Canada, Torture, and the Possibility of Prosecution

Even when torture is tempting, our national values beg us to resist. Canada must now consider prosecuting those officials complicit in the torture of our citizens.

The Obama administration is moving closer to prosecuting U.S. officials for sanctioning torture and other acts of brutality in the name of the “war on terror.” Should we explore doing the same in Canada?

It’s a debate that might come to the fore in short order.

Many suggest that Canadian government officials were likely complicit in the arrest and torture of then-suspected terrorists including Maher Arar, Ahmad El Maati, Abdullah Almalki and Muayyed Nureddin. CSIS has publicly admitted using evidence gathered through torture. It’s possible, even likely, that additional actions will come to light as classified information becomes public.

To some, the moral case for prosecution in Canada might seem more ambiguous than it is south of the border. Canada did not lead the charge – we resisted it. We did not go into Iraq. We did not actively torture suspected terrorists. If you listen to the American right, we even harboured them.

Prosecutions of the Canadian officials might also seem counterproductive. It could dominate politics and public debate – especially if top CSIS or ministers were caught in the loop – stalling important legislative initiatives. It might open the door for politically motivated arrests. With Mulroney in legal limbo, the arrest of other top officials could set an ugly precedent.

And do those involved really deserve to be punished? Should they not be rewarded for their sacrifice? While their records are not perfect, nobody’s are. The number of lives saved through information collected through rendition and enhanced interrogation clearly offsets the pain and suffering, while unfortunate, of a handful of innocent civilians.

But while there will be some that forward these and other similar views, the moral weight of argument in favour of prosecution is greater.

Simply put, our hands are not clean. As much as we might hope this was an America–only problem, there is little question that Canadian officials participated in some form. Yes, we resisted the vast majority of the time. But we should be ashamed of the few instances when we buckled under pressure, casting aside our national and legal values. Just because the U.S. bullied us doesn’t make it right. Peer pressure has never been a valid legal defense.

Yes, high-level arrests could spark political controversy. But bypassing the law for fear of a backlash is cowardly and counterproductive. It would, in the long run, weaken our collective ability to fight for justice in the face of tyranny. It would undermine the rule of law. While the prosecution of high-level officials should never be encouraged, if they broke the law, they broke the law. Surely our democracy is strong enough to withstand the fallout.

It is also strong enough to withstand arguments in favour of torture, even under the famous "ticking time bomb" scenario (where someone in custody knows the location of a bomb that will kill thousands of people in a few minutes, but is refusing to talk). Clearly, there are instances when torture might be tempting. But so much of how we define ourselves as a country begs us to resist. From the Charter of Rights, to our involvement in Afghanistan, to our peace-keeping operations, to our international aid priorities – so much of what we hold dear is destroyed by accepting, even passively, abuse and torture. Further, it would seem to suggest to the regimes we have influenced to stop oppressing their population that, in fact, we had it wrong and they had it right after all.

Perhaps, once the staggering factual and legal complexities involved are sorted through, it will be determined that no Canadian officials should be prosecuted. I hope that’s the case. But these mazes should be navigated not with an eye for history alone, but also to potentially prosecute those involved.

It’s not only just. It would help clear our national psyche of the moral failures that burned words like "detainees," "enhanced interrogation techniques," "water-boarding," "Abu Ghraib," "Gitmo," "rendition," and "Maher Arar" into our collective conscience.