CAT/C/CAN/CO/7
incorporation of this principle at the federal level could provide significant avenues of
redress for victims pursuing lawsuits against foreign Governments for torture (art. 14).
41.
The Committee once again calls upon the State party to consider amending the
State Immunity Act in order to ensure that all victims of torture or ill-treatment are
able to access remedy and obtain redress, in accordance with the provisions of the
Convention. A supplementary possibility would be for the State party to consider
recognizing the principle of forum of necessity at the federal level. As indicated in its
general comment No. 3 (2012) on the implementation of article 14 (para. 22), the
Committee has commended the efforts of States parties for providing civil remedies
for victims who were subjected to torture or ill-treatment outside their territory. This
is particularly important when a victim is unable to exercise the rights guaranteed
under article 14 in the territory where the violation took place.
Coerced confessions and intelligence information obtained by torture
42.
The Committee takes note of the guarantees set forth in subsection 269.1 (4) of the
Criminal Code, which bars the admission in evidence of any statement obtained by torture
for any purpose, except as evidence that the statement was in fact obtained by torture.
Nevertheless, and bearing in mind its previous concluding observations
(CAT/C/CAN/CO/6, para. 17), the Committee notes with concern that three ministerial
directions published in 2017 to various Canadian security services indicate that information
potentially obtained through mistreatment may not be used to deprive someone of their
rights or freedoms save for cases where the competent authority has authorized such use
because it is necessary to prevent loss of life or significant personal injury. As for the
measures introduced by the State party to enhance accountability and transparency in areas
of national security and intelligence, the Committee notes that the new National Security
and Intelligence Committee of Parliamentarians, created in 2017 with special access to
highly classified information, reports to the Prime Minister and its reports are vetted by the
Government before they are released (arts. 2 ,15 and 16).
43.
The State party should take effective steps to ensure in practice that confessions
obtained through torture or ill-treatment are ruled inadmissible. It should also repeal,
revoke or amend any directive, order or regulation allowing for the use of information
by law enforcement agencies that is known or believed to have been obtained through
torture and/or ill-treatment by a third country. The State party should ensure that the
principle of absolute prohibition of torture is strictly applied in accordance with
article 2 (2) of the Convention, which stipulates that no exceptional circumstances
whatsoever, whether a state of war or threat of war, internal political instability or
any other public emergency, may be invoked as a justification of torture. In that
connection, the Committee draws the State party’s attention to paragraph 5 of its
general comment No. 2 (2007) on the implementation of article 2, in which it states,
inter alia, that exceptional circumstances that cannot be invoked as a justification of
torture also include any threat of terrorist acts or violent crime. The State party
should also ensure that its counter-terrorism legislation provides for an independent
mechanism to review counter-terrorism activities undertaken by the executive.
Counter-terrorism
44.
While taking note of the contents of Bill C-59, which was introduced to address the
human rights shortcomings in the Anti-Terrorism Act, 2015, the Committee is concerned
that under the proposed amendments, the Government would still be able to bar special
advocates – court-appointed lawyers with security clearance – from reviewing classified
evidence on the grounds of national security.
45.
The State party should take the necessary legislative or other measures to
ensure that all counter-terrorism legislation, policies and practices are in full
compliance with the Convention and that adequate and effective legal safeguards are
in place.
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