Bill C-51 Could Allow the Government to Use Evidence Obtained Through Torture in Secret Security Certificate Proceedings

OTTAWA – The Green Party of Canada is concerned that an obscure provision in Part 5 of Bill C-51, the Anti-Terrorism Act, 2015, could allow the government to use evidence obtained through torture in confidential security certificate proceedings.

“For years now, I have been worried about whether CSIS uses evidence obtained through torture in security certificate cases, especially in Mahjoub,” said Elizabeth May, Leader of the Green Party of Canada and Member of Parliament for Saanich-Gulf Islands. “I remember when Vic Toews rose in the House in Question Period and said: ‘can one safely ignore [evidence obtained through torture] when Canadian lives and property are at stake?’ I am extremely concerned that these changes would make it even harder for a judge to verify if torture was used.”

Clause 54 of C-51 changes the requirements for the Minister to hand over evidence to the judge from “the Minister shall file with the Court the information and other evidence on which the certificate is based” to “the Minister shall file with the Court the information and other evidence that is relevant to the ground of inadmissibility stated in the certificate and on which the certificate is based.”

“Bill C-51 modifies the processes of removing people from Canada by permitting the Minister to withhold evidence relating to the credibility of its source, including evidence that information was obtained by torture,” said Donald Galloway, a Professor at the University of Victoria Law School who specializes in immigration, refugee and citizenship law. “By so doing it impedes a judge’s ability to determine that the evidence was not obtained as a result of torture as required by s.83 of the Immigration and Refugee Protection Act.”

May continued: “I am extremely troubled by the possibility that this subtle change in wording could let CSIS introduce evidence obtained through torture. Almost by sleight-of-hand, this removes the burden of the Minister to give complete context about the reliability of the source and instead only requires the Minister to give the information relevant to the ground of inadmissibility.

“Not only could this allow the Minister to introduce evidence obtained through torture, but the Government could still request that this evidence be introduced without the person involved or their lawyer even knowing. The security certificate regime is a fundamental violation of our constitution. These changes could make a terrible situation worse.”