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