Touching Torture with a Ten Foot Pole: The Legality of Canada’s Approach to National Security Information Sharing with Human Rights-Abusing States

(2014) 52(1) Osgoode Hall Law Journal 263

41 Pages Posted: 7 Feb 2014 Last revised: 25 Aug 2015

Craig Forcese

University of Ottawa - Common Law Section

Date Written: February 1, 2014

Abstract

In 2011, then-Public Safety Minister Vic Toews issued “ministerial directions” to Canada’s key security and intelligence agencies on “information sharing with foreign entities”. These directions permit information sharing in exigent circumstances, even “when doing so may give rise to a substantial risk of mistreatment of an individual”. The directions prompted a brief chorus of condemnation. They have since sunk into relative obscurity, remaining part of the Canada’s national security policy framework. And yet, in trying to walk the fine line between principle and realism in the administration of Canada’s approach to torture, they continue to raise pressing moral and legal questions.

This Article aims to reignite discussion of these policies and their controversial content, relying in large measure on documents obtained by this author directly or through journalistic researchers under access to information law. It examines dilemmas raised when information is shared between human rights-observing and abusing states and then focuses on the legal parameters and policy context in which both “in-bound” and “out-bound” information-sharing takes place. It then analyzes the 2011 instruments and considers their legality under both international and domestic law. The Article concludes that legality of the measures is doubtful in international law – at least in so far as “out-bound” information sharing is concerned – and domestic criminal culpability and constitutional validity are very close questions.

Keywords: torture, intelligence, intelligence-sharing, national security, Canada, international law, complicity, criminal law

JEL Classification: K39

Suggested Citation

Forcese, Craig, Touching Torture with a Ten Foot Pole: The Legality of Canada’s Approach to National Security Information Sharing with Human Rights-Abusing States (February 1, 2014). (2014) 52(1) Osgoode Hall Law Journal 263. Available at SSRN: https://ssrn.com/abstract=2391261

Craig Forcese (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

HOME PAGE: http://www.cforcese.ca

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