In a biting report issued Friday, the United Nations Committee Against Torture condemns what it calls Canadian "complicity" in torture and human rights violations of Muslim men caught up in the post-9/11 security net.
The committee's report condemns Canada's practice, during the Afghan combat mission which ended last year, of handing prisoners over to Afghan security forces despite a "substantial risk" that they would be tortured.
In addition, the UN committee:
- Recommends that Canada promptly approve the transfer of Omar Khadr from Guantanamo to Canadian custody.
- Urges Canada to pay compensation to three men who were the subjects of the Iacobucci Inquiry — Abdullah Almalki, Ahmad Abou Elmaati and Muayyed Nureddin.
- Faults changes to Canada's immigration laws which it says may increase the risk of human rights violations.
Almalki, Elmaati and Nureddin are all suing the federal government, alleging that Canada participated in their "extraordinary rendition" to Syria and Egypt, where they say they were tortured.
Khadr, meanwhile, has applied for return to his native Canada, but Public Safety Minister Vic Toews has not yet approved that transfer.
"The Committee is seriously concerned," the UN panel says, "at the apparent reluctance on part of the State party [Canada] to protect rights of all Canadians detained in other countries, by comparison with the case of Maher Arar." Arar received an apology and $10 million in compensation in 2006, after the O'Connor inquiry found U.S. agents, acting on information provided by the RCMP, took him to Syria, where he was tortured.
Almalki, Elmaati and Nureddin are in the same boat, the UN report says. It condemns what it calls Canada's "refusal to offer an official apology and compensation to the three Canadians despite the findings of the Iacobucci Inquiry."
The 2008 Iacobucci Inquiry found that the actions of Canadian officials contributed indirectly to the torture of the three Arab-Canadian men in Syria.
"Their cases are similar to the case of Arar, in the sense that all of them were subjected to torture abroad and the Canadian officials were complicit in the violation of their rights," the UN report says.
Toronto lawyer Phil Tunley, whose law firm acts for all three men, says the report means that "Canada was complicit in the torture of the three men, which is a serious breach of the convention" — referring to the UN Convention Against Torture.
"They are also saying they are seriously concerned that Canada is still in breach of the convention by not compensating them."
Afghan detainees and refugees at risk
The UN report also looks back at Canada's Afghan mission and concludes that Canadian commanders did not do enough to ensure the safety of detainees.
Canada, it says, "should adopt a policy for future military operations which clearly prohibits the prisoner transfers to another country when there are substantial grounds for believing that he or she would be in danger of being subjected to torture, and recognizes that diplomatic assurances and monitoring arrangements will not be relied upon to justify transfers when such substantial risk of torture exists."
The report also faults changes to Canada's immigration laws proposed by the Conservative government. It says the use of secret evidence against suspected terrorists amounts to a violation of their rights. While it concedes that suspects are entitled to so-called "special advocates" — lawyers who are allowed to see secret evidence — the report says the suspects themselves cannot see it.
"Special advocates have very limited ability to conduct cross-examinations or to seek evidence independently," the report says. "Individuals subject to the security certificates…cannot directly discuss full content with the special advocates. Accordingly they cannot properly know the case against them or make full answer or defence in violation of the fundamental principles of justice and due process."
It adds that "information obtained by torture has been reportedly used to form the basis of security certificates, as evidenced by the case of Hassan Almrei."
The reports finds fault, too, with the government's changes to the law on human smuggling, saying it is "deeply concerned about Bill C-31 (the Protecting Canada's Immigration System Act), given that, with its excessive Ministerial discretion, this Act would…introduce mandatory detention for individuals who enter irregularly the State party's territory; and exclude 'irregular arrivals' as well as individuals who are nationals of designated "safe" countries from having an appeal hearing of a rejected refugee claim. This increases the risk that those individuals will be subject to refoulement."
That's a reference to a principle of international law known as "non-refoulement," which prevents the return of refugees to a place where their lives are at risk.
The UN committee also criticizes Canada for expelling, rather than prosecuting, persons suspected of war crimes. The report "notes with regret the recent initiative to publicize the names and faces of 30 individuals living in Canada who had been found inadmissible to Canada on grounds they may have been responsible for war crimes or crimes against humanity. If they are apprehended and deported, they may escape justice and remain unpunished."
'Complicity in the human rights violation of Omar Khadr'
As for the case of Omar Khadr, the UN panel refers to "Canadian officials' complicity in the human rights violation of Omar Khadr while detained at Guantánamo Bay." It recommends that Canada "promptly approve Omar Khadr's transfer application and to ensure that he receives appropriate redress for human rights violations that the Canadian Supreme Court has ruled he experienced."
Alex Neve, Secretary-General of Amnesty International in Canada, expressed little hope of a positive response to the report from the Conservative government. Nevertheless, he said, "compliance and implementation are crucial" because Canada could not credibly point the finger at other countries' human rights violations while being indifferent to its own.
"That's the model that Canada needs to set for the rest of the world," said Neve.
Neve also pointed to what he sees as a key section of the report, recommending that the UN Convention Against Torture be incorporated in Canadian domestic law. The UN committee urges Canada to "take all necessary steps to ensure that provisions of the Convention that give rise to extraterritorial jurisdiction can be directly applied before domestic courts."
What that means, Neve said, is that there could be no doubt that the Charter of Rights prohibition on "cruel and unusual punishment" applies to the actions of Canadian soldiers abroad.