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 As
the
Globe itself implies, the obligation to
“ensure” that there will in
fact be no torture does not end with
“assurances of humane treatment”
from officials of the receiving
government. The British House of Lords,
acting in its role as highest court, ruled
that the assurances were
adequate in this particular case. In the
past, the European Court of
Human Rights has not always agreed with
British Courts. We don't have
its judgment on this case. Foreigners in
Canada are worse off. They do
not enjoy the possibility of going to any
equivalent arms length court
of human rights - the Inter-American Court
of Human Rights is not open
to them. Even
setting aside the risk of torture, there
are problems with the Globe's
implicit assumption that deportation is
some kind of magic solution to
complex problems surrounding those accused
of terrorist connections.
Deportation can easily be a smoke screen
for governments whose legal
systems would not find enough evidence to
convict a person, to ship the
person to a country whose legal system
could more easily convict. To
charge the person criminally requires
proving the committing of a crime
beyond reasonable doubt – which is
difficult. Deporting
the
person is generally easier. A national
security risk is considered
a legitimate purpose for a deportation. A
plausible government
suspicion of terrorist connections is
taken as equivalent to a risk to
the security of the nation – for me a
questionable assumption. After
deportation, the person is forgotten and
the receiving government may
apply its own judicial or other procedures
in its own time. Risk
of torture is almost the only serious
obstacle to deportation as the
way of dealing with alleged foreign
terrorists. In that case, it is the
person him or herself who has to prove
that he or she would face a
serious probability of torture.
Governments seeking to deal with
alleged terrorists by deportation will
clearly find it easier to obtain
an assurance of humane treatment from the
receiving country than to
ensure that the person will not be
tortured after arrival - their
"ensure" obligation. Courts are the only
thing between the person at
risk and the government desires so they
must be good and they must be
independent. That was the role cast for
the House of Lords in the
British model which attracted the Globe
editorial. Good independent
courts must be willing to put themselves
between the person facing
deportation and the government. They must
be capable of ensuring that,
assurances of humane treatment by foreign
governments notwithstanding,
the person will not be tortured as a
consequence of deportation. It is
not clear Canadian Courts can be relied
upon to invariably carry out
that role. Yet Canada's obligations are
clear - ensuring that the human
person will not be tortured as a
consequence of deportation in high
powered government games must be
paramount. |