New directives limit, but don’t fully outlaw, use of torture-tainted information

OTTAWA — New federal directives limit — but don’t totally forbid — Canada’s national police, spy and border agencies from using information that was likely extracted through overseas torture.

It means the RCMP, Canadian Security Intelligence Service and Canada Border Services Agency could use torture-tainted information with the aim of stopping a terrorist attack.

However, the three Canadian agencies cannot disclose information to — or request it from — a foreign agency, such as a police or intelligence service, when doing so creates a serious risk of someone being abused.

For example, Maher Arar, a Syrian-born Canadian, was detained in New York in September 2002 and shipped abroad by U.S. authorities — ending up in a dungeon-like Damascus prison. Under torture, he gave false confessions about involvement with al-Qaida.

A federal commission of inquiry, led by Justice Dennis O’Connor, concluded that flawed information the RCMP handed to the Americans after the 9/11 attacks very likely led to the Ottawa man’s year-long nightmare.

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O’Connor had recommended that information never be provided to a foreign country where there is a credible risk it will cause or contribute to the use of torture.

The directives issued Monday partially reverse instructions from the previous Conservative government that did allow international exchanges even when there was a real risk of torture. 

Several human rights groups and the federal NDP had called on the Liberals to repeal those, saying they effectively condoned torture and flouted Canada’s international obligations. They argue that torture victims will say anything to stop the pain, making their information unreliable.

The new versions forbid the three federal agencies from disclosing or requesting information when doing so would result in a “substantial risk” of torture that could not be managed through assurances from a foreign government.

They also prohibit use of information likely obtained through abuse in any way that creates a risk of further mistreatment, as evidence in a court proceeding, or to prevent risks to property such as a building.

However, the directives leave the door open to using information gleaned through torture “to prevent loss of life or significant personal injury.”

In such cases, the information must be accurately described and characterized, and it must be clear that it is being used solely to try to prevent an attack.

NDP public safety critic Matthew Dube said the new instructions amount to only “a semantic change,” since they permit “use of information obtained under torture in certain instances with a very low threshold of accountability.”  

“This does nothing to ensure public safety because information obtained through torture is unreliable.”

Amnesty International Canada called the directives “a significant improvement” on the previous ones. “However, loopholes and lack of clarity in some areas may still leave the door open to complicity in abuses and the tacit promotion of torture at the hands of foreign officials.”

Relying on information obtained through mistreatment threatens to encourage further abuse by creating a “market” for such material, said Alex Neve, Amnesty Canada’s secretary general.

“Using any torture-tainted information almost certainly encourages torturers to continue with their crimes, knowing there are intelligence agencies and others ready and willing to receive and use it.” 

Neve also expressed concern about Canada seeking “assurances” from a foreign agency to address a substantial risk of torture when sharing or requesting intelligence.

“Promises not to torture from those who already break clear international and national laws by torturing in the first place are virtually worthless,” Neve said. “Assurances received in these circumstances should not give a green light for Canadian officials to collaborate with likely torturers.”

— Follow @JimBronskill on Twitter

Jim Bronskill, The Canadian Press