Opinion: Ottawa bans using info from torture

Agencies will be restricted in how they use intelligence received from foreign entities

The federal government has issued new regulations to Canada’s security agencies to restrict the use of intelligence possibly obtained through mistreatment or torture – unless the information is needed to prevent the loss of life.

Public Safety Minister Ralph Goodale on Monday issued directives to the Royal Canadian Mounted Police, the Canadian Security Intelligence Service and the Canada Border Services Agency.

The ministerial directives replace those issued in 2011 by the previous Conservative government and are meant to “more clearly prohibit the disclosure or requesting of information that would result in a substantial risk of mistreatment,” according to the public safety department.

That passing of information was behind the nightmare endured by Canadian Maher Arar. A public inquiry concluded that erroneous information passed by the RCMP led the Americans to deport Arar, eventually to Syria where he was tortured and held for about a year.

The new regulations bar each of the agencies from disclosing information that would result in a “substantial” risk of mistreatment of an individual by a foreign entity.

As well, they are prevented from asking for information that would put a person at risk of mistreatment.

Finally, the agencies are restricted in how they can use any intelligence that was likely obtained through mistreatment of an individual by a foreign entity.

The new rules are meant to “guard against any complicity in mistreatment,” a department official told reporters during a background briefing.

Yet there is not a blanket prohibition on the use of information where torture or mistreatment is suspected. The new directives do allow the use of such intelligence “when necessary to prevent loss of life or significant personal injury.”

Such cases would require high-level approval within the security agencies and will be flagged to the minister as well as the proposed oversight body comprised of MPs.

The government refused Monday to say how often it may have used intelligence obtained through torture and mistreatment, saying only that “officials are sometimes required to interact with foreign entities that may engage in those practices that are contrary to our values and principles.”

“The ministerial directions are provided exactly to bring more clarity to the decision-making process,” the official told reporters.

Security expert Stephanie Carvin said the new rules acknowledge the reality that confronts security agencies today.

“We are an intelligence-consuming nation. Canada is heavily reliant on intelligence-sharing partnerships. You have to strike a balance that is also realistic,” said Carvin, an assistant professor of international relations at the Norman Paterson School of International Affairs at Carleton University.

“I wish we lived in a world where you could just cut yourself off from everyone who was bad but you can’t,” she said in an interview.

She said the challenge for security agencies will be sorting out which information may have been derived through mistreatment or torture. Given the prison conditions in some developing countries, just being detained might count as mistreatment and abuse, she said.

“Those kinds of cases still aren’t clear,” Carvin said.

She did say the directives introduce some openness and political oversight. “We really don’t have a window into how often this is done … I think this goes a long way to creating some transparency.”

Amnesty International said the new rules are a “significant improvement,” but criticized the government for still allowing the possibility that intelligence obtained by torture could be used by security agencies.

The human rights organization said that “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.”

“Promises not to torture from those who already break clear international and national laws by torturing in the first place are virtually worthless,” Alex Neve, secretary general of Amnesty International Canada, said in a statement.

Bruce Campion-Smith is a national affairs writer.

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