OTTAWA — The federal government has given Canada’s spy service the go-ahead to provide information to foreign agencies even when there is a “substantial risk” it will lead to torture, a newly released document shows.
Public Safety Minister Vic Toews outlines instructions for sharing information in such cases in a four-page directive to Canadian Security Intelligence Service director Dick Fadden.
A copy of the July 2011 document — secret until now — was released to The Canadian Press under the Access to Information Act.
The directive is squarely at odds with Canada’s international commitments against torture — which have no loopholes, said Alex Neve, secretary general of Amnesty International Canada.
“There’s no ifs, ands or buts to that — there’s no qualifications,” he said. “This is one of the clearest areas of international law.”
Interim Liberal Leader Bob Rae said the federal policy is “unprecedented in our history.”
“It, I think, reflects a complete breach of our international obligations with respect to torture,” he said at a Friday news conference. “And I think it shows a government which has simply lost its way in terms of Canadian values.
“This is not how we do business in Canada.”
The directive comes to light just weeks after disclosure of an earlier ministerial order telling CSIS to use information that may have been extracted through torture in cases where public safety is at stake.
That release touched off a heated public debate about whether Canada was tacitly encouraging brutal tactics by foreign jailers.
The latest directive essentially incorporates that December 2010 order and provides newly crafted guidance on information sharing — including the provision of material to foreign government agencies, militaries and international organizations.
It says 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.
It adds that “terrorism is the top national security priority” of the government and it is essential that CSIS maintain strong relationships with foreign entities and share information with them on both a routine and urgent basis.
The directive says that in most cases CSIS is responsible for establishing internal approval rules “proportionate to the risks” in sharing information with foreign agencies.
It also lays 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 CSIS director 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 CSIS chief will consider points 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;
— the views of Foreign Affairs and other agencies.
The directive says the CSIS director can refer the decision to the Public Safety minister, who may give the green light to share the information only after considering the directive and Canada’s legal obligations.
During question period Friday in the House of Commons, NDP public safety critic Jasbir Sandhu said the issue is a “matter of right and wrong.”
“The message this government is sending is, that while Canada doesn’t employ torture, it is OK to help others to do so.”
Conservative MP Candice Hoeppner, parliamentary secretary to Toews, said the directive was “in line” with Canada’s condemnation of torture.
“CSIS will only share information in accordance with Canada’s legal obligations.”
Neve said the directive’s guidance on whether to pass along information “clearly leaves open the very real possibility that the decision taken will be, ’Do it,’ even though there’s a substantial risk.”
“That’s just wholly and entirely inconsistent with the assertion that these decisions are going to be in accordance with our legal obligations.”
The Public Safety Department said the government strongly opposes the mistreatment of any individual by any foreign agency for any purpose.
“At the same time, we must ensure that public is protected from those who would do harm,” the department said in an emailed response.
“The 2011 ministerial direction provides comprehensive guidance to CSIS on sharing information in order to safeguard national security while at all times promoting and upholding the values Canada seeks to protect.”
A federal inquiry by Justice Dennis O’Connor into the Maher Arar torture affair recommended in 2006 that federal policies include specific directions “aimed at eliminating any possible Canadian complicity in torture.”
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 Damascus prison. Under torture, he gave false confessions to Syrian military intelligence officers about involvement with al-Qaida.
O’Connor concluded that inaccurate information the RCMP passed to the United States very likely led to the Ottawa engineer’s year-long nightmare.
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 Almalki, Canadian officials provided questions to Syrian military intelligence.