information Act.
It drew swift condemnation from Amnesty International Canada, which said information obtained under torture “has no place in the justice system, full stop.”
Bob Rae, the interim Liberal leader, also expressed concern, saying the minister is not above the law.
“The law in Canada has been pretty clear that information based on torture, first of all, is not reliable and, second of all, is not permissible.”
The directive from Mr. Toews expands upon a May 2009 ministerial order that states CSIS must not knowingly rely upon information derived from torture, and have measures in place to identify such tainted information.
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.”
The directive says the final decision to investigate and analyze information that may have been obtained by methods condemned by the Canadian government falls to the CSIS director or his deputy director for operations – a decision to be made “in accordance with Canada’s legal obligations.”
Finally, it says the minister is to be notified “as appropriate” of a decision to use such information.
In spring 2009, a senior CSIS official ignited controversy when he told a Commons committee the spy service would overlook the origin of information if it could prevent another Air India jetliner bombing or a terrorist attack along the lines of the Sept. 11, 2001, hijackings in the United States.
The government quickly moved to extinguish the public flareup.
Peter Van Loan, then public safety minister, said CSIS had been clear about rejecting information extracted through coercion.
“As a practical matter, they get intelligence from all kinds of sources, a myriad of sources. An important part of their process is to try and identify how credible that is,” Mr. Van Loan said at the time.
“If there’s any indication, any evidence that torture may have been used, that information is discounted.”
Neither the Public Safety Department nor the minister would agree to an interview Monday.
In an emailed statement, the department said the 2010 directive “provides greater clarity to CSIS” and that “all CSIS activities, including sharing information with foreign agencies, comply with Canada’s laws and legal obligations.”
Added Mike Patton, a spokesman for Mr. Toews: “Our government will always take action that protects the lives of Canadians.”
Canadian law enforcement and security agencies should focus on getting rid of information that bears the taint of torture, not on carving out exceptions for when it can be used, said 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. “Firmly rebuffing torturers when they offer up information extracted through pain and suffering is a critical plank in the wider campaign to eradicate torture once and for all.”
CSIS spokeswoman Tahera Mufti had no comment.
However, the spy agency has said previously – including before the 2010 directive was issued – that it would use torture-tainted material.
Canadians would not forgive the intelligence service if it completely ignored information that could have been used to investigate and prevent a terrorist attack because that tip came from a country with a suspect human rights reputation, CSIS said in 2010 briefing notes.
In addition to sharing such information with Canadian police, CSIS would pass it to relevant foreign agencies after taking steps to ensure it would be used appropriately, the notes said.
A federal inquiry by Justice Dennis O’Connor into the Maher Arar torture affair recommended in 2006 that policies include specific directions “aimed at eliminating any possible Canadian complicity in torture, avoiding the risk of other human rights abuses and ensuring accountability.”
Mr. Arar, a Syrian-born Canadian, was jailed in Damascus in 2002-03 and tortured into giving false confessions about terrorist links.
CSIS maintains it has implemented all of Justice O’Connor’s recommendations to prevent a recurrence.
Recently it became public that former CSIS director Jim Judd balked in 2008 at a proposed legislative change that would have prevented the spy agency from using information suspected of emerging through torture.
Mr. Judd said the change could spell the end of the security certificate – an immigration tool for deporting alleged foreign-born terrorists.
“It is very difficult, if not impossible, for the service to confirm whether information is derived from mistreatment or torture,” he wrote.