About this Project

This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.

 

For a continuing conversation on Canadian national security law and policy, please join Stephanie Carvin and me at A Podcast Called INTREPID.

 

Please also visit my archive of "secret law" in the security area.

By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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Thursday
Dec032009

Security Certificates: Time for a Plan B

Cross-referencing: National Security Law (NSL), Ch. 10 pp. 410 et seq. and Ch. 14, pp. 569 et seq.

In an October 2009 opinion editorial in the Globe and Mail,
I wrote that “[t]he security certificate system as a tool of anti-terrorism is
dead.” This op-ed followed the dismissal of the certificate against Adil
Charkoui, upon withdrawal of much of the secret information deployed against
him. The latter act, in turn, followed a court order to disclose more
information than the government (and the Canadian Security Intelligence
Service, in particular) believed that it could without prejudicing national
security interests. (CSIS director Richard Fadden has since described this
decision as follows: “the demands for disclosure in the Charkaoui security
certificate case pushed us beyond what we could accept. We were faced with a
pretty fundamental dilemma: to disclose information that would have given
would-be terrorists a virtual road map to our tradecraft and sources; or to withdraw
that information from the case, causing a security certificate to collapse. We
chose the path that would cause the least long-term damage to Canada and
withdrew the information.”)

 

In my op-ed, I noted that four
other security certificate cases “continue, and the government could ‘win’ a
few in the short-term.  But even if it demonstrates a reasonable basis for
its allegations, the saga will continue – security certificates are supposed to
be about deportation. And that prospect seems vanishingly remote because of the
risk that the four remaining individuals will be tortured if deported. All of
this means that the government will inevitably need a ‘plan B’ for the future.”

 

It seems useful to expand on my
contentions in this blog, in more than the 800 words permitted for the op-ed.

 

 

The Objectives of
Security Certificates

 

            Security
certificates were (and are) supposed to about removal of security threats from
Canada. Detention, or other restrictions on liberty, associated with the
security certificate are supposed to be temporary, persisting only up to
removal.  That removal is supposed
to be speedier under a security certificate than are regular inadmissibility
proceedings in front of immigration adjudicators.  A security certificate goes directly to a Federal Court
judge (whose decision on the reasonableness of the certificate is final, and
amounts to a removal order). 
Immigration adjudicator decisions are subject to more layers of possible
review.

 

            Of
course, none of these objectives have been met in relation to the five (now,
four, post-Charkaoui) security certificates issued against suspected terrorists/terrorist
affiliates. Unlike in past cases involving, e.g., Russian sleeper agents,
removal has been vigorously contested by these five, each of whom risks removal
to a jurisdiction with (at best) a spotty record on torture.  Effectively, the Canadian security
certificate labels (or reveals, depending on the truth of the matter) these
individuals as members of organizations whose purposes are invariably at
variance with the interests of their countries of origin to which they may be
removed. In these circumstances, it is to be suspected that authorities in
those states will have their own agendas to pursue with these individuals,
giving rise to a prospect of torture that does not exist with, e.g., the
removal of Russian sleeper agents.

 

            In
the result, these individuals have been detained (or subject to strict
conditions on their liberty) for very long periods of time as each dimension of
the security certificate system is tested up and down the court system.  For these individuals, caught between
the rock of removal to torture and the hard place of limitations on liberty in
Canada, security certificates have become a de
facto
system of “control orders”, analogous in effect to the system
existing in the United Kingdom and Australia. 

 

 

            This
scenario seems likely to recur each time a security certificate is used against
an individual suspected of being a terrorist/terrorist affiliate, and removal
is to a country that a) has a poor record on torture and b) whose own national
security interests are engaged by the individual’s suspected acts or
affiliations.  Moreover, this
scenario is likely to recur even if, instead of security certificate, the
government resorts to the regular inadmissibility proceedings under the Immigration and Refugee Protection Act (IRPA).  This may be a different system, but it
creates the same incentive to contest removal, and the same constitutional
issues in terms of detention and removal to torture.

 

The Inadequacies of
Immigration Law

 

            This
raises the question of whether immigration law can ever be used as an effective
tool of anti-terrorism.  (There is
an argument that, factually, immigration remedies just displace the security
risk – fortifying the Canadian border does not reduce the playing field for
terrorists elsewhere.  Still, I can
see how displacement may still be strongly desirable, especially if it disrupts
a terrorist agenda.)

 

Examining the question from the
narrower perspective of “legally, can immigration law ever be used as an
effective tool of anti-terrorism” my answer would be: Yes, to the extent
immigration law can be used to, e.g.,
pre-screen suspected terrorists before arrival in Canada (for example, security
checks and the issuance of visas). 
Yes, to the extent suspected terrorists/terrorist affiliates who do
arrive in Canada are subject to removal to a country that doesn’t torture. No,
in other circumstances.

 

 

No Removal to Torture,
Period

 

To expand on this last statement:
the IRPA at present does permit removal where national security interests are
substantial enough, even where there is a serious prospect of torture. But
international law does not.  As
discussed in NSL, Article 3 of the Torture Convention is unequivocal: no removal, no matter what, “where there are substantial
grounds for believing that he would be in danger of being subjected to torture.”  Article 3 further specifies: “For the purpose of determining whether there are such
grounds, the competent authorities shall take into account all relevant
considerations including, where applicable, the existence in the State
concerned of a consistent pattern of gross, flagrant or mass violations of
human rights.” (It is worth noting that the UN Human Rights Committee has
construed the International Covenant on Civil and Political Rights, Art. 7, as
containing an equivalent restriction).

 

Accordingly, any application of
the IRPA (or the Charter of Rights and
Freedoms
) that would allow removal in the face of these “substantial
grounds for believing” would violate our international obligations. It really
is that simple.

 

Much ado has been made about the
Supreme Court’s 2002 decision in Suresh
that seemed to open the door a crack under the Charter to removal to torture where
the extenuating circumstances were dire enough. I think, personally, that that
crack no longer exists.  Suresh wasn’t dealing squarely with the
issue – the comment was obiter.  Since 2002, the courts seem to have
become much less sympathetic to government national security claims.  Most importantly, as I argue at p.577
of NSL, the Supreme Court has also since reaffirmed its commitment to interpret
the Charter in keeping with Canada’s international obligations.  And, as noted, those international
obligations are unambiguous.

 

 

No Guarantees from
Assurances

 

            A
frequently cited solution to the conundrum of removal to torture is the concept
of “diplomatic assurances”; essentially, supplementary promises from the
receiving state that it won’t abuse the person upon his or her return.  If credible, these assurances would
vitiate the “substantial grounds to believe” the person will be tortured.  As discussed in NSL, p.576, assurances
are regarded as doubtful guarantees by the human rights community and attracted
negative commentary by the Supreme Court in Suresh
(and in subsequent Federal Court cases).

 

            The
assurance concept has been pursued most earnestly in the United Kingdom.  Human Rights Watch has prepared an
overview of this policy.  This
approach earned a conditional blessing from the House of Lords in its 2009
decision of RB v. Secretary of State.
 Essentially, whether the assurance
displaces the reasonable grounds to believe threshold is a question of fact,
dependent (among other things) on the state in question and the nature of the
assurance.  (See in particular, the reasoning of Lord Phillips in
paragraphs 106-126, Lord Hoffmann in paragraphs 182-194 and Lord Hope in
paragraphs 235-242).

 

            However,
I find it hard to believe that those facts ever add up to a viable assurance in
the Canadian context. The problem with assurances, of course, is that they constitute
a promise not to do something that is already
illegal in conventional and customary international law and, invariably, the
law (and perhaps even the constitution) of the torturing country. It strains
credulity that when these robust sources of obligation prove ineffectual, some
supplementary memorandum of understanding will prove effective, especially if
that understanding includes no on-going monitoring by the deporting country of
the returnee’s status.  The
following are, for me, a sobering and damning indictment of assurances:

 

            First,
the assurance is not enforceable in
international law.  It is not a
treaty obligation. The deporting state would have no standing to enforce it,
even assuming that there was an international venue competent to assume
jurisdiction over the dispute.

 

            Second,
a diplomatic assurance issued by one branch of government – the foreign
ministry, for example – may be done completely in good faith and have no impact
whatsoever over the actions of the security services. As CSIS director Fadden
commented in his recent speech, “in some countries the intelligence agencies
are more influential than their foreign ministries”.  Whether a security service will feel bound by a diplomatic
assurance entered into by some other branch of government is no sure bet.  

 

            Third,
even if the security service itself agrees to the assurance, compliance depends
entirely on a cost-benefit analysis: what is the cost of non-compliance against
the benefits of violating the agreement. A country that views its key national
security interests imperiled by the actions of the terrorist entity with which
the returnee is implicated and which takes the view that extreme
interrogation/intimidation is in its interests may have strong incentives to
violate the agreement. The countervail is the disrepute that country would then
be held in by the deporting country (assuming the latter even found out about
the abuse, an uncertain possibility). That disrepute might imperil future
returns and other forms of intelligence cooperation. 

 

This may be a reasonably potent countervail where the
assurance is given to, e.g., the
United States or the United Kingdom – states with whom the torturing state may
have important relationships. 
Canada’s place in the hierarchy of global power is very different, and
the countervail is accordingly much weaker.  Moreover, for a long time, the government has repeatedly
urged (in submissions on the need to protect foreign-provided intelligence from
disclosure and elsewhere) that Canada is a practical supplicant in the world of
information-sharing.  All told, the
government’s evidence in Canada Evidence
Act
and security certificate cases is that we receive more intelligence
from our partners than we give – we need them more than they need us.  In Mr. Fadden’s words: “just as we have
diplomatic links with countries with poor human rights records, so must there
be intelligence links. If Canada’s only intelligence sharing took place with
countries that had pristine human rights records, there would be little we
could do to track threats across a turbulent planet.” It seems very unlikely
indeed that we would truly imperil or curtail a relationship with a foreign
state’s intelligence services over the treatment of someone we ourselves regard
as a security threat.

 

Also of note, our record in terms of forestalling
torture appears to be spotty, even where we do (presumably) have influence. The
record of treatment of battlefield detainees transferred from the Canadian
Forces to Afghan authorities in Afghanistan is now a matter of some
controversy, but it seems very likely that some number of them have been
maltreated.  This is true even with
the prisoner transfer arrangements concluded between Canada and Afghanistan –
arrangements that while imperfect, are probably more demanding than anything
likely to be found in a diplomatic assurance.

 

 

            In sum, diplomatic assurances are an unsustainable
solution to the inadequacies of immigration law as a tool of anti-terrorism.

 

Plan B

 

            So
the solution must come from a completely different body of the law. RCMP
Commissioner Elliot championed a criminal law-led approach
in an October 2009
speech, and it is a view I also expressed in my op-ed. 

 

            To
be clear, the criminal law is no solution to the dilemmas posed by the five
anti-terrorism security certificates that have proven so contentious (that is, those
of Almrei, Charkaoui, Harkat, Jaballah, and Mahjoub).  The alleged behaviour that has been used to implicate these
individuals pre-dates the anti-terrorism provisions in the Criminal Code and Security of
Information Act
added by Bill C-36 in 2001.  This criminal law cannot, for constitutional reasons, be
applied retroactively.

 

            Still,
these individuals have been incarcerated and subject to restraints on liberty
for length periods of time, and courts have now universally agreed that that
fact attenuates the security threat they are alleged to pose. Put another way,
if they were dangerous, they are now less dangerous and that danger can be
contained by measures short of detention and even the initially very strict
limitations on liberty imposed on their initial release. Plan B should not,
therefore, be driven by a preoccupation with these five individuals – it risks
contorting policy to fit the peculiarities of a handful of cases.

 

 

The Criminal Law’s
Reach

 

 

            Critically,
the criminal law now reaches very far in terms of terrorist activity.  As discussed in NSL chapter 7, it has a
strong preemptive dimension, encompassing behaviour that once would have been
unassailable in criminal law because it was “merely preparatory” to an actual
offence.  Indeed, it captures much
– if not all – of the sorts of actions apparently at issue in the security
certificate cases.  Note, for
example, the provisions included (rather incongruously) in the Security of Information Act:

 

20. 
(1) Every person commits an offence who, at the direction of, for the benefit
of or in association with a foreign entity or a terrorist group, induces or
attempts to induce, by threat, accusation, menace or violence, any person to do
anything or to cause anything to be done

 

(a) that is for the purpose of
increasing the capacity of a foreign entity or a terrorist group to harm
Canadian interests [a very broadly defined concept, set out in section 3]; or

 

(b) that is reasonably likely to
harm Canadian interests.

 

 

 

(2) A person commits an offence
under subsection (1) whether or not the threat, accusation, menace or violence
occurred in Canada.

 

(3) Every person who commits an
offence under subsection (1) is guilty of an indictable offence and is liable
to imprisonment for life.

 

 

22. 
(1) Every person commits an offence who, for the purpose of committing an
offence under … 20(1), does anything that is specifically directed towards or
specifically done in preparation of the commission of the offence, including

 

(a) entering Canada at the
direction of or for the benefit of a foreign entity, a terrorist group or a
foreign economic entity; …

 

 

(2) Every person who commits an
offence under subsection (1) is guilty of an indictable offence and is liable
to imprisonment for a term of not more than two years.

 

 

 

Note also this provision from the Criminal Code:

 

83.18 (1) Every one who knowingly
participates in or contributes to, directly or indirectly, any activity of a
terrorist group for the purpose of enhancing the ability of any terrorist group
to facilitate or carry out a terrorist activity is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten years.

 

 

 

(3) Participating in or
contributing to an activity of a terrorist group includes … (d) entering or
remaining in any country for the benefit of, at the direction of or in
association with a terrorist group …

 

             Under
the latter provision, entering Canada to serve as a “sleeper” for a terrorist
group is almost certainly a crime. 
Under the former provision, entering Canada for the purpose of
extorting, e.g., Tamils to provide
financial support to the Tamil Tigers (a terrorism financing offence) would
likely be guilty of a crime.

 

 

Proving Crimes

 

            Proving
criminal offences is another story, and is the true disincentive to pursuing
this Plan B.  Criminal proceedings
are open – much more so than the security certificate proceeding – and
disclosure rules are robust (although the difference between the two bodies of
rules has been narrowed by the Supreme Court’s Charkaoui II ruling).

 

Accordingly, if the evidence to be deployed against
an individual comes from an allied security service, extreme sensitivity over
its disclosure would likely terminate a prosecution – as discussed in NSL,
chapter 10, the “third party rule” and “originator control” make disclosure of
foreign-provided intelligence a damning sin in intelligence sharing circles.  Likewise, domestic security services are
extremely wary of their own sources and techniques being dragged into open
court. The Canada Evidence Act does
provide a means for protecting this information from disclosure.  It also allows a trial judge to toss
criminal charges if non-disclosure would produce an unfair trial.

 

This reality makes criminal trials possible in the
following circumstances:

 

1.    
The information supplying state consents to the
disclosure of the key inculpatory information; or,

 

2.    
In the absence of that consent, a
security-sanitized summary of the evidence can be prepared that accommodates
the national security preoccupation while not materially impairing the fairness
of the trial; or

 

3.     The
Canadian security services have enough inculpatory evidence of their own which
does not prejudice their own sources and techniques to support a conviction
(note that the common law has long recognized informer privilege in criminal
trials).

 

(There is, of course, a fourth possibility: Canada ignores
the third party rule, and uses foreign-provided intelligence in criminal
prosecutions without consent. Such a course of action would almost certainly
destroy Canada’s relationship with foreign intelligence services, putting in
great peril further information sharing of a sort that may be absolutely
critical to Canada.  I do not,
therefore, believe that this fourth possibility merits discussion).

 

Option 3 appears to be in play in the “Toronto 18”
proceedings.  Option 2, in effect,
arose in the Khawaja case (through
the Canada Evidence Act).  Option 1 is the most thorny issue. The
bottom line is that every state faces the dilemma of the third party rule in
terrorism cases – modern terrorism straddles borders and implicates a whole web
of information sharing networks. To the extent each state treats the third
party rule as absolute – and refuses to consent to disclosure in the court
proceedings of another state – each pursues a policy that may, applied against
it, imperil its own prosecutions. The result is a sort of intelligence “beggar
thy neighbour” approach.

 

In these circumstances, states must consider requests
for disclosure of their shared intelligence carefully (and not dismiss them out
of hand, or demand secrecy for even the most banal information).  Indeed, it seems wise to develop
protocols on how and where information can be disclosed in court proceedings,
perhaps concluded initially between states with similar legal systems. These
protocols would vitiate CSIS’s complaint in some of the security certificate
cases that even asking for permission
to disclose foreign provided intelligence creates the impression that the
agency is soft on secrecy, and not to be trusted.

 

 

(As an aside, I would not support the introduction of
IRPA-style special advocates in criminal cases. It departs too radically from
our criminal law tradition to exclude the accused from his or her own trial – I
can’t see it being desirable or constitutional or (given recent successful
prosecutions in Canada) necessary. 
That said, I think there is a
role for special advocates to represent the interests of the accused in the
collateral Canada Evidence Act
proceedings where decisions on the disclosure of secret evidence to the accused
are made).

 

 Preventive
Detention?

 

            Objections
to a Plan B focused on the criminal law also often urge that there will be
instances where actions needs to be taken immediately, perhaps even
precipitously, to disrupt a terrorist plot before evidence of a quantity or calibre
to support a conviction beyond a reasonable doubt has been collected.

 

            As
noted, the post-2001 terrorism provisions reach very far into once “merely
preparatory” behaviour.  It stands
to reason that these urgent scenarios arise less often if behaviour several
steps removed from actual terrorist violence is criminalized.  But of course, urgent situations where
the criminal law is not yet engaged will still arise, even if more rarely.

 

In these circumstances, the state does need a
tool.  As discussed in NSL, chapter
14, the United Kingdom and Australia both have tools of preventive detention
and so-called “control orders” that remove or limit the liberty of action of
terrorist suspects.  Comparative systems
of preemptive detention – or detention without charge – are described in a report
by the UK human rights organization
, Liberty.

 

Canada’s system of so-called “preventive detention” –
sunsetted several years ago – is modest in comparison.  The bill currently before Parliament
would restore this same system.  As
I will describe in a supplemental blog, I believe that this system is
appropriate (although the bill deserves some tightening up). I think it is enough,
in the absence of a very compelling case grounded in the actual facts of the
Canadian security situation that something more draconian is necessary.

 

 

 Conclusion

 

            In
sum, I believe that as a legal matter, the tools for an effective system of
anti-terrorism are available, even though the back of the immigration approach
is broken.  I defer to RCMP
Commissioner Elliot on whether the sort of plan B that I support – a back to
basics criminal law approach – is adequately financed.  His view is that law enforcement has
been the poor cousin in the post-9/11 terrorism strategy.  His opinions on this point are
certainly consistent with what I’ve heard from others.  All of this leads to my final (and
perhaps banal) conclusion: Rather than throwing more money at security
certificates, we should now be better financing criminal investigations.

Friday
Nov272009

Parsing the Law on Torture: Criminal culpability in the Afghan detainee controversy?

 

Cross-Referencing: National Security Law (NSL), Ch. 14, pp.
542 et seq.

NB: THIS POST SHOULD BE REGARDED AS SUPERSEDED BY THE MORE FORMAL AND COMPLETE ANALYSIS FOUND HERE.

There has been substantial attention directed in the last
week to parliamentary testimony by a Foreign Affairs official on who knew what and
when about the possible torture of Afghan detainees transferred by Canadian
Forces to Afghan prisons.  Much remains to be resolved about the facts in this case (not least contradictions between the official's testimony and that of Canadian generals this week), and the dust has not yet
settled.  But even at this juncture, there is a subtext of commentary on the possible criminal culpability
of Canadian Forces personnel, and perhaps those in the civilian chain of
command in Ottawa, for these transfers. All of the discussion I have seen so
far raises “war crimes”, whether in the context of the Crimes Against Humanity and War Crimes Act or the International
Criminal Court, or “torture”, within the meaning of section 269.1 of the Criminal Code.

 

I’m not persuaded by what I’ve seen so far on these two
issues (at least insofar as Canadian law is concerned). I thought I’d memorialize my doubts, perhaps enticing a correction from
those who know this area better than I do.

 

In preface, let me repeat observations made in NSL: the
prisoner transfer “arrangement” between Canada and Afghanistan that existed
before revisions in 2007
was inadequate. 
The absence of independent follow-up after transfers was an obvious
flaw, one not present in the transfer agreements concluded by other NATO
countries.  This was a critique
advanced by others – such as Amir Attaran – well before me, and I believe he
and others were correct and insightful to do so.

 

The more recent 2007 arrangement is much more robust,
although like others, I persist in the view that no arrangement can really
guard against torture where such acts are pervasive. I remain among those who
think that Canadian investment in properly run prisons (run by NATO or under
close NATO supervision) should have been part of our involvement at the outset.
People I respect tell me that’s naïve. It’s hard for me to believe, however,
that the downside of such an investment would be worse that the torture
controversy that has since swirled around the Afghan deployment. Nor do I agree
with the “sovereignty” complaint; that such a prison would unduly infringe
Afghan sovereignty.  The 2007
“arrangement” does sovereignty infringement in a big way – a NATO run prison
would simply be more of the same.

 

 

This is all water under the bridge. The question of the day
is now criminal culpability. That issue raises a number of sub-questions.  In dealing with these, I shall assume
the worst-case description described in the parliamentary testimony; namely,
that Canadian soldiers and officials knew
that prisoners they were transferring were
being tortured. I do so for the purpose of the discussion below, without
prejudging what may become known about the facts in the future.

 

War Crimes?

 

First, could a Canadian Forces (CF) soldier doing the
transferring (or their superior who ordered the transfer) be culpable under the
Crimes Against Humanity and War Crimes
Act
(CAHWC Act).  Torture is a
war crime. This is true whether we assume the conflict in Afghanistan is a
non-international or international conflict. It is the former and has been at
for some time, in my view. But either way, torture is precluded by Geneva
Convention III (for international conflicts) and Common Article III and
Additional Protocol II (for non-international conflicts) and by customary
international law.

 

But I’m not aware of any credible allegations of Canadian
soldiers doing the torturing. We’re in the realm of transfer to torture.  Transfer to torture is dealt with in international
law; not least in the UN Convention Against Torture, Art. 3. And I think there
are reasons to believe that that treaty’s bar on removal to torture could apply
to Canadian conduct within Afghanistan. See NSL, pp. 542-3. But Article 3 is
not a source of individual criminal culpability (as opposed to state
responsibility).

 

If this were an international conflict, governed by Geneva
Conventions III and IV, there would be concrete rules in international
humanitarian law on prisoner transfers – not least, the sending state must be
satisfied that the receiving state will abide by the Conventions in terms of
prisoner treatment.

 

But this isn’t an international conflict, so we have no
codified rules on prisoner transfer of any particular note. That said, s.6 of the
CAHWC Act makes it clear that one can be culpable of a war crime when one “conspires
or attempts to commit, is an accessory after the fact in relation to, or
counsels in relation to” that war crime; e.g., torture. So an obvious
limitation on prisoner transfers, even in a non-international conflict, is
“don’t transfer in a manner that amounts to conspiring, attempting, being an
accessory or counseling” torture. If you do, then there is a possibility of
criminal culpability, both individually and through command responsibility.

 

Which brings us to the specifics of the Afghan detainee
issue. I don’t see how, even if all allegations made last week prove absolutely
true, you reach any of these “inchoate” offences of conspiracy, attempting,
being an accessory or counseling. As I suggest in the table below, all of these
things require an actus reus and mens rea aimed at producing the criminal
conduct (the torturing). As such, they just don’t fit what, as suggested in the testimony, was a careless, indifferent,
wrong-headed, and foreseeably inadequate policy, but not one intended to produce torture.

 

 

As for command responsibility, s.7 does use the words
“criminally negligent” to describe a failure of supervision by a superior
officer.  But that language can’t be read in isolation. It refers to criminal
negligence in terms of supervising the person under the superior’s authority
who actually commits the actual war crime.  So you still need someone within the CF
chain of command committing the underlying war crime. Per the discussion above, that doesn't exist on the present facts. Command responsibility based
on an argument that CF officers had effective control over the Afghan prison
guards who did the torturing seems a total non-starter.

(As an addendum, the concept of aiding and abetting applied in international criminal law appears to be less demanding of the mens rea requirement that is the case for the inchoate offences listed in the CAHWC Act. There, knowledge may suffice, without a more specific intent to assist in the perpetration of the crime aided and abetted.  See the discussion in Joseph Rickhof, "Complicity in International Criminal Law and Canadian Refugee Law," (2006), 4 Journal of International Criminal Justice 702 at 707. Aiding and abetting is not, however, mentioned in the CAHWC Act.  Moreover, this international jurisprudence was developed by the ad hoc tribunals for the former Yugoslavia and that for Rwanda. I note that the concept of aiding and abetting in the Rome Statute, creating the international criminal court, specifies that the aiding and abetting must be for "the purpose of facilitating the commission of the crime", which seems to impose a test that precludes mere transfer with knowledge of torture from being cognizable as aiding and abetting. If I am wrong on this, I certainly welcome a correction.)

[FURTHER ADDENDUM (March 2010): Having spent some time on this issue since first writing this post, I now am of the view that the customary international criminal law concept of aiding and abetting could, in fact, be viewed as incorporated by reference in the CAHWC Act.  This changes my analysis of possible culpability.  I will amplify this changed position in a future posting.]

[FURTHER ADDENDUM (April 2010): A report on possible culpability that is much more through and comprehensive than this blog, and deals with aiding and abetting in customary international law, is now available here.]

 

Torture?

 

Section 269.1 of the Criminal
Code
makes torture a crime, whether it occurs within Canada or abroad.  Once again, we are not discussing here
torture committed by the Canadian Forces. 
So could a CF soldier still be culpable under the Criminal Code for torture committed by an Afghan official?  Like the CAHWC Act, the Criminal Code includes inchoate
offences, most notably those in section 21 et
seq
. The one of greatest note here is “aiding and abetting”. As the chart
below suggests, aiding and abetting comes closest to “transferring to torture”
from an actus reus perspective. But
the mens rea (in Canadian law) appears to require more than
recklessness – it requires more specific intent to actually contribute to the
criminal offence. (And this ignores the mind-bending issue of whether s.21 itself has extraterritorial reach when
tied to section 269.1, or instead is confined to aiding and abetting that
occurs in Canada).

[Addendum (April 2010): As a clarification, this question of extraterritoriality should not be relevant to service tribunal proceedings, applying section 130 of the National Defence Act, in relation to proceedings against a CF member.  It would be relevant in relation to regular Criminal Code proceedings against civilian officials, however.

On the mens rea reqirements for aiding and abetting under the Criminal Code, readers are referred to the April 2010 holding the Supreme Court of Canada in R. v. Briscoe, requiring a) intent and b) knowledge (whether that knowledge is actual or a product of willful blindness)]

 

 

Requirements for
Various Inchoate Offences

































Offence



Actus reus (Action)



Mens rea (Mental
state)



Conspiracy[1]



Agreement by two or more persons to commit a criminal
offence. There must be a “meeting of the minds, a common
purpose or mutuality of object between the conspirators.”



An intention to put their common
design into effect



Attempts



Acts taken to further the intent



Section 24 of the Criminal
Code
requires “intent to commit an offence”.  As “the crime of attempt may be
complete without the actual commission of any other offence and even without
the performance of any act unlawful in itself, it is abundantly clear that
the criminal
element of the offence of attempt may lie solely in the intent.”[2]



Accessory after the fact



Receives, comforts or assists a person for the purpose of
enabling that person to escape, per s.23 of the Criminal Code.



Knowing that a person has been a party to the offence, per
s. 23 of the Criminal Code.



Counselling



Counsels (which includes procure, solicit or incite)
another person to be a party to an offence and that other person is
afterwards a party to that offence, per s.22 of the Criminal Code.  In
other words, “the deliberate
encouragement or active inducement of the commission of a criminal offence
.”[3]



“Intent or conscious disregard of the substantial and unjustified risk
inherent in the counselling
: that is, it must be
shown that the accused either intended that the offence counselled be
committed, or knowingly counselled the commission of the offence while aware
of the unjustified risk that the offence counselled was in fact likely to be
committed as a result of the accused's conduct”.



Aiding or Abetting, per section 21 of the Criminal Code



Aids, assists, encourages the criminal offence



Has the purpose of aiding a person to commit an offence,
and intends that the actions will assist/encourage the perpetrator.[4]


 

 

 

 

 

What’s Left?

 

I readily concede that in my quick musings on this question I may be missing something. But until
corrected, I’m left with the view that the war crimes and torture culpability
discussions I’ve heard to date skate quickly over “complicity” to criminal
culpability, without unpacking what “complicity” really means.  That complicity has to fit the round
peg of Canadian criminal law, and to date the facts don’t fit that round peg.

[Addendum (April 2010): My initial view must now be tempered per the observations in the March and April addenda relating to aiding and abetting in customary international law, cited above.]

 

So does that mean the criminal law has no place here? No, of
course not. Here’s what I would be most concerned about if I was in the CF or
government.

 

Under s.130 of the National
Defence Act
, the Criminal Code travels
with the CF, and applies to their conduct abroad. So criminal culpability
remains to be measured against all of the offences in that tome. The most
obvious is criminal negligence:

 

 

219. (1) Every one is criminally negligent who (a) in doing
anything, or (b) in omitting to do anything that it is his duty to do, shows
wanton or reckless disregard for the lives or safety of other persons.

221. Every one who by criminal negligence causes bodily harm
to another person is guilty of an indictable offence and liable to imprisonment
for a term not exceeding ten years.

 

 

 

 

 (Note that a CF
soldier was recently prosecuted for criminal negligence in relation to the
discharge of a weapon that killed a fellow soldier in Afghanistan). Everything
hinges on the facts of the Afghan transfer issue and whether it transgresses
the standard of “wanton or reckless disregard”.  As noted, the dust hasn’t settled on that yet, but criminal
negligence may be a likely candidate. A wanton and reckless transfer would be causally linked to the ultimate bodily harm, and presumably cognizable as criminal negligence.

 

An interesting subsidiary question is whether the prisoner
transfer arrangement applicable at the time insulates those doing the
transferring from any claim that they were acting wantonly or recklessly. Would
it matter that the arrangement was inferior to others applied by other Alliance
forces? Could its actual existence be used as evidence of actual knowledge of
risk, which was then recklessly disregarded through continued transfers even once
the inadequacies of the arrangement became clear?

 

A further question concerns those in the civilian chain of
command who may have issued the instructions that culminated in the transfer to
torture.  Could culpability extend
to these people? Well, if we assume that instructions were issued in Ottawa that
transgress the criminal negligence threshold, at least part of the conduct that
might be construed as criminal negligence took place in Canada. In these
circumstances, it seems plausible that a Canadian court would have jurisdiction
per the Supreme Court’s reasoning in Libman v. The Queen.

 

All of this leads to my view that Canadian criminal law could be
in play in the Afghan detainee controversy, just not the criminal law I hear
most discussed to date. To repeat – I think we need more facts to make a clear-headed
judgment on this issue. And getting to those facts must be an absolute priority.

 

 

 


 

 

 

 

 

[1] See, e.g., R. v. Alcantara, [2009] ABQB 524 at
para. 31 et seq.

 

 

 

 

 

[2] R. v. Ancio, [1984] 1 SCR 225.

 

 

 

 

 

[3] R. v. Hamilton, [2005] SCC 47 at para.
29.

 

 

 

 

 

[4] R v. Helsdon, (2007) 84 OR (3d) 544 (On
CA).

 

 

 

 

Friday
Nov272009

Chronology of Security Certificate Decisions

Cross-Referencing: National Security Law (NSL), Ch. 14.

Over the course of her work for me this Fall, one of my research assistants -- Michelle Lutfy -- has prepared a very useful chronology of security certificate decisions issued between October 2007 and October 2009. I am posting it here in the hope that it might also be of assistance to others. Thanks to Michelle for preparing this document.