Canada Thinks the US Tortures — At Least in Private

by Kevin Jon Heller

Well, that was quick. One day after the media reported that a training manual prepared by the Canadian government for its diplomats listed the U.S. as a country where foreigners risk being tortured or abused, Canada quickly backtracked, promising to remove the U.S. — along with Israel — from the list:

Canada’s foreign ministry, responding to pressure from close allies, said on Saturday it would remove the United States and Israel from a watch list of countries where prisoners risk being tortured.

Both nations expressed unhappiness after it emerged that they had been listed in a document that formed part of a training course manual on torture awareness given to Canadian diplomats.

Foreign Minister Maxime Bernier said he regretted the embarrassment caused by the public disclosure of the manual, which also classified some U.S. interrogation techniques as torture.

“It contains a list that wrongly includes some of our closest allies. I have directed that the manual be reviewed and rewritten,” Bernier said in a statement.

“The manual is neither a policy document nor a statement of policy. As such, it does not convey the government’s views or positions.”

The document — made available to Reuters and other media outlets — embarrassed the minority Conservative government, which is a staunch ally of both the United States and Israel.

U.S. ambassador David Wilkins said the listing was absurd while the Israeli envoy said he wanted his country removed.

I can only imagine what went on behind closed diplomatic doors. Torture has become quite the hot-button issue lately in Canadian-US relations, beginning with a decision by a Canadian federal judge in November to strike down their “Safe Third Country” agreement on the ground that the U.S. does not comply with its obligations under the Refugee Convention and the Convention Against Torture:

Canada will no longer have the right to turn back asylum seekers at the American border under a federal court ruling that deems the United States not a safe country for refugees – opening the door for a potential flood of northbound claimants.

In a surprise judgment yesterday, the court concluded that the three-year-old Safe Third Country Agreement – which denies refugees who have landed first in the U.S. the right to later seek protection in Canada, and vice versa – breaches the rights of asylum seekers under the United Nation Refugee Convention or the Convention Against Torture.

“The interest at stake is highly important to an individual’s life, safety and dignity,” wrote Justice Michael Phelan.

“I would therefore conclude that the designation of the U.S. as a safe third country leads to a discriminatory result, in that it has a much more severe impact on persons who fall into the areas where the U.S. is not compliant with the Refugee Convention or CAT (Convention Against Torture), as well as discriminating and exposing such people to risk based solely on the method of arrival in Canada.”

Refugees arriving in Canada by air, rather than by land, have continued to have the right to remain in Canada while awaiting a ruling on their claim.

The reasoning issued yesterday, which will essentially nullify the agreement with a final court order expected early next year, is a huge victory for refugee advocates, including the Canadian Council for Refugees, Canadian Council of Churches, Amnesty International and John Doe, a failed Colombian refugee claimant in the U.S., who brought the declaration application to the court.


In his decision, Phelan said the issues over the American authorities’ use of expedited removals and use of detention, combined with concerns over the U.S.’s rigid application of the one-year bar to refugee claims, the provisions governing security issues and terrorism based on a lower standard, called into question whether the U.S. is safe for asylum seekers.

That decision certainly seems sound, given the U.S.’s liberal use of extraordinary rendition. And methinks the U.S. doth protest too much about the list of torturers. After all, it’s not exactly a secret that the U.S. routinely uses “enhanced” interrogation techniques that qualify as torture.

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