Information sharing and torture policies and approaches since 2011
3. The 2011 Directions
[Adopted from Craig Forcese, "Touching Torture with a 10-foot pole"]
The policies governing CSIS (and RCMP and now Canada Border Services Agency) information-sharing have evolved since 2010, in a manner that seems to acknowledge more overtly a willingness to share information in exigent circumstances, even at the risk of torture.
On December 7, 2010, then-minister of public safety Toews wrote a letter to then-CSIS director Richard Fadden. In that letter, he observed “the number one national security priority of the Government of Canada has been, and will remain for the foreseeable future, the fight against terrorism. In this context, it is critical that information be shared quickly and widely among those with the mandate and responsibility to disrupt serious threats before they materialize.” [Letter to CSIS Director Richard Fadden from Minister Toews, Dec 7, 2010]. The minister characterized his letter as further guidance on the May 2009 ministerial directive, reiterated his expectation that CSIS must “always ensure that its actions do not appear to condone the torture or mistreatment of any individual, and that its interactions with foreign agencies accord with this principle” and then added a new admonishment:
“In exceptional circumstances where 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 authorities, including information based on intelligence provided by foreign agencies that may have been derived from the use of torture or mistreatment. In such rare circumstances, it is understood that it may not always be possible to determine how a foreign agency obtained the information that may be relevant to addressing a threat. It is also understood that ignoring such information solely because of its source would represent an unacceptable risk to public safely.”
The document was an evident partial re-think of torture and in-bound (but not out-bound) intelligence sharing. The letter also promised a new directive on the topic, then under development.
Subsequently, the promised ministerial directive, issued in July 2011, provided a new “guidance document” for CSIS. The minister subsequently issued essentially identical directions to the RCMP and the CBSA. The new directives are an expression of what appears to be a whole-of-government “framework” for “addressing risks of mistreatment in sharing information with foreign entities.”
The framework understanding also informed ministerial directions issued by then-Minister of National Defence Peter MacKay to the Communications Security Establishment.
B. Performance Under the Directions
[Adopted from Craig Forcese and Kent Roach, False Security (2015), ch 5)
Exactly how these directions are being used is not entirely clear — there has certainly been no public reporting on the issue. Documents released under access to information law provide, however, some hints.
As detailed here: In 2013–14, the RCMP considered sharing information under the ministerial direction in five cases. In every single instance, the information at issue contained an element of outbound sharing. In each case, the RCMP internal approval process denied information sharing permission. The RCMP, of course, is aware of its difficult history in the Arar case. It is also acutely aware that its practices will usually culminate in an open court criminal process, during which its investigative tactics will be exposed and subject to close scrutiny. This prospect exercises a discipline on the RCMP that is not nearly as acute for CSIS.
CSIS reportedly relied on the 2011 information sharing ministerial direction ten times by 2014. In one case, the matter fell outside the supervising CSIS committee’s jurisdiction. One case was referred to the CSIS director for his consideration because of the risk of maltreatment, but the need to share information was superseded by events. The Committee issued permission to share in six cases. In two of these instances, the information was shared on condition that proper assurances against mistreatment were obtained from the recipient. In the four other cases, the committee authorized the information sharing because it was “unlikely that mistreatment had occurred” or because it concluded that “sending the information would not cause a substantial risk of mistreatment.” These six instances involved four cases of outbound sharing and two of inbound sharing. The committee denied only two of the 10 requests, and in both denials the use of inbound information in a Federal Court proceeding was at issue. This pattern is consistent with a particular wariness when there is the prospect that a court will assess doubtful information sharing, illustrated also by the RCMP practice.
We know nothing about the particulars of the circumstances in which CSIS did share information and cannot evaluate the merits of the CSIS decisions. This is unfortunate because how the directions are used is material to the question of their legality — and there is reason to question whether full use of these directions would be compliant with the Canadian Charter of Rights and Freedoms and Canada’s international obligations. For instance, use of the directions to justify outbound information sharing with knowledge of the likelihood of torture may give rise to international criminal culpability and impose an obligation on Canada to prosecute those officials who are sharing the information.
There is also an obvious Charter issue raised by the directions. For instance, certain use of the directions to authorize outbound information sharing could violate the section 7 guarantee of fundamental justice whenever life, liberty, or security of the person is jeopardized. But this is not a sure thing — much will depend on the facts in individual cases. And those facts will be hard to come by. It is not likely that the government will willingly release the details of its practice in specific cases. In the result, a challenge to the policy may require a frank challenge to the directions themselves without evidence of their use, something that would make the applicant’s case more difficult. As a Canadian Bar Association resolution protesting the CSIS direction noted, “decisions to share information pursuant to the Direction tend to elude judicial review and public oversight due to the circumstances in which they are made.”
At some level, that is perhaps the most pernicious aspect of a policy articulated, not in legislation with reporting obligations, but in the form of executive fiat. Put simply, the public will not know what the state is doing unless and until a scandal like that which engulfed Maher Arar arises.
Until then, we depend on executive good faith and the operations of accountability bodies with limited resources and capacities, like the Security Intelligence Review Committee. Indeed, in its 2016 annual report, SIRC noted the outcome of its first review of information sharing by CSIS under the 2011 directives. Its assessment was generally favourable, but it also noted some weaknesses in CSIS’s approach.
But notably, SIRC cannot police the conduct of entities outside its narrow mandate over CSIS. The Security Intelligence Review Committee started to examine the Arar case but was unable to follow the thread that lead from CSIS not only to the RCMP but from the RCMP to customs officials and from Canadian agencies to foreign officials and back to CSIS and the RCMP. A public inquiry was necessary to run all the threads down, but a public inquiry of course depends on a scandal forcing the government to appoint one. All of this means that for organizations like the Canada Border Services Agency (CBSA), which has no review body, use of the directions may be largely immunized from independent scrutiny.