About the Issue
“Let us be clear: torture can never be an instrument to fight terror, for torture is an instrument of terror.” Kofi Annan, then UN Secretary GeneralThere are no exceptions; torture is always illegal, both under the Canadian constitution and under international law. Indeed, the prohibition against torture is considered a jus cogens principle of international law – a fundamental principle from which no derogation is permitted. This means that Canadian authorities can never participate in torture, but also that Canada must never be complicit in torture committed abroad. Nor can Canada condone or contribute to the use of torture in other countries. Canada is also prohibited from transferring, removing or deporting individuals to the risk of torture pursuant to the principle of non-refoulement. Canada has signed and ratified the UN Convention Against Torture. CCLA has worked consistently to ensure that Canada upholds all its legally binding obligations under this treaty.
Why This Matters
In the years since 9/11, Canada has acted in ways that threaten to erode the absolute prohibition against torture. One of the key tactics in global counter-terror efforts is the sharing of intelligence (information) among States. Canada has been a ‘net-importer’ of intelligence, and it is the CCLA’s view that Canada must not rely upon or share information procured from torture. We also believe that Canada must not pass on information to a foreign country where that information may result in torture. CCLA has taken the position that torture is immoral and does not produce reliable information – an individual being tortured is likely to say anything for the torture to stop, or may be prepared to intentionally mislead the torturer. US Army Officials have repeatedly argued that torture does not work, and did not work in identifying or locating key suspects. CCLA is of the view that torture debases the victim, the torturer, and the society that tolerates it. Furthermore, the sharing of information procured by torture results in corrupted international information networks that perpetuate further rights abuses, and do not contribute to national security. CCLA is also concerned by violations of Canada of the principle of non-refoulement, which includes removal of individuals, non-citizens, refugees, or extradition to the risk of torture. Finally, CCLA remains concerned that systemic issues which enabled the reported transfer of Afghan detainees by Canadians to the risk of torture has not been addressed – CCLA is concerned that Canada has not only violated its international law obligations, but such actions may put Canadian soldiers at risk in the future.
CCLA has worked tirelessly to protect and uphold the absolute prohibition against torture in Canada and believe it is essential to the protection of human dignity and rights. We have appeared in the Supreme Court of Canada to argue against extradition of individuals and refugees to the risk of torture in violation of the principle of non-refoulement which exists in both human rights and refugee law. In 2012, CCLA made written submissions and appeared before the UN Committee Against Torture in Geneva, with respect to the UNCAT’s consideration of Canada’s State Report – here CCLA set out our serious concerns regarding practices that did not comport with the UN Convention Against Torture and the international bill of rights. CCLA also intervened in the Supreme Court of Canada, and the Quebec Court of Appeal, in the case of Kazemi et al. v. Iran et al., to argue that individuals who have been tortured, and their families, must have the right to pursue a civil remedy against a foreign State. CCLA has also worked to end intelligence-sharing practices contaminated by torture. Information procured through torture should never be used as evidence in Canada and should never be used to deprive an individual of liberty. We have spoken out against unearthed Ministerial Directives that allow for the use and sharing of information in exceptional circumstances. In January 2015, CCLA along with the Canadian Association of Elizabeth Fry Societies (CAEFS) launched a challenge against the practice of solitary confinement of prisoners in Canada’s federal penitentiaries, arguing that such practices can constitute torture, and cruel and unusual treatment, contrary to the Charter.
Following our appearance before the UNCAT, the Committee set out a series of recommendations to the Government of Canada incorporating many of CCLA’s suggestions, particularly with respect to information sharing among intelligence agencies and the need to implement the O’Connor and Iacobucci Inquiry recommendations and findings; the treatment of refugees and asylum seekers; Security Certificates; the principle of non-refoulement; and our concerns over allegations that Canada may have transferred Afghan detainees to the risk of torture. CCLA considered this an important step in ensuring Canada’s accountability regarding its binding obligations pursuant to the UN Convention Against Torture. CCLA has also written op-eds (read one here) arguing against torture, fostering public debate on the issue and provoking a response from then Public Safety Minister Vic Toews. CCLA is currently representing an individual who argues he is a Canadian citizen and who is fighting deportation to a country where he fears he will face harm. This case is currently being considered by the UN Human Rights Committee, the treaty body that monitors implementation of the International Covenant on Civil and Political Rights, and the Optional Protocol which allows for individual complaints
CCLA continues to work to uphold the absolute prohibition against torture, and to fight the sharing of information contaminated by torture. CCLA will also continue to fight to uphold the principle of non-refoulement which applies to refugees and ordinary individuals to protect them against removal to the risk of torture. In this coming year, CCLA will focus on our domestic challenge of the practices of Solitary Confinement/segregation, in Canadian federal prisons – we are fighting the legislative provisions that permit these practices arguing that they constitute torture and cruel and unusual treatment and cannot be countenanced by a civilized society.