Information-sharing rules defended
Ottawa can't rule out sending intelligence to regimes that torture, lawyer tells inquiry
January 09, 2008

Ottawa Bureau

OTTAWA–The Canadian government does not rule out sharing intelligence information with countries that practise torture in cases where it might prevent an act of terrorism, a federal lawyer suggested to an inquiry yesterday.

While Canada does not practise or condone torture, said lawyer Michael Peirce, the government also does not believe that the international Convention Against Torture is a legal impediment to sharing information with those countries that do.

The admission comes more than a year after a separate inquiry into the Maher Arar scandal called for a review and rewriting of "inadequate" policies on the sharing of information with countries with questionable human rights records.

Peirce said in each case where Canadian agents consider the need to share or seek information from other countries, there must be a "weighing" of many factors, including the risk to individual detainees, the risk to public safety in Canada or other allied countries, and the "imminence" of any threat to national security.

He argued Canada has legal and moral obligations to share information, and international prohibitions such as those in the United Nations convention against torture do not automatically "trump" the need to share intelligence in cases of national security.

In late 2007, in recommendations that the federal government claimed to accept in their entirety, Justice Dennis O'Connor cited the same convention, and said he had "serious reservations" about the RCMP's practices of sharing of information.

He recommended Canadian policies be brought in line with the UN convention against torture.

The CSIS Act, Peirce said, allows information to be shared where it is "strictly necessary" to national security, and in the RCMP's case, the practice is guided by ministerial directives and policies that call for many factors to be weighed.

The government admitted it does not apply a consistent practical standard – such as "necessity," "reasonableness" or "prudence" – to such judgment calls.

Peirce was testifying at the inquiry, headed by former Supreme Court Justice Frank Iacobucci, into the cases of three Muslim Canadian men who say they, like Arar, were tortured in Syria after Canada provided information to Syrian military interrogators.

"I can understand the incentives for the sharing of information, the legal obligation or the diplomatic obligations as you put it, but what are the brakes on that?" Iacobucci asked Peirce. "Is Canada's obligation to share information an absolute one? Is it a discretionary one? If it is discretionary, what are the kinds of circumstances or conditions pursuant to which that discretion should be exercised? Because if you pose the issue as a fight between terrorism and human rights, I'm not – is that the right balancing? We know that terrorism is bad, of course. But we're talking about what is our democracy's response to terrorism ... that's behind my question here."

Peirce acknowledged Canada's obligation to share is "not absolute."

He insisted the Canadian government generally does consider the human rights records of countries it deals with on an "ongoing" basis, even if it does not conduct an investigation each time as to how information shared is used.

But Iacobucci repeatedly questioned Peirce on the lack of clear standards governing when and what kind of information Canadian security and law enforcement agencies pass along.

The exchanges came during a rare public hearing during this inquiry. Until now, Iacobucci has conducted a secretive inquiry into what actions Canadian officials took that might have led to or extended the detention and mistreatment of the three men between 2001 and 2004.

Abdullah Almalki, Muayyed Nureddin and Ahmad El-Maati all live in Canada now, and none was ever charged with a criminal offen ce. Lawyers for the three argued yesterday that the prohibition against torture is an international legal norm that overrides all else, and that Canada should never have shared information with Syria and Egypt – let alone provided questions for his interrogators in the case of El-Maati.

The hearing continues today.