48 OTHMAN (ABU QATADA) v. THE UNITED KINGDOM JUDGMENT comment on reliance on assurances against torture (paragraphs 124 and 125): “A distinction may be drawn between assurances given by a state that it will not apply the death penalty (through a legal process) and assurances by a state that it will not resort to torture (an illegal process). We would signal the difficulty in relying too heavily on assurances by a state that it will refrain from torture in the future when it has engaged in illegal torture or allowed others to do so on its territory in the past. This difficulty becomes acute in cases where torture is inflicted not only with the collusion but through the impotence of the state in controlling the behaviour of its officials. Hence the need to distinguish between assurances regarding the death penalty and assurances regarding torture. The former are easier to monitor and generally more reliable than the latter. In evaluating assurances by a foreign government, the Minister may also wish to take into account the human rights record of the government giving the assurances, the government’s record in complying with its assurances, and the capacity of the government to fulfill the assurances, particularly where there is doubt about the government’s ability to control its security forces.” 2. Mahjoub 153. In Mahjoub v. Canada (Minister of Citizenship and Immigration) 2006 FC 1503, which concerned removal to Egypt, the Federal Court of Canada addressed two issues: whether the Minister should rely on evidence obtained by torture in assessing an individual’s risk to national security and whether it was appropriate to rely on assurances from a country where torture was systematically practiced. For the first issue, the court, having reviewed the relevant Canadian authorities and A and others (no. 2) (see paragraph 136 and 137 above), found that it was wrong in law to rely on evidence likely to have been obtained by torture; however, there had to be a credible evidentiary basis linking torture to the specific evidence at issue in order to justify its exclusion. The balance of probabilities test used in Singh (see paragraphs 139-140 above) was not appropriate in a national security case where the applicant did not see the evidence against him. Instead, where an issue was raised by an applicant offering a plausible explanation why evidence was likely to have been obtained by torture, the decision-maker should then consider this issue in light of the public and classified information. Where the decision-maker found there were reasonable grounds to suspect that evidence was likely obtained by torture, it should not be relied upon in making a determination. For the second, the court found that it was patently unreasonable for the executive decision-maker to have relied on Egypt’s assurances against ill-treatment where she concluded that there was no substantial risk of torture of Mahjoub. It stated: