On rationalizing handing a human being over to likely torture

By Audrey Macklin

This commentary was first published in The Lawyers Weekly, Vol. 26, No. 5, on June 2, 2006.

Canada recently deported Mostafa Dadar to Iran. You may not have not heard of Mostafa Dadar. He is not one of the five men detained on security certificates who are accusing of terrorism. He fled to Canada in 1988 after being imprisoned and tortured as a political opponent of the Iranian regime.

His torture left him a profoundly damaged man, and as sometimes happens, a victim of violence became a perpetrator of violence. In 1996, he was convicted of a very severe aggravated assault and sentenced to eight years imprisonment.

Dadar served his sentence, but instead of being released, he was ordered deported proceeding to the same country where Canadian Zahra Kazemi was tortured and killed in 2003. (In fact, CSIS approached Dadar for information about Iranian torture methods in connection with the Kazemi case). In November 2005, the United Nations Committee Against Torture warned that returning Mr. Dadar to Iran would expose him to a substantial risk of torture, and breach Canada's international obligations under the Convention Against Torture.

A Canadian judge ruled that the decision of the Committee Against Torture did not raise a "serious issue" meriting a stay of Dadar's deportation. At last word, Dadar was interrogated for 36 hours upon arrival in Tehran and released, but ordered to reappear for further questioning.

In March, another Canadian judge prospectively approved the deportation of Mahmoud Jaballah (one of the five security certificate detainees) to Egypt, even though the Canadian government acknowledges that Jaballah would face a substantial risk of torture upon return. In an extraordinary display of deference, the judge accepted as 'not patently unreasonable' the government's claim that the risk posed by Jaballah to national security outweighs the harm of torture to him.

Since much of the evidence against Jaballah (and other security certificate detainees) is secret, it is impossible to assess the validity of the specific allegations against him; in any event, the government's position seems based not on any specific acts of violence committed or orchestrated by Jaballah, but rather on the claim that he fits the profile of a terrorist, and anyone who fits that profile will permanently constitute an extreme threat to national security.

In Suresh, the Supreme Court of Canada considered whether the Canadian Charter of Rights and Freedoms limited the government's discretion to deport those considered a "danger to the security of Canada" .

Argued only a few months after September 11, the decision in Suresh reflected the deep anxiety gripping North America and Europe, and the apparent fragility of the state's commitment to a human right as fundamental as the right against torture.

The court ruled that the Canadian Charter of Rights and Freedoms generally forbids deporting a person to face torture in the name of national security, but left open the hypothetical possibility that there might be extraordinary circumstances warranting an exception. The Court refused to articulate the criteria for an exception, perhaps hoping or anticipating that it would never be necessary to do so.

If so, the Court was mistaken. According to the Canadian government, both Dadar and Jaballah are exceptions, as is each of the five men currently detained on a security certificate.

The phenomenon of terrorism has made torture 'thinkable' to some segments of the public, the state and even the judiciary, and the government has wasted no time in exploiting this moment by expanding the category of people whom it would rather see tortured or killed than alive on Canadian soil. Mr. Dadar is not a security threat. He is a criminal offender who served his sentence. Ordinarily, once an offender has served his sentence, his punishment comes to an end. While Canada certainly can and does deport criminal non-citizens, doing so in disregard of the Convention Against Torture is unprecedented.

Some people might claim that Canada has no obligation to put the security of the state or its population at risk by withholding the removal of non-citizens who pose a threat, no matter what the consequences to those foreigners.

As long as Canadian officials are not the ones holding these men's heads under water until they nearly drown, as long as Canadian officials do not throw the switch sending currents through electrodes attached to these men's genitals, as long as Canadian officials do not grind lit cigarettes into their bodies, or starve, or rape them, Canada's hands are clean. And besides, these are bad and dangerous men we are talking about.

There are at least two ways of rationalizing the act of deliberately handing a human being over to the custody of someone who is likely to torture that person. The first is simply to avoid thinking too much about what torture is, what it entails, and what it does. The more we hear it, the more we use it, the more our moral senses are dulled, and so it becomes just another word that refers to yet another form of unpleasantness.

The second is to acknowledge that torture is an abhorrent violation of fundamental human rights, but to insist that non-citizens forfeit their humanity, and therefore their entitlement to human rights, once we decide that (according to the immigration law standard of proof) there are reasonable grounds to believe that they are sufficiently evil. We used to kill certain criminals here for more or less the same reason, though only after proof of guilt beyond a reasonable doubt and, in any case, we have renounced that practice.

So, either torture isn't really torture, or certain bad people are not really human.

The most that can be said of the Canadian government and the existing legal rules about deportation to torture is that they are honest: There is no hiding behind diplomatic assurances that states who routinely torture people won't torture this person.

There is no semi-clandestine, extra-legal resort to rendition of people to countries that engage in torture. There is no spurious argument about the need to use torture to extract crucial evidence. The claim is simply that expelling a bad person from our territory to someone else's territory may make us safer, and since we can do it, we will.

We have a criminal justice system to deal with human beings (citizens and non-citizens) who violate our criminal law, and anti-terrorism laws to deal with human beings (citizens and non-citizens) who pose threats to national security.

Canada's international and moral obligation not to subject a human being to a substantial risk of torture imposes a constraint, but does not render Canada without options to safeguard public and national security. It is not only the humanity of foreigners that is at stake here. It is our own.