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

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 where there is substantial risk of mistreatment of an individual. After a brief chorus of condemnation, the directions sank into relative obscurity while remaining part of Canada’s national security policy framework. This article aims to reignite discussion of these policies and their controversial content, relying in large measure on documents obtained by the author directly or through journalistic researchers under access to information law. First, I examine dilemmas raised when information is shared between human rights-observing and -abusing states and then focus on the legal parameters and policy context in which both “in-bound” and “out-bound” information sharing takes place. Next, I analyze the 2011 instruments and consider their legality under both international and domestic law. I conclude that the legality of these measures is doubtful in international law—at least in so far as out-bound information sharing is concerned—and that domestic criminal culpability and constitutional validity are very close questions

Touching Torture with a Ten Foot Pole

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

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

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 where there is substantial risk of mistreatment of an individual. After a brief chorus of condemnation, the directions sank into relative obscurity while remaining part of Canada’s national security policy framework. This article aims to reignite discussion of these policies and their controversial content, relying in large measure on documents obtained by the author directly or through journalistic researchers under access to information law. First, I examine dilemmas raised when information is shared between human rights-observing and -abusing states and then focus on the legal parameters and policy context in which both “in-bound” and “out-bound” information sharing takes place. Next, I analyze the 2011 instruments and consider their legality under both international and domestic law. I conclude that the legality of these measures is doubtful in international law—at least in so far as out-bound information sharing is concerned—and that domestic criminal culpability and constitutional validity are very close questions

Hegemonic Federalism: The Democratic Implications of the UN Security Council's "Legislative" Phase

Several recent UN Security Council antiterrorism resolutions amount to legislation for the international community. The Security Council's new approach raises real predicaments for those states that, in their domestic system of government, are democracies. Not least, the Council risks disturbing the carefully balanced features of liberal democracy, including the very separation of powers on which functioning democracies are built. The article that follows explores this contention, with a particular focus on the implications of Security Council action for Canadian democracy. It concludes that the Security Council's legislative phase creates a new species of international/domestic legal interface, perhaps best described as "hegemonic federalism" – that is, a system in which the Security Council asserts plenary lawproject authority over the Canadian federal executive, which in turn responds with direct implementation of the international resolution or strongly encourages (and in majority Parliaments likely ensures) compliance by Parliament

A Bismarckian Moment: Charkaoui and Bill C-3

Bill C-3, an effort to remedy the core defects of the prior immigration security certificate regime, cobbles together a potentially half-hearted “special advocate” regime and converts immigration law into a de facto system of indefinite limits on liberty for foreigners. The new system will generate an inevitable series of new constitutional challenges, some of which may succeed at the Supreme Court unless the deficiencies of Bill C-3 are cured by careful innovation at the Federal Court level. This paper explores these contentions. Part II of the paper provides a brief overview of the immigration security certificate regime and the core Charkaoui holding on the question of fair hearings. Part III canvasses the various models of “special counsel” the Supreme Court suggested might satisfy constitutional requirements under section 1 of the Charter. Part IV examines the policy and political environment in which Bill C-3 was the n developed, the nature of Bill C-3’s response to the core findings of the Charkaoui decision and the law-making process in Parliament. Part V the n turns to other features of Bill C-3, noting both changes that will likely prove important and other areas that will likely create new controversies, including the question of indefinite detention. The paper concludes that Bill C-3 represents an unsatisfactory waypoint in — rather than an ultimate culmination of — protracted constitutional debates over security certificates

A Bismarckian Moment: Charkaoui and Bill C-3

Bill C-3, an effort to remedy the core defects of the prior immigration security certificate regime, cobbles together a potentially half-hearted “special advocate” regime and converts immigration law into a de facto system of indefinite limits on liberty for foreigners. The new system will generate an inevitable series of new constitutional challenges, some of which may succeed at the Supreme Court unless the deficiencies of Bill C-3 are cured by careful innovation at the Federal Court level. This paper explores these contentions. Part II of the paper provides a brief overview of the immigration security certificate regime and the core Charkaoui holding on the question of fair hearings. Part III canvasses the various models of “special counsel” the Supreme Court suggested might satisfy constitutional requirements under section 1 of the Charter. Part IV examines the policy and political environment in which Bill C-3 was the n developed, the nature of Bill C-3’s response to the core findings of the Charkaoui decision and the law-making process in Parliament. Part V the n turns to other features of Bill C-3, noting both changes that will likely prove important and other areas that will likely create new controversies, including the question of indefinite detention. The paper concludes that Bill C-3 represents an unsatisfactory waypoint in — rather than an ultimate culmination of — protracted constitutional debates over security certificates