Research Paper Number

11/2014

Craig Forcese

Subsequently published in the Osgoode Hall Law Journal.

Document Type

Article

Publication Date

2014

Keywords

torture; intelligence; intelligence-sharing; national security; Canada; international law; complicity; criminal law

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.

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