CHRISTOPHER GULY OTTAWA
The federal government needs
to clarify exactly how it uses
intelligence gathered through
torture and for what purpose,
says international criminal lawyer Robin Parker.
Commenting on recent media
reports that indicated a change in
government policy to allow, in
“exceptional circumstances,” the
use of intelligence gained through
torture, Parker, a former Crown
attorney who prosecuted the
2005 Abdullah Khadr extradition
case, said if the information ori-
ginates in a country where torture
is believed to be used, it has to be
passed along with a “big caveat.”
Parker said that, while Can-
adian security officials cannot
ignore information possibly
derived from waterboarding or
other means of torture, that infor-
mation also has to be corrobor-
ated from a source without tor-
ture being involved in order to
have any legitimacy at all.
“The problem with evidence
obtained by torture is that it’s
incredibly unreliable,” says Parker,
who teaches international criminal law in Osgoode Hall’s professional master of laws program.
“If you look at accounts of
people who survived torture,
everyone, at some point, says any-
thing and even comes to believe
things that they were saying in
order to make it stop.”
Federal Public Safety Minister
Vic Toews’ Dec. 7, 2010, letter to
Richard Fadden, director of the
Canadian Security Intelligence
Service (CSIS) — a copy of which
was recently obtained by The
Canadian Press under the Access
to Information Act — states that
“in exceptional circumstances
when there exists a threat to
human life or public safety,
urgent operational imperatives
may require CSIS to discharge its
responsibility to share the most
complete information available
at the time with relevant author-
ities, including information
based on intelligence provided
by foreign agencies that may
have been derived from the use
of torture or mistreatment.”
The CSIS director or deputy
director of operations at the spy
agency makes the final decision,
“in accordance with Canada’s
legal obligations,” on whether to
investigate and analyze informa-
tion that may have been obtained
by methods condemned by the
federal government. As CP
reported, the minister is to be
notified “as appropriate” of a deci-
sion to use such information.
In 2009, then-public safety
minister Peter Van Loan said: “If
there’s any indication that torture
may have been used, that infor-
It’s always the same
problem on the torture
question: torture is
bad except when I
need the information
and hold my nose and
say OK, it’s useful.
Torture needs to be
denounced in every
possible way.
“
Levant
Parker
In a December 2010 letter, Federal Public Safety Minister Vic Toews said it is up to CSIS to analyze information obtained
through condemned methods, such as torture, ‘in accordance with Canada’s legal obligations.’
ADRIAN WYLD / THE CANADIAN PRESS
Robin Parker,
mation is discounted.”
Neither Toews’ office nor CSIS
responded to requests for com-
ment by The Lawyers Weekly.
Parker said that, whenever
CSIS receives information under
those circumstances, it has to
clearly state that it was obtained
through torture and is therefore
unreliable. CSIS operatives
posted abroad must be careful
not to become “dupes of
unscrupulous regimes” in receiving information and must convey
to the country involved in torture
that Canada considers the practice “reprehensible,” and use their
intelligence relationships there to
help improve human rights and
report on violations that may be
occurring in the region.
Parker says that if someone
has been tortured, “you’ve lost
the opportunity to get reliable
evidence from and prosecute
that person later.
“What if that person commit-
ted terrible crimes? Any use of
torture has fouled the entire
proceeding.”
Under Criminal Code section
269.1 ( 4), “any statement obtained
as a result of the commission of
an offence under this section [the
use of torture by an official] is
inadmissible in evidence…in any
proceedings over which Parlia-
ment has jurisdiction—except as
evidence that the statement was
so obtained.”
Parker says that it would be
“an affront to justice” for any
court or tribunal to receive evi-
dence obtained through torture.
“It’s the same reason why, in
criminal proceedings, we exclude
statements that are involuntary
either through threats, coercion
or promises made about drop-
ping charges. The Crown has to
prove beyond a reasonable doubt
that people’s statements are vol-
untary before we can rely on
them in our system.”
She explains that even if the
federal government were to
amend the Criminal Code and
remove the section, Canada, in
1985, signed the United Nations
Convention Against Torture and
Other Cruel, Inhuman or Degrad-
ing Treatment or Punishment.
The convention outlaws the use
of torture, and prohibits any
statements made under torture
from being admissible in a signa-
tory nation’s courts, “except
against a person accused of tor-
ture as evidence that the state-
ment was made.”
In late 2007, the UN commit-
tee against torture punctuated
the prohibition against torture
found in article 2 by rejecting
“absolutely any efforts by states to
justify torture and ill-treatment
as a means to protect public safety
or avert emergencies in these and
all other situations.”
While the government has
repeatedly stated that Canada
neither condones nor engages in
torture, it hasn’t backed down
from the essence of its Decem-
ber, 2010, directive to CSIS,
which also stated that, in “rare
circumstances, it is understood
that it may not always be pos-
sible to determine how a foreign
agency obtained the informa-
tion that may be relevant to
addressing a threat.”
“Ignoring such information
solely because of its source
would represent an unaccept-
able risk to public safety,” Toews
wrote, adding that he expects
and directs CSIS “to make the
protection of life and property
its overriding priority.”
On Feb. 8, Toews echoed Van
Loan’s previous comments when
he told the House of Commons
that “information obtained by
torture is always discounted.” The
following day in question period
he said that when the govern-
ment has information “that Can-
adian lives are at risk we will act
without delay.”
Lawyer and Sun News TV host
Ezra Levant says that in a “ticking
time-bomb scenario” when Can-
ada faces a “real imminent risk,”
the federal government should be
able to rely on intelligence,
regardless of methods.
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