In CF international operations, IHL and IHRL are complementary branches of international law, which define the rules that delineate the line between permissible and prohibited conduct in the context of interrogations. The majority of the general international law rules applicable to interrogations are framed negatively: that is the law states that certain conduct is not permitted. Perhaps the most important rule is, however, a positive one, namely that all persons detained by the CF must be treated humanely. In situations of armed conflict, IHL is applicable as lex specialis, and IHRL as lex generalis. It is however recognized that IHL and IHRL rules emanate from the same basic principle: ensuring respect for human dignity. For this reason, a review of existing IHRL frameworks is of practical and normative significance. In addition, contrary to IHRL, IHL has not benefited from treaty bodies and mechanisms that have supervised its implementation and contributed to its evolution. In this way, while the normative differences between IHRL and IHL are recognized, a review of IHRL principles and jurisprudence will help elucidate IHL obligations and standards.
By way of example, customary and conventional rules of IHL prohibit absolutely, in all forms of armed conflict, inhumane treatment. The Third and Fourth GCs direct that all detainees be treated humanely at all times. Specifically, the killing, torture, or inhumane treatment or the causing of great suffering or injury to persons protected by the GCs are grave breaches of the treaties and constitute war crimes. Customary and treaty-based human rights law also defines concepts and standards which are applicable to interrogations. The jurisprudence in this area explores whether certain techniques are permitted, whether used alone or in combination with other methods. Human rights obligations prohibit torture and other forms of ill-treatment including cruel, inhuman or degrading treatment or punishment.
Although relevant human rights principles “
can only be decided by reference to the law applicable in armed conflict”,13 namely IHL, a state's human rights obligations do not cease to apply during armed conflicts. Human rights obligations are interpreted in light of the lex specialis of IHL. Without addressing the complex and difficult issue of whether other sources of law may be applicable to CF operations, a review of interrogation techniques that have been identified as abusive by international treaty bodies and in domestic courts applying criminal law, is instructive. This review is intended to identify the kinds of treatment which may be consider unlawful.14
I. International Humanitarian Law
A) Protection Under the Geneva Conventions of 1949
As a matter of treaty law and of customary law, Common Article 3 of the 1949 GCs prescribes rights and obligations with respect to any person who is hors de combat and no longer taking an active part in hostilities.15 Common Article 3 requires that all such persons “
shall in all circumstances be treated humanely” and as such sets out a minimum standard for the conduct of interrogations and treatment of detainees. The GCs provide a baseline for broad protections because Common Article 3 articulates a humane treatment standard which applies “
in all circumstances” and “
at any time and at any place whatsoever” .
State obligations enshrined in IHL vary in accordance with the nature of the conflict and the status of the detained individual.16 Principles reflected in the provisions of IHL treaty law may also apply as a matter of customary international law. The minimum standard is one of humane treatment and one can identify the concomitant legal prohibitions which flow from constraints which apply at all times. This principle is reflected in Common Article 3 of the GCs, as well as other provisions of the GCs. The humane treatment principle is commonly understood and accepted as the “
baseline standard of treatment for any person affected by armed conflict who is not, or is no longer, taking part in hostilities.”17
The International Court of Justice (ICJ) has confirmed that the rules relating to the protection of persons hors de combat constitute the “
minimum yardstick” in so far as they reflect “
elementary considerations of humanity”18 The importance of this basic principle is buttressed by the fact that the humane treatment principle enshrined in Common Article 3 is further emphasized throughout the provisions of the four GC's. The International Committee of the Red Cross (ICRC) has, in its Commentary on the GCs, emphasized that “
the obligation to grant protected persons humane treatment is in truth the leitmotiv of the four Geneva Conventions.”19
In addition, it is clear that there can be no derogations from the dictates of humanity. As such, this principle is fundamental because it is valid at all times and must be respected notwithstanding any military or other security imperative.
The GCs do not explicitly define humane treatment or inhumane treatment.20 A sense of the meaning of these terms, however, is developed through reference to positive and negative obligations relating to the treatment and interrogation of persons.21 In this respect, the specific provisions of the GCs and Additional Protocols I22 (API) and II23 (APII) further particularize the content and scope of the standard of humane treatment. As is discussed below, both the GCIII, relative to prisoners of war,24 and GCIV, relative to the protection of civilian persons in time of war,25 elaborate on the principle of humane treatment and explicate the standard of treatment and concomitant prohibited conduct.
With respect to the issue of the interrogation process itself, the GCs prohibit the use of coercion to obtain information. This aspect of the protective scope of the GCs complements the general obligation to treat detainees humanely. Again this term is not defined within the provisions of the GCs but it is clear that coercion, whether physical or moral, is equally prohibited.
B) Humane Treatment
i) Detainees Must Be Treated Humanely:
Most of the IHL rules relating to interrogations are negative ones that prohibit a certain type of treatment. The one exception is the positive requirement to treat all detainees humanely.26 This positive obligation permeates the provisions and protections afforded in the four GCs.
In the prisoner of war (PW) context, the general obligation is simply stated: “
Prisoners of war must at all times be humanely treated.”27 The ICRC Commentary to the GCs explains that the drafters added "at all times" to prevent any derogation from the principle of humanity by reference to the exigencies of the conflict.28 Simply put, the notion of "military necessity" cannot be invoked to modify the standard of treatment.
The text of Article 13 of GCIII, further provides that PWs must be protected, "at all times", “
particularly against acts of violence or intimidation and against insults and public curiosity.” The article goes on to specify types of treatment that are prohibited, and others that are mandated. In the ICRC's view, the “
principal elements of humane treatment” as listed in Article 13 are as follows:29
- any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited;30
- no prisoner of war may be subjected to physical mutilation;
- no prisoner of war may be subjected to […] medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest;
- prisoners of war must at all times be protected, particularly against acts of violence; intimidation;31 and insults and public curiosity;32
- measures of reprisal against prisoners of war are prohibited.
GCIV provides that "protected persons" benefit from the same rule.33 Civilians must be treated at all times with humanity. The wording of Article 27 of GCIV can be used to clarify the meaning of humane treatment within the GCs. Article 27 recognizes that “
protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and custom;” and also provides that “
they shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.” The ICRC Commentary to Common Article 3 states that Article 27 conveys “
the sense in which 'humane treatment' should be understood.” Again, this article repeats prohibited acts contained in the articles mentioned above, but we may add to the list threats of violence. In addition, API Article 75, also provides that persons covered by that article, namely every person detained, regardless of status, “
shall be treated humanely in all circumstances.”34
The protection guaranteed by Common Article 3 of the GCs also includes freedom from “
violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” as well freedom from “
outrages upon personal dignity, in particular humiliating and degrading treatment”.35 This non-exhaustive list of general acts is clearly demonstrative of conduct which is prohibited on the basis that they are inhumane. Torture constitutes a grave breach of the Conventions.36
There are several express references in the GCs prohibitions which proscribe the use of torture.37 The use of torture is a grave breach of all four of the GCs,38 is a crime against humanity,39 and a war crime.40 Common Article 3 prohibits the use of torture in any circumstance but does not actually define what constitutes torture.41 There is no definition of torture within IHL, however, the ICRC's Commentary offers the following: “
The word torture refers here especially to the infliction of suffering on a person in order to obtain from that person, or from another person, confessions or information.”42
The law in relation to PWs includes the rule that “
No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever.”43 In the context of protected persons, a blanket prohibition on causing “
physical suffering or extermination” includes a specific prohibition on murder, torture, corporal punishment, mutilation, medical experimentation, and “
any other measure of brutality whether applied by civilian or military agents.”44 API contains a set of rules applicable to “
persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment.” One rule is the prohibition on “
torture of all kinds, whether physical or mental.”45 The wording of the article makes it clear that torture is considered a type of “
violence to the life, health, or physical or mental well-being of persons.” Accordingly, API Article 75(2) prohibits conduct short of torture as well, including, expressly, "corporal punishment."
iii) Cruel or Inhuman Treatment:
Common Article 3 prohibits "cruel treatment" as a type of “
violence to life and person.”46 GCIII sets out rules specific to PWs who are punished by the detaining power for violations of law. One such rule prohibits “
any form of […] cruelty.”47 A similar rule for internees provides that “
all forms of cruelty without exception are forbidden.”48 A rule for APII non-international armed conflicts prohibits "cruel treatment."49
GCIII also limits disciplinary sanctions against PWs, including an absolute prohibition on those that are “
inhuman, brutal or dangerous to the health of” PWs.50 A comparable rule exists for disciplinary sanctions against internees.51 In certain cases IHL permits derogations from the protections afforded to a protected person detained as a spy or saboteur or definitely suspected of hostile activities. However, in all cases such persons must “
be treated with humanity.”52 It is a grave breach to commit an act of "inhuman treatment" against PWs,53 protected persons,54 wounded or sick persons,55 or those wounded or sick at sea, or shipwrecked.56 The Rome Statute makes committing acts of "inhuman treatment" a war crime.57
The ICRC Commentary to the GCs has considered the question of which ill-treatment or abusive practices, other than torture, can be classified as inhuman and concluded that it is not limited to treatment affecting a detainee's physical integrity or health; “
the aim of the Convention is certainly to grant prisoners of war in enemy hands a protection which will preserve their human dignity and prevent their being brought down to the level of animals.” As such, measures which would cause “
great injury to their human dignity” should be considered as inhuman.
Common Article 3 prohibits “
humiliating and degrading treatment” as part of the class of treatment referred to as “
outrages upon personal dignity.”58 The ICTY in the Kunarac case considered the criteria to be used as a basis for measuring the humiliating or degrading character of an act or omission. The Trial Chamber held that the humiliation of the victim must be so intense that any reasonable person would be outraged: outrages upon personal dignity are constituted by “
any act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity.”59
C) Questioning Persons in Detention
Interrogation is explicitly considered in Article 17 GCIII and in Article 31 GCIV. GCIII, applicable to PWs, prohibits the use of any form of coercion while GCIV prohibits the use of physical or moral coercion against civilians.
More specifically, Article 17 GCIII reads: “
No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever.” In addition, a PW who refuses to answer may not be “
threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind”. Article 99 also provides as follows: “
No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused.”62 The prohibition in Article 17 is comprehensive. Commentators observe that the language of its predecessor, Article 5 of the 1929 Convention, prohibited coercive interrogation only as it related to information “
relative to the condition of their army or their country”. The drafters of the 1949 Convention clearly expanded the scope of the prohibition by proscribing all forms of coercion relating to information of any kind whatever.63
The prohibition relative to protected persons reads: “
No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties.”64 This prohibition “
covers all cases, whether the pressure is direct or indirect, obvious or hidden” and “
for any purpose or motive whatever.”65 Article 32 further requires that protected persons be protected from murder, torture, corporal punishment, mutilation, medical experimentation, and any measures of brutality. Article 33 supplements these prohibitions by providing that “
all measures of intimidation or of terrorism are prohibited.”
Coercion is not expressly prohibited under Common Article 3. It is suggested that the type of activity that might qualify as coercion is otherwise prohibited under Common Article 3 as inhumane, or particularly as forms of "cruel treatment" or "degrading treatment."66
D) Coercion in the Context of Interrogations
There is no single or comprehensive definition of coercion which can be used to classify which acts are clearly impermissible and prohibited.67 There are however general guidelines which are helpful: within the context of the GCs, torture is considered a form of coercion, but there are coercive activities, short of torture, that are nonetheless prohibited. In addition, as was detailed above, the meaning of coercion within IHL is linked to the principle of humane treatment. In this respect, coercion is not limited to the use of physical force. Psychological coercion and efforts to break down detainees are considered unlawful. The definition provided in the US Army Field Manual is instructive:
Certain prohibited physical coercion may be obvious, such as physically abusing the subject of the screening or interrogation. Other forms of impermissible coercion may be more subtle, and may include threats to turn the individual over to others to be abused; subjecting the individual to impermissible humiliating or degrading treatment; implying harm to the individual or his property. Other prohibited actions include implying a deprivation of applicable protections guaranteed by law because of a failure to cooperate.68
Differentiating coercive techniques from non-coercive ones can be difficult in practice. Interrogations measures which involve psychological pressures are permissible yet those which are inherently coercive are unlawful. To determine where the line is drawn in a particular case, it can be helpful to consider the effect they produce on the person interrogated. Coercive interrogation techniques compromise a detainee's free will. It has been stated that “
the essence of coercion is the compulsion of a person by a superior force […] to do or refrain from doing something involuntarily.”69 In this connection, we can differentiate between activity that robs a person of free will, and activity that merely causes a person to reevaluate a course of action.70 The latter is not prohibited; at least to the extent that it does not meet the definition of coercion.71 Put another way, “
the pertinent question appears to be whether the person subject to treatment designed to influence his conduct is able to exercise a choice and complies willingly or has no choice other than to comply.”72 In this respect coercion is not defined as influencing the detainee's choice as to whether or not to provide information but rather removing the free will to chose.
Another possible definition of coercion is “
the use of physical or mental pain or intimidation to compel an unwilling detainee to provide information.”73 If such an approach is used, the issue then becomes determining the degree of "pain or intimidation" that is legally significant as this will differentiate techniques which are lawful from those that are coercive and thus unlawful.74
The GCs are clear about the prohibition of torture and other forms of inhumane or degrading treatment and specifically prohibit the use of any form of coercion in the context of interrogation. So long as these provisions of the GCs are not violated, an interrogation approach which involves a ruse or deception is lawful.
The idea of coercive activity is not that a statement is made by a person who would rather not have had to make it, but rather that the person felt that he or she had no choice but to comply. Viewed negatively, coercion is not “
trickery, deception or manipulation,” which are prima facie legal insofar as they do not involve inhumane tactics.75 Inherently coercive measures are thus techniques which result in an "externally" sourced pressure on the detainee, the upshot of which is that the detainee has no alternative but to choose to cooperate. Coercion is also distinguished from incentives. In most circumstances, influencing a detainee's choice by offering incentives and privileges would thus not be considered coercion because the detainee remains free to chose whether to cooperate.76 It has been argued that where cooperation is obtained as a result of a desire on behalf of the detainee to obtain relief from a particular situation (e.g. infliction of suffering), the cooperation has been coerced. Incentives involve situations where a non-legally mandated privilege is withheld or withdrawn as a result of noncooperation and can also include situations where a detainee can gain benefits and advantages or privileges as a result of cooperation. So long as the consequence of non-cooperation does not involve the imposition of a standard of treatment which falls below the baseline required by the provision of GCIII or GCIV, the use of incentives can be considered legitimate tactics.77
E) Coercive Conduct in the Context of Police Interviews
As stated above, this paper is concerned with operationally-oriented interrogation, namely intelligence gathering, and not with interrogation for the purpose of criminal investigation. There are different rules which are applicable to each context. There are however parallels and similarities between the two types of interrogation.78 For this reason it is useful to review the domestic criminal rules which are applicable to police interviews. For our purposes, these aspects of Canadian criminal law are relevant to the issue of coercion because Canadian courts focus on police conduct and the conditions of the interview process which affect a suspect's free will.79 In the criminal law context, there are of course additional rules and factors which affect the admissibility of statements which are not relevant to the issue at hand. We can expect that not all cases of inadmissibility in the criminal law context may raise concerns in the international intelligence gathering context. However, there are many cases where, in a criminal case, evidence is ruled inadmissible because it is obtained as a result of conduct or practices which would also be prohibited in the context of international military intelligence interrogations. In this respect, a review of the confession rule provides useful insights.
When dealing with interrogations in the criminal law context, the Supreme Court of Canada has defined the concept of "voluntary statement".80 This body of law explicates the circumstances in which a detained suspect is denied a meaningful choice when deciding whether to make any statements be they inculpatory or exculpatory.81 In determining whether a detainee is provided an effective choice, the focus of the court's inquiry is on whether police conduct was proper.82 At one end of the spectrum is improper police persuasion and pressure which results in an individual being totally broken down by the interrogation83 and at the other a police officer merely influencing a suspect to change his/her mind to provide a statement.84 As is the case in the context of intelligence gathering interrogation, it is clear that the domestic criminal law does allow the police to attempt to influence the behaviour of a detainee. In this regard, not all means used to persuade an accused to make an admission are improper. The Supreme Court of Canada jurisprudence recognizes that police questioning is a legitimate tool of investigation.85
The rule of general application, known as the voluntariness rule (also referred to as the confessions rule), can be stated as follows: Statements are excluded whenever improper conduct is detected. The roots of the confessions rule is linked to a very real concern that a confession sometimes obtained by torture or threats could well be unreliable. The confessions rule is a rule of evidence insofar as it represents an exception to the hearsay rule. Over the years, forms of compulsion other than torture were recognized as being just as compulsive, just as insidious and just as abhorrently unfair. Efforts by the police to convince detainees to make admissions become improper only when pressure “
standing along or in combination with other factors, [is] strong enough to raise a reasonable doubt about whether the will of the subject has been overborne”.86
In R. v. Hodgson, Justice Cory, writing for the majority of the Supreme Court of Canada, reviewed the rationale for the confession rule and reiterated its significance. A statement, which is prompted by threats or inducements, raises issues of reliability. Confessions are admitted as an exception to the hearsay rule under which they are otherwise presumptively inadmissible. Reliability concerns with respect to this type of evidence is thus a predominant consideration in a Court's decision whether to admit a statement into evidence as an exception to the hearsay rule. The second rationale for the rule relates to trial fairness. If the circumstances surrounding the statement raises issues of reliability, trial fairness is engaged. This is again related to the question of reliability because admitting unreliable hearsay statement into evidence may affect the fairness of the trial.87 The two rationales “
blend together so as to ensure fair treatment to the accused in the criminal process by deterring coercive state tactics.”88
The law in Canada as it relates to the voluntariness of a suspect's statement was recently reviewed by the Supreme Court of Canada in R. v. Oickle. Writing for the majority, Justice Iacobucci, states that a trial judge should strain to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession's voluntariness. The relevant factors to be considered include threats or promises, oppression, the operating mind requirement and police trickery. If police interrogators subject a detained person to intolerable conditions or offer inducements strong enough to question the reliability of the statement, it should be excluded. Trial judges must consider the entire circumstances surrounding the confession to make their decision.89
Most recently in R. v. Singh, the Supreme Court of Canada reaffirmed its position with respect to the voluntariness rule. During the course of two police interviews the accused stated on many occasions that he did not want to talk about the incident. The interviewing officer persisted in trying to get him to make a statement. The trial judge reviewed all the circumstances surrounding the interrogation and it was admitted into evidence. Justice Charron, writing for the majority, re-iterated the Court's view that “
the focus of the trial judge's inquiry is on the conduct of the police and its effect on the accused's ability to exercise his or her free will.”90 While detainees cannot be compelled to speak once they have asserted their right to silence, the police are not required to refrain from further questioning the detainees.91 Justice Charron affirmed that the police may use legitimate means of persuasion to break a detainee's silence.
i) Threats or Promises:
The confessions rule provides that the Crown must prove that the statement was not obtained by fear of prejudice. Fear of prejudice relates to express or implied threats that would be carried out if the suspect does not cooperate and speak. The Court in Oickle provided a non-exhaustive list of "fear of prejudice" inducements. Any confession that is the product of outright violence is inadmissible. Where there is evidence that the accused was assaulted by police during an interrogation, the conduct is considered so egregious that it is assumed that the assaultive behaviour could impact on the will of the suspect for some time (even hours) after.92 Threats of violence have an equally coercive effect.93
Promises of leniency (whether with respect to the suspect or a third party) are equally powerful motivators which can be strong enough to induce false confessions. This is a danger that the Court is seeking to avoid. A statement may be induced where the police officer offers the suspect a threat or promise in exchange for a confession. In the context of such a quid pro quo, the courts will consider whether the promise made by the police is such that the suspect will say “
whatever [is] needed, true or false”.94 With respect to the quid pro quo it must be established that the inducement caused the suspect to give a statement. In this respect not every inducement held out by a police officer will cause a statement to be inadmissible.
Conduct proscribed by the confessions rule is focused on whether the accused was able to make a choice of whether to speak or remain silent. The issue is not whether the accused made a wise choice or whether the choice was in his or her best interests. The inquiry focuses on the effect of police conduct on the accused's choice – whether actions of police deprive the accused from making an effective choice by reason of coercion, trickery or misinformation. Conduct is prohibited only if it has the effect of depriving an accused of an effective choice. Similarly, an offer of assistance may undermine the voluntariness of the statement where it results in the loss of an accused's meaningful independent ability to choose whether or not to speak.
The overall analysis focuses on the voluntariness of the statement and considers whether, as a result, its patent reliability is jeopardized when the strength of the inducement offered as a quid pro quo is sufficient to raise the possibility of a false confession. The Court's concern, of course, is ultimately with the reliability of the admission. Where the will of the suspect is overborne in this context he or she is willing to say whatever it takes. The actions of the person in authority are thus deemed to have had a coercive effect. Where there is a connection between the promise of help and the statement itself, the inducement is likely to result in the exclusion of the statement.95 Where the police excite a hope of advantage, for example promising an accused will be released, or charges will be reduced, if he or she makes a statement. On the other hand, where an accused gives a statement simply in the hope that he will be released, there is no inducement and the statement will be held to be voluntary. The lynchpin is the quid pro quo. Causation is a central consideration. The police conduct must cause the accused to make the statement, not simply cause the accused to choose to make a statement. The nature and intensity of the pressure is therefore a relevant consideration. The use of fear to induce an accused to speak is definitely an unlawful means to obtain a statement.
Any form of coercion is contrary to IHL and consequently prohibited. Whether information obtained through promises or hope of advantage (likely inadmissible in the context of criminal proceedings) are also prohibited in an intelligence gathering context is unclear. With respect to intelligence interrogations, the concern is not necessarily with the broadly understood concept of voluntariness as applied in the criminal law context. The prohibition relates to coercion. There is scope for an argument that the notion of a voluntary statement is broader than a non-coerced statement. That said, while an intelligence operation is not concerned with "false" confessions, there is an issue of reliability of information which may militate in favour of adopting the voluntariness standard.
In addition to inducements, threat of violence, or indeed actual violence, a confession may be "tainted" where the atmosphere is deemed to be oppressive. The coercive effect of an "atmosphere of oppression" can be strong enough to overbear the will of the subject.96 Oppression clearly has the potential to induce a suspect to divulge information. Oppression is therefore a psychological as opposed to physical mechanism that can induce a confession.
Oppressive conditions and circumstances have the potential to induce a detainee to speak where the detainee provides a statement to escape the inhumane conditions. In Oickle, the Court identified this as a stress-compliant confession.97 Factors which are relevant to the court's assessment of oppression include: deprivation of food, clothing, water, sleep, or medical attention, denying the suspect access to legal counsel and excessively aggressive, intimidating questioning for prolonged periods.
R. v. Hoilett provides a compelling example of oppression.98 Mr. Hoilett, a detained person who was under the influence of crack cocaine and alcohol, was left naked in a cold cell for two hours before being provided light clothing. His cell contained only a metal bunk to sit on. The bunk was so cold that he had to stand up. He was awakened in the middle of the night for the purpose of interrogation. During the course of his interview he nodded off several times. His requests for warmer clothing and a tissue to wipe his nose were refused. While he admitted knowing that he did not have to talk, and that the officers had made no explicit threats or promises, he hoped that if he talked to the police they would give him some warm clothes and cease the questioning.99
When dealing with interrogations, we may adopt a similar reasoning and consider that an atmosphere of oppression created by the above-noted factors would amount to coercion and be prohibited under IHL.
iii) Police Trickery:
In conducting interrogations, police may resort to tricks or other forms of deceit. It is not per se improper for the police to lie.100 The courts have been cautious not to unduly limit police techniques. In some circumstances, however, the use of police trickery may render an otherwise admissible statement inadmissible. The doctrine is related to the issue of voluntariness but the inquiry is not related to a finding that the will of a detainee was overborne. Rather, the objective is to maintain the integrity of the criminal justice system.101 The test to be applied is whether the police conduct is so appalling as to shock the conscience of the community.102
The use of non-existent or fabricated evidence may, when combined with other factors, affect the determination of whether a confession is voluntary. Standing alone, however, confronting a suspect with fabricated evidence will not likely be deemed impermissible conduct.103 Where a suspect is confronted with enough false evidence to give rise to a feeling of hopelessness, this may be sufficient to break the will of the suspect and induce a statement.
F) Coercive Activity
The idea of coercive activity is absolute: it is not that a statement is made by a person who would rather not have had to make it, but rather that the person felt, as a result of the interrogator's behaviour, that he or she had no choice but to comply. As the above discussion suggests, Canadian domestic law with respect to permissible conduct in the area of coercive interrogation practices is primarily concerned with the reliability of confessions. Indeed, as this paper is intended to explore the legal framework(s) that define the limits of lawful interrogation techniques and practices, it is of interest to consider factual situations which have been considered by Canadian courts, despite the fact that the purposes for which domestic courts have conducted their analysis and the nature of the remedies sought may be different. The case law reflects an understanding that false confessions may result when an interrogator successfully convinces a suspect that an admission of guilt is, in all the circumstances, the only option. Interrogation techniques that utilize deception and psychological pressures to persuade a suspect to admit guilt are carefully scrutinized to determine their effect on an accused.104
In the intelligence gathering context, the concern of a false confession is not at the forefront. However, the reliability of the information received is of great importance. In this respect, experts suggest that it is imperative to analyze the information received from the detainee to determine whether it was contaminated by outside sources, including police interrogators.105 The GCs do not impose limits on the subject matter about which a PW, or person of another legal status, may be questioned so long as an answer is not compelled by unlawful means. The GCs are clear about the prohibition of many forms of inhumane treatment and specifically prohibit the use of any form of coercion. Providing these provisions of the GCs are not violated, an interrogation approach which influences a detainee's choice is lawful. The line between persuasive conduct and coercive conduct is not easily defined. The guiding principle is that coercive conduct is such that a detainee's free will to choose whether or not to speak has been overborne. Influencing the detainee's choice though logic or other manipulation is lawful.
The use of any physical force and all acts of violence used to compel a detainee to cooperate and provide information are clearly prohibited by law. Certain methods will clearly fall within this category and be easily identified as prohibited (i.e. assaults, threats, actual or implied). Interrogation tactics that aim to persuade or manipulate a detainee require close consideration. Whether stress, disorientation, and duress techniques (i.e. sleep deprivation, hooding, stress position) constitute some form of physical or mental coercion, will be considered further below.
II. International Human Rights Law
Although the scope of IHRL obligations and rights is to be defined in accordance with IHL standards, international human rights obligations are not displaced in times of conflict. Rather, human rights norms and principles are interpreted in light of the law applicable in armed conflict, the lex specialis of IHL.106 The continued applicability of IHRL in situations of conflict suggests that the standard of humane treatment, applicable to CF interrogations under IHL treaty and customary law, may be informed by the prohibition against torture, cruel, inhumane or degrading treatment as defined in IHRL.
The prohibition of the use of torture and other forms of ill-treatment is universally recognised and is enshrined in all of the major international and regional human rights instruments. The foundational document in this respect is the Universal Declaration of Human Rights.107 Article 5 of the Declaration provides that “
[no] one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. The International Covenant on Civil and Political Rights (ICCPR) incorporates the same prohibition in Article 7 which utilizes the exact same language.108 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) also prohibits torture and other forms of ill-treatment.109
Although international courts, treaty monitoring bodies, and commentators more generally, have recognized a theoretical distinction between torture and other forms of ill-treatment, a doctrinal approach to defining the distinction has proven difficult.110 The CAT, for example, provides no definition of ill-treatment, nor any criteria to distinguish it from torture. In any event, the distinction is of no great practical significance because both torture and other forms of ill-treatment are prohibited under both IHL and IHRL regimes.111
i) Torture Under International Law:
There are express prohibitions on the use of torture in human rights law. Under both the ICCPR and the CAT, the prohibition on torture may not be derogated from under any circumstances.112 All forms of torture are captured under this prohibition. In particular, the impugned activity need not be a direct attack on physical integrity to be torture; proscribed methods of interrogation include those that cause severe pain and suffering even though no actual bodily harm or injury is caused.
As was stated above, under IHL, torture is a form of coercive treatment. Under IHRL, torture is generally considered to be a form of “
cruel, inhuman or degrading treatment or punishment.”
In its 1975 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment,113 the UN General Assembly gave the following definition of torture:
torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. It does not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners.114
The CAT essentially tracks the 1975 Declaration in its definition of torture:
The term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 115
There are no circumstances which may be invoked to justify the use of torture.116 The absolute nature of the prohibition of torture under treaty law is reinforced by its jus cogens status under customary international law.117 Its jus cogens status connotes the fundamental, peremptory character of the norm, which is, in the words of the International Court of Justice, "intransgressible."118
The Rome Statute contains the following definition of torture, which in all relevant respects is identical to that from the CAT:
"Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.119
In its jurisprudence, the ICTY has incorporated the following constituent elements in the definition of torture: (i) consists of the infliction, by act or omission, of severe pain or suffering, whether physical or mental; in addition (ii) this act or omission must be intentional; (iii) it must aim at obtaining information or a confession, or at punishing, intimidating, humiliating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person.120
Torture involves “
severe pain or suffering, whether physical or mental.”121 The "severe pain or suffering" necessary for torture can be either physical or mental. The test for whether or not activity amounts to torture refers to the effect the activity has on the interrogated person. The definition leads directly to the question of how severe the pain or suffering must be before it will be considered the result of torture. It is extremely difficult to determine the threshold,122 but we have general guidance. Permanent injury is not required.123 The matter of severity will be examined both objectively and subjectively.124 As a corollary to this latter point, because the analysis will involve consideration of the interrogated person's pain and suffering, “
whether a particular practice amounts to torture can vary widely from case to case.”125 It is the whole of treatment that is considered, and not particular activity in isolation. Accordingly, the combination of individual activities that may not on their own amount to torture could be considered as such, as could the use of a prima facie non-torturous technique used for an amount of time such that the resultant pain or suffering exceeds the torture "threshold."126
Torture expressly “
does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”127 It is clear, however, that in no circumstances will activity resulting in "severe" pain or suffering be lawful, as amounting to torture.
Coercive interrogation techniques which are routinely used to extract confessions were considered by the UN Special Rapporteur on Torture in his 2004 report.128 He determined that threats and intimidation can amount to torture: “
It is my opinion that serious and credible threats, including death threats, to the physical integrity of the victim or a third person can amount to cruel, inhuman or degrading treatment or even torture, especially when the victim remains in the hands of law enforcement officials.”129
The CAT also imposes specific obligations on states parties. These include taking effective legislative, administrative, judicial or other measures to prevent acts of torture. No exceptions, including emergencies or war, may be invoked as justification for torture.130 Article 3(1) of the CAT provides that no state party shall “
expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”131 Article 4 requires that states parties make all acts of torture criminal offences, including attempts and complicity. States parties must also assert jurisdiction over torture offences when they are committed in their territory, when the alleged offender is one of their nationals, and when the alleged offender is within their territorial jurisdiction and not extradited.132
Obligations on states parties also include limiting the use of incommunicado detention; ensuring that detainees are held in places officially recognized as places of detention; ensuring the names of persons responsible for their detention are kept in registers readily available and accessible to those concerned, including relatives and friends; recording the time and place of all interrogations, together with the names of those present; and granting physicians, lawyers and family members access to detainees.133
Article 12 of the CAT obliges states to ensure that prompt and impartial investigations are initiated whenever there is reasonable ground to believe that torture has been committed “
in any territory under its jurisdiction”. Additionally, Article 13 obliges states to investigate complaints by alleged victims of torture promptly and impartially. In Aksoy v. Turkey, the European Court of Human Rights (ECrtHR) considered the scope of this obligation and found that “
where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation as to the cause of the injury, failing which a clear issue arises under Article 3 of the Convention.”134
The ECrtHR went further in Assenov and others v. Bulgaria by concluding that a violation of Article 3 of the European Convention on Human Rights (ECHR) had occurred not as a result of any ill-treatment per se but because of the failure to carry-out an effective, official investigation into the allegations of ill-treatment: “
Where an individual has an arguable claim that he has been ill treated in breach of Article 3, the notion of an effective remedy entails, in addition to a thorough and effective investigation as required also by Article 3, effective access for complainant to investigatory procedure and payment of compensation where appropriate.”135
CAT provisions also speak to the inadmissibility in court of statements gained through torture.136 States parties must also ensure that education and information regarding the prohibition of torture is included in the training of law enforcement personnel (civil and military), medical personnel, public officials and other appropriate persons.137
ii) Torture Under Canadian Law:
There is reference to the term torture in four Canadian Federal Statutes: The Criminal Code; Crimes Against Humanity and War Crimes Act (2001); Geneva Conventions Act (1985); and Immigration and Refugee Protection Act (2001).138 What follows is a discussion of the legal aspects of the torture offence as defined in the Canadian Criminal Code.
In order to comply with its IHRL obligations generally and, in particular the CAT, section 269.1 of the Criminal Code incorporates into Canada's domestic criminal law the offence of torture.139 This section creates and defines the offence of torture,140 eliminates the defence of superior orders and the exceptional circumstances (e.g. public emergency) defence.141 In addition, it creates an evidentiary rule which bars the introduction of any statement obtained as a result of the commission of an offence under the section.142
The CAT definition of torture has been incorporated almost verbatim at section 269.1 of the Criminal Code of Canada. "Torture" is defined in subsection 269.1(2) as “
any act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person”. The definition of torture requires that the conduct be for a proscribed ulterior purpose or “
for any reason based on discrimination of any kind”. The three purposes listed include “
(i) obtaining from the person or from a third person information or a statement, (ii) punishing the person for an act that the person or a third person has committed or is suspected of having committed, and (iii) intimidating or coercing the person or a third person”.143 In addition, Section 269.1(1) provides that the offence of torture may only be committed by a defined class of persons, specifically, an official, or person acting at the instigation of or with the consent or acquiescence of an official. Conduct which arises from, is inherent in, or incidental to lawful sanctions is expressly excluded.
The mental element required for section 269.1 was considered in R. v. Rainville: “
torture involves a subjective mens rea [and] specific intent, i.e. the pursuit of an aim or precise consequence, in this case the intent to inflict "acute physical or mental pain or suffering".”144 Finding Rainville guilty of torture, among other offences, the court stated:
[The victim] was subjected to this scenario of threats and intimidation for one solid hour. A scenario designed by Michel Rainville and executed by him or under his direction. Did the latter intend to inflict "severe pain or suffering, physical or mental" to [the victim]? Physical, probably not but mental, without a doubt. His goal was to instill unbearable fear in [the victim], to the point where he would yield and tell him where the key was located.145
In Suresh, the Supreme Court of Canada noted that torture has as its end the denial of a person's humanity. It is fundamentally unjust because it induces fear and its consequences are devastating.146
Other Criminal Code provisions concerning offences against the person may be invoked in respect of certain forms of cruel, inhuman or degrading treatment or punishment falling short of torture.147
B) Cruel, Inhuman, or Degrading Treatment or Punishment
The phrase “
cruel, inhuman or degrading treatment or punishment” is a term of art from human rights law. This phrase refers to a range of ill-treatment which is proscribed in international and regional treaties. As mentioned, the ICCPR contains a rule that “
no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”148 The CAT also proscribes rules for states to suppress such treatment or punishment.149 The rule against cruel, inhuman or degrading treatment or punishment is non-derogable under the ICCPR,150 but there is no comparable non-derogation provision in the CAT.151
As with the notion of torture, inhuman or degrading treatment or punishment embraces mental or psychological illtreatment as well as physical abuse. It covers the conditions of detention, it includes discrete incidents as well as the totality of circumstances.
International adjudicative bodies have defined inhumane treatment in terms relative to torture. The ITCY, for example, has observed, that “
Inhuman(e) treatment has been defined as treatment which deliberately causes serious mental and physical suffering that falls short of the severe mental and physical suffering required for the offence of torture. Furthermore, the offence need not have a prohibited purpose or be committed under official sanction as required by torture.”
There is no definition of the term “
cruel, inhuman, or degrading treatment or punishment” in human rights law. The Human Rights Committee (HRC) has stated the following respecting the ICCPR's prohibition:
The Covenant does not contain any definition of the concepts covered by article 7, nor does the Committee consider it necessary to draw up a list of prohibited acts or to establish sharp distinctions between the different kinds of punishment or treatment; the distinctions depend on the nature, purpose and severity of the treatment applied.152
Nonetheless, the HRC has made important pronouncements which explicate the scope of Article 7 protections. In this respect, the HRC has said that “
the aim of the provisions of article 7 […] is to protect both the dignity and the physical and mental integrity of the individual.”153 As such, Article 7 proscribes conduct that causes either physical or mental suffering or pain. No derogations are permissible with respect to these obligations and the HRC has affirmed that even situations of public emergency do not provide an exception to the prohibitions contained therein and that there are no exceptions and no justifications to excuse violations.154
The proscribed conduct outlined in Article 7 of the ICCPR must be read in concert with Article 10 which enshrines the following positive obligation: “
All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”155 In this respect, the HRC has explained that Article 10 imposes positive obligations on States parties with respect to persons who are particularly vulnerable because they have been deprived of their liberty. Coercive interrogation techniques including death threats156, solitary confinement157, sleep deprivation, hooding, and shaking, used alone or in combination constitute a violation of Article 7.158
The ICTY has offered the following definition: “
Inhuman treatment is treatment which deliberately causes mental and physical suffering that falls short of the severe mental and physical suffering required for the offence of torture.”159
C) Regional Instruments
i) American Convention on Human Rights:
The American Convention on Human Rights (ACHR) also contains a specific prohibition of torture, cruel, inhuman or degrading treatment or punishment.160 In addition, the provisions of the ACHR specify that detained persons must be treated with “
respect for the inherent dignity of the human person”. The scope of the protections enshrined in these provisions were considered by the Inter-American Court of Human Rights (IACrtHR) in the Loayza Tamayo case. The Court wrote that “
The violation of the right to physical and psychological integrity of persons is a category of violation that has several gradations and embraces treatment ranging from torture to other types of humiliation or cruel, inhuman or degrading treatment with varying degrees of physical and psychological effects.”161 The Court went on to specifically apply this principle to interrogations conducted in the context of the fight against terrorism:
The degrading aspect is characterized by the fear, anxiety and inferiority induced for the purpose of humiliating and degrading the victim and breaking his physical and moral resistance […]. That situation is exacerbated by the vulnerability of a person who is unlawfully detained […]. Any use of force that is not strictly necessary to ensure proper behavior on the part of the detainee constitutes an assault on the dignity of the person […] in violation of Article 5 of the American Convention. The exigencies of the investigation and the undeniable difficulties encountered in the anti-terrorist struggle must not be allowed to restrict the protection of a person's right to physical integrity.162
With respect to the specific facts of the case, the Court found that “
solitary confinement in a tiny cell with no natural light, blows, and maltreatment, including total immersion in water, intimidation with threats of further violence, a restrictive visiting schedule” all constitute forms of cruel, inhuman or degrading treatment.163
Treatment which harms a detainee's psychological and moral integrity (i.e. prolonged isolation and deprivation of communication) rises to the level of cruel and inhuman treatment.164
ii) European Convention for Human Rights:
The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) provides that “
No one shall be subjected to torture or to inhumane or degrading treatment or punishment”.165 Although these decisions are not binding precedents, they provide a useful standard with which to define CF interrogation practices.166 The ECrtHR has said that “
Article 3 enshrines one of the most fundamental values of democratic societies.167Even in the most difficult of circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Article 3 makes no provision for exceptions and no derogation from it is permissible even in the event of a public emergency threatening the life of the nation.”168
To fall within the scope of Article 3 of the ECHR, the impugned ill-treatment must attain “
a minimum level of severity”. The ECrtHR has developed a contextual approach to this determination rather than a bright-line test. The assessment of the minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some circumstances, the sex, age and state of health of the victim.169
The ECrtHR decision in the Northern Ireland case170 provides a short analysis on the meaning of the term “
inhuman or degrading treatment or punishment” as that term is understood in ECHR171 and, in particular, how that term relates to the concept of "torture." While the wording of the comparable right in the ICCPR and the CAT, both binding on Canada, is not identical to the ECHR wording, the analysis provides an idea as to how the terms under those two treaties might be understood.172
The case considered the so-called "five techniques" used by members of the Royal Ulster Constabulary against persons rounded up in an operation in Northern Ireland. The now infamous five techniques were: wall standing, hooding, subjection to noise, deprivation of sleep, and deprivation of food and drink. The court found that the use of these techniques amounted to treatment that was both inhuman and degrading, but that it did not amount to torture. The "distinction" between torture and inhuman or degrading treatment, the court stated, “
derives principally from a difference in the intensity of the suffering inflicted.”173 The Court held that these five techniques, when used in combination for long periods, “
undoubtedly amounted to inhuman and degrading treatment” but found that they did not “
occasion suffering of the particular intensity and cruelty implied by the word torture.”
The ECrtHR continued to examine the severity of pain and suffering to determine whether a detainee's treatment amounted to torture. In Aksoy v. Turkey, the Court found that Mr. Aksoy's treatment amounted to torture. During his interrogation by the Turkish police, Mr. Aksoy was stripped naked, with his hands tied behind his back, and hung by his arms. This technique is known as the "Palestinian hanging". Mr. Aksoy was also subjected to electric shocks to his genitals and several beatings. The Court found that the "Palestinian hanging" caused sever pain. This, coupled with the finding that Mr. Aksoy suffered paralysis in both arms, was sufficient for the Court to conclude that Mr. Aksoy had been subjected to torture. The Court did not comment on whether the beatings and shocks also amounted to torture in the circumstances.
In its more recent jurisprudence, the ECrtHR has modified its approach. The Court continues to maintain a distinction between torture and cruel, inhuman, and degrading treatment but the principle determining factor is no longer the level of pain inflicted. The seminal case in this regard is Selmouni v. France. Mr. Selmouni was beaten and sodomized while in police custody. The Court found that the severity of the physical and mental violence endured by Mr. Selmouni was enough to constitute torture. The Court reconsidered the threshold for torture as set-out in the Northern Ireland Case:
[T]he Court considers that certain acts which were classified in the past as "inhuman and degrading treatment" as opposed to "torture" could be classified differently in future. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.
While there is a general and accepted agreement that, as a matter of international law, torture is prohibited, the definition of what of types conduct give rise to a certain level of torture may develop and change over time. The issues addressed in this paper regarding the particular distinction between torture and other forms of ill-treatment is only peripheral. While the standard of treatment used to distinguish between torture and ill-treatment might shift over time, there is no question that all forms of ill-treatment are proscribed as a matter of human rights law. As such, the distinction is of little legal relevance for our purposes.
In Aydin v. Turkey, the applicant was blindfolded, paraded around naked and subject to rape. The ECrtHR found that “
the accumulation of acts of physical and mental violence inflicted on the applicant and the especially cruel act of rape to which she was subjected amounted to torture in breach of Article 3 of the Convention”.174 The Court would have reached the same conclusion on either of the grounds taken separately.
The ECrtHR's jurisprudence categorizes conduct which is premeditated, prolonged, causing either actual bodily harm or intense physical or mental suffering as "inhuman treatment". Treatment is deemed to be "degrading" where it is such as to arouse in victims feelings of fear, anguish, and inferiority capable of humiliating and debasing them.
(a) Inhuman Treatment:
Treatment has been held by the Court to be "inhuman" because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. It can also be "degrading" because it is such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. In order for a punishment or treatment associated with it to be "inhuman" or "degrading", the suffering or humiliation involved must, in any event, go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. The question of whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account. Nonetheless, absence of any such purpose cannot conclusively rule out a finding of violation of Article 3.175
In the Northern Ireland Case, the Court found that, applied in combination, the five techniques caused “
if not actual bodily injury, at least intense physical and mental suffering”.176 This led the Court to conclude that the five techniques amounted to inhuman treatment. The Court did not specify the reason for this conclusion. Importantly, the Court in the Northern Ireland Case considered the combined effect of the five techniques, leaving open the issue of whether each technique alone amounted to “
inhuman or degrading treatment.”177
As exemplified in the Tomasi, Ribitsch, and Tekin cases discussed below, the ECrtHR does not always explain which aspects of the impugned conduct are inhuman and which are degrading.
While in custody, Mr. Tomasi was struck by officers, deprived of sleep, deprived of food, left naked in front of an open window, and subjected to beatings.178 There were physical markings, bruising and scratches, on his body as a result of this treatment. The Court characterized this treatment as inhuman and degrading.179 The injuries were not severe but they were indicative of the use of physical force on an individual in custody. For this reason, the commission concluded that the treatment in question did violate Article 3 of the Convention.180
Mr. Ribitsch was held in police custody and interrogated by police officers. He was grossly insulted, repeatedly subjected to assaultive behaviour, which included punches and kicks. He was also pulled to the ground by the hair and his head was banged against the floor. The treatment caused bruising, vomiting and diarrhea.181 The Court found that Mr. Ribitsch had suffered inhuman and degrading treatment. The standard applied by the Court was the following: “
in respect of a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set froth in Article 3 of the Convention.”182
During his interrogation, Mr. Tekin was kept in a cold dark cell, he was detained for four days in total darkness in sub-zero temperatures with no bed or blankets and blindfolded. His treatment left him with bruises and other wounds. He was being aggressively interrogated, threatened with death, and denied food and liquids. He also was stripped naked, hosed with cold water, beaten with a truncheon on his body and the soles of his feet, and had electric shocks administered to his fingers and toes. In reviewing the complaint, the Court found a violation of Article 3 and adopted the view that the treatment had to be considered as a whole and did not distinguish between inhuman and degrading elements of the treatment.183
(b) Degrading Treatment:
In the Greek Case, the Commission wrote that degrading treatment grossly humiliates and drives the detainee to act against his will or conscience.184 This general principle was applied and further elaborated upon throughout ECrtHR case law.
In the Northern Ireland Case the Court considered the five techniques and found that they were degrading since “
they were such as to arouse in their victims feelings of fear, anguish and inferiority, capable of humiliating and debasing them and possibly breaking their physical or moral resistance.”185
In Raninen v. Finland, the Commission considered a complaint wherein the applicant was handcuffed in public presence while being transferred from the Court. The Commission wrote that “
a treatment may also be said to be degrading if it grossly humiliates a person in front of others or drives him to act against his will or conscience”. The Commission also found that “
a measure which does not involve physical ill-treatment […] may constitute degrading treatment provided that it attains a minimum level of severity thereby interfering with human dignity.” Humiliation in the eyes of the victim may be sufficient for treatment to attain the proscribed level of severity. In addition, “
it is essential whether or not the treatment in question denotes contempt or lack of respect for the personality of the person subjected to it and whether it was designed to humiliate or debase him instead of, or in addition to, achieving other aims.”186
In Mr. Selmouni's case, the Court paid particular attention to the degrading treatment which he suffered at the hands of the police:
[T]he court also notes that the applicant was dragged along by his hair; that he was made to run along a corridor with police officers positioned on either side to trip him up; that he was made to kneel down in front of a young woman to whom someone said "Look, you're going to hear somebody sing"; that one police officer then showed him his penis, saying "Here, suck this," before urinating over him; and that he was threatened with a blowlamp and then a syringe.
The Court observed that such treatment would be “
heinous and humiliating for anyone, irrespective of their condition” specifically because the acts complained of were “
such as to arouse in the applicant feelings of fear, anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical and moral resistance.”
The East African Asians case also addressed the issue of degrading treatment. The general principle applied was that action, which lowers a person in rank, position, reputation or character, is degrading treatment if it reaches a certain level of severity. In this case, it was to publicly single out a group of persons for differential treatment on the basis of their race. The level of severity must be such that the treatment breaks the victim's physical or moral resistance.187
Degrading treatment is therefore treatment which is calculated to humiliate or debase and denotes a lack of respect or contempt for the victim. It is also treatment which has the effect of gross humiliation in front of others or in the victim's own eyes. It is treatment which arouses feelings of fear, anguish or inferiority. In order to rise to the necessary level of severity, it must humiliate and debase the victim and break physical or moral resistance. The ECrtHR's case law also makes clear that the conduct is required to go beyond the inevitable suffering or humiliation connected with legitimate treatment or punishment.
D) State of Israel and the General Security Services
The General Security Service (GSS) is responsible for the investigation of individuals suspected of crimes that affect the security of the State of Israel. In carrying out its functions, the GSS also investigates those suspected of terrorist activities. In so doing, the GSS used methods of interrogations which were authorized in directives and internal regulations designed to regulate interrogation methods. These included the use of physical pressure. In the GSS Practices Case, the petitioners challenged the legality of the methods used.
In the GSS Practices Case, the Israel Supreme Court noted that “
An interrogation inevitably infringes upon the suspect's freedom, even if physical means are not used. Indeed, undergoing an interrogation infringes on both the suspect's dignity and his individual privacy.”188 The approach adopted by the Israel Supreme Court:
In the GSS case, the Court held that investigators had, in essence, the same power as police officers concluding that neither "possess the authority to employ physical means which infringe upon a suspect's liberty during the interrogation, unless these means are inherently accessory to the very essence of an interrogation and are both fair and reasonable" (emphasis added).
The Court held that the legality of interrogation techniques is “
deduced from the propriety of purpose and from its methods.”189
Specially, the Court found that forcing a suspect to adopt a stress position, in that case forcing a detainee to crouch on the tips of his toes for five-minute intervals was prohibited because “
it does not serve any purpose inherent to an investigation”. With respect to the practice of hooding, the Court found that there may be a legitimate consideration in limiting the eye contact between the detainee and the interrogator, but that having a hood covering the entire head (which may lead to suffocation) is not permitted. In addition, the Court held that in the circumstances of the case, loud music, when combined with other impermissible methods of interrogation, is also prohibited.190 Finally, with respect to sleep deprivation, the Court found that this practice may only be allowable when it is found to be “
an inevitable result of an interrogation, or one of its side effects”. As such, it is impermissible to subject a detainee to sleep deprivation “
for a prolonged period of time” when used “
for the purpose of tiring him out, of 'breaking him'”.191 Similarly, cuffing a detainee for the purpose of preserving safety is within the investigator's authority provided that this is in fact the purpose for which the individual is cuffed.192 In order to be legitimate interrogation methods, there must be an essential link and connection between the conduct and inherent investigative need which relates to the very essence of the interrogation. Methods which do not meet this test are prohibited.193
E) Necessity and the Ticking Bomb
It has been suggested that there are some situations which could justify acts which would otherwise be illegal.194 Specifically, there are those who argue that the application of physical and mental force, short of torture, which would otherwise fall within the ambit of ill-treatment, should be permissible where coercive measures are necessary to save the lives of others. Where there is, for example, an imminent threat. In this context, commentators often use the "ticking bomb" concept as an example. This scenario presumes that a detainee has information (or is believed to have information) which the interrogator must have to save the lives of others, namely to “
disarm a ticking bomb”. Without the extraction of the information, there is a significant (and imminent) risk of harm and loss of life. In these circumstances, some argue that derogations from legal obligations should be permissible.195
In the GSS Case, the Israeli Court considered this issue. The Court opined that, while a necessity defense could not be relied upon to authorize the use of torture, the defense could be raised in rare situations where the use of force in an interrogation was deemed necessary. Specifically, the Court held that the necessity defence could be open to an investigator in some circumstances. However, the court imported two important caveats: any physical force used “
must still be inherently accessory to the very essence of the interrogation and be both fair and reasonable” and second, that the notion of necessity cannot be used to justify what is otherwise prohibited conduct a priori. The necessity defence is not a source of authority to make use of otherwise prohibited methods of interrogation. The Supreme Court of Israel determined that "ticking bomb" situations could not be used to determine, a priori, the guidelines which are applicable to interrogations. That is to say that while a necessity defence may be raised, after the fact, it does not justify the use of torture or other forms of ill-treatment. In defining applicable norms, the notion of "necessity" does not affect the definition of what is permissible conduct because it does not permit infringement of human rights.
In R. v. Perka, the Supreme Court of Canada recognized necessity as a common law defence in Canada. Chief Justice Dickson restricted necessity to “
circumstances of imminent risk where the action was taken to avoid a direct and immediate peril”. In addition, the impugned act would only benefit from the defence if it was "morally involuntary" as “
measured on the basis of society's expectation of appropriate and normal resistance to pressure”; and where it was clear that there was no reasonable legal alternative to avoid the peril.196 The Court stressed that necessity could operate as an excuse for morally involuntary conduct but not as a justification. The standard required for necessity would seem to preclude premeditated and deliberate decisions to violate the law. If a situation is clearly foreseeable, the defence would not apply as the circumstances would not be necessitous.
In order to consider the necessity defence, there must be an air of reality to the defence. There must be evidence relating to the three parts of the test. The Court's restrictive formulation of an immediate threat, namely that the threat must be “
on the verge of transpiring” and “
virtually certain to occur”,197 certainly limits the applicability of the defence in the context of interrogation. A subjective belief that there is a threat of imminent peril is not sufficient. There must be a reasonable basis for the belief given the circumstances.
In addition, as the Court determined in Perka, “
if there is a reasonable legal alternative to disobeying the law, then the decision to disobey becomes a voluntary one, imperilled by some consideration beyond the dictates or necessity and human instinct”. Simply put, if there is a reasonable legal alternative, there is no necessity. Legal alternatives must be pursued even though they are "demanding" or "unappealing".198 The analysis of whether peril is imminent and whether there was a reasonable legal alternative are both highly factual and highly contextual questions. The final consideration is whether the harm caused is proportional to the harm committed. The harm avoided does not have to "clearly outweigh" the harm caused so long as the two harms are “
of a comparable gravity”.199
Proponents of a necessity doctrine make clear that the doctrine could only apply where an interrogator “
reacting to an emergency rather than to a state contemplating the creation of broad policies.”200 In the context of applicable Canadian law, it would appear that a deliberate and planned decision to engage in prohibited conduct during an interrogation is inconsistent with the morally involuntary response to an immediate threat required for a necessity defence.
F) Section 12 of the Canadian Charter
As outlined above, this paper is intended to examine aspects of the legal framework that defines the law of interrogation. In this respect, the issue of the scope of extraterritorial application of the Charter is not engaged.201 In considering the IHL rules applicable to interrogations, however, Charter rights are relevant although not determinative of the standards to be applied.
The guarantee of freedom from cruel and unusual treatment is enshrined in section 12 of the Charter.202 The protections offered by section 12 are absolute in so far as there is no prescribed limitation within the wording of the section. On a strict reading of the Charter provisions, however, section 12 rights could be limited by section 1. Given Canada's international obligations, however, it would seem unlikely that a court would accept an argument relying on section 1 to justify what would otherwise be prohibited conduct. A section 1 justification was considered by the Supreme Court of Canada in R. v. Smith.203 The majority rejected the argument finding that “
no law of Canada shall be construed or applied so as to impose or authorize the imposition of cruel and unusual treatment or punishment.”204
The prohibition contained in section 12 is prima facie narrower than the prohibitions considered above. Specifically, while international and regional instruments expressly prohibit torture and cruel, inhuman, or degrading treatment or punishment, the wording of section 12 appears to express a narrower restriction. In R. v. Suresh, the Supreme Court of Canada concluded that torture could be read-into section 12 because torture falls into the category of proscribed conduct.205 It suggested, however, that Canadian courts can take the view that section 12 is intended to fully implement Canada's international human rights obligations.206
In Kindler v. Canada (Minister of Justice), Justice Cory noted that through section 12 Canada affirmed its commitment to the principle of human dignity. Although writing in dissent on the disposition of the facts of the particular case, Justice Cory's comments with respect to the fundamental importance of human dignity in the Canadian Charter are worth noting. Justice Cory reviewed a number of seminal Supreme Court of Canada cases and underlined jurisprudential pronouncements which confirm that the notion of human dignity is one of the basic principles and values which permeate almost every right and freedom guaranteed in the Charter.207
In the Smith Case, the Supreme Court of Canada set out the test to be applied to determine whether treatment or punishment is "cruel and unusual" within the meaning of section 12 of the Charter. Justice Lamer (as he then was) wrote that punishment (or treatment) is "cruel and unusual" where it is so excessive as to outrage standards of decency. The concept of outraging standards of decency would be met if a “
Canadian would find the punishment abhorrent or intolerable.”208 No matter what the crime or whom the offender, punishments must be appropriate. When punishment is “
so demeaning that all human dignity is lost, then the punishment must be considered cruel and unusual.”209 This standard applies even when dealing with the worst crime and the worst offender. The infliction of corporal punishment, even if only one lash, is simply not acceptable.210 These guiding principles were approved by the Court in R. v. Wiles211 and in Canada (Minister of Employment and Immigration) v. Chiarelli.212
More recently, in Charkaoui v. Canada (Citizenship and Immigration), the Supreme Court found that because indefinite detention without hope of release or recourse to a legal process to procure release may cause psychological stress, the security certificate provisions of the Immigration and Refugee Protection Act ("IRPA") amounted to cruel and unusual treatment.213 Confinement of an inmate in administrative or protective segregation is not per se cruel and unusual treatment. It may however become so if it is so excessive as to outrage standards of decency.
III. The Emerging Legal Imperatives
The rules applicable to CF interrogations that take place in the context of international operations are informed by IHL, as the applicable lex specialis, as well as IHRL. The above discussion considered some of the areas of commonality and difference with respect to the two regimes. There are clear overlaps and inter-relations between these two areas of law and their mutual application in the context of CF operations is not contentious.
Although the GCs place restrictions on the methods that can be used to interrogate a detainee, there is nothing in the GCs that prohibit interrogation. The Conventions regulate the method of interrogation. In the specific context of interrogations the concept of humane treatment and the prohibition against coercion shape each other mutually. Neither one subsumes the other.
The rules are easily stated: in conducting intelligence interrogations it is clear that detainees must be treated humanely at all times. In addition, there is conduct and there are practices which are clearly proscribed. Subjecting a detainee to inhumane treatment, and acts of violence or intimidation or any other form of coercion used in aid of interrogation is prohibited and a clear violation of the Geneva Conventions of 1949. The basic principles derived from the text of the GCs can be identified without great difficulty. IHRL norms and obligations clearly proscribe torture and cruel, inhuman and degrading treatment. These are non-derogable obligations. Coercive interrogations, that is, interrogations which fall short of torture but nonetheless subject a person to illtreatment are clearly prohibited whether under IHL or IHRL frameworks.
Providing clear guidance with respect to the conduct of questioning detainees is not always straightforward and listing conduct as categorically legal or illegal may be difficult in some cases. There may, for example, be conduct which on its own is acceptable but when combined with other factors is no longer lawful and permitted. It is accepted that some minor physical discomfort will be associated with the interrogation process because interrogation involves the loss of liberty. Establishing a bright-line rule to define the point at which the discomfort will amount to inhumane treatment is not always feasible given that a number of issues must be factored into the equation. In the context of the interrogation process, the legal parameters are defined with respect to factors which are related to the method of questioning (i.e. techniques) but also to extrinsic factors (i.e. conditions in the detention facility). Similarly, it is accepted that some form of persuasion may be applied to an uncooperative detainee in order to extract information. The precise point at which the lawful persuasive techniques cross the Rubicon such that they can be classified as coercive and thus prohibited is not easily identified. That is not to suggest that there are not methods which cannot be condoned in any circumstances.
What the legal imperatives discussed above do is provide principles and frameworks from which we may develop doctrinal guidance and procedures in order to identify interrogation methods and techniques which are expressly prohibited.
One of the clear guiding principles which does emerge is that external pressures, namely pressures which are applied by interrogators in order to break a detainee's will, are prohibited if, as a result, the detainee provides the information and cooperates in order to end or avoid the distress which the interrogator has brought to bear on the individual. Where the conduct in question is specifically designed to overbear the will of the detainee in that way, it is impermissible. The cases of torture, actual or threatened, or physical violence are clear; perplexity arises when much more subtle elements must be evaluated. The strength of mind and will of the accused, the influence of custody or its surroundings, the effect of questions or of conversation, all call for delicacy in appreciation of the part they have played behind the ultimate cooperation. The purpose of conduct is therefore paramount. The pain and suffering inflicted is not the decisive standard.
It is also clear that coercive interrogations are not legally acceptable simply because the impugned treatment does not rise to the level of torture. The UN Special Rapporteur has recently addressed this issue:
An increasing number of Governments, in the aftermath of 11 September 2001 and other terrorist attacks, have adopted a legal position which, while acknowledging the absolute nature of the prohibition of torture, brings the absolute nature of the prohibition of cruel, inhuman or degrading treatment or punishment into question. In particular, it is argued that certain harsh interrogation methods falling short of torture might be justified for the purpose of extracting information aimed at preventing future terrorist acts that might kill many innocent people.214
He concluded that “
If a person is detained or otherwise under the de facto control of another person, i.e. powerless [...] the prohibition of torture and cruel, inhuman or degrading treatment is absolute.”215
13 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,  I.C.J. Rep. 226, at para. 24.
14 See for example: Evans, "Getting to Grips with Torture" (2005) 51 Int'l & Comp. L. Q. 365; Evans & Morgan, Preventing Torture: A Study of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (New York: Oxford University Press, 1998); Guiora & Page "The Unholy Trinity: Intelligence, Interrogation and Torture" (2006) 37 Case W. Res. J. Int'l L. 427; Shany, Yuval "The Prohibition Against Torture and Cruel, Inhuman, and Degrading Treatment and Punishment: Can the Absolute be Relativized Under Existing International Law?" (2007) 56 Cath. U. L. Rev. 837; and Rona, Gabor "War, International Law, and Sovereignty: Reevaluating the Rules of the Game in a New Century: Legal Frameworks to Combat Terrorism" (2005) 5 Chi. J. Int'l L. 499.
15 The Geneva Conventions protect two types of detainees: prisoners of war (PW) and civilians (also known as protected persons). In addition, Article 75 of Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977 [API] assures the same minimum guarantees to every person detained, regardless of status. These protections have achieved the status of customary law. See e.g. Prosecutor v. Musema, ICTR-96-13-A, Trial Chamber I Judgment and Sentence (27 January 2000): along with Common Article 3 these provisions represent “
Fundamental Guarantees as a humanitarian minimum of protection for war victims” which are recognized as customary international law.
16 For example, although IHL applies to all armed conflicts, treaty provisions regulating conduct in international armed conflicts are more extensive than those applicable to non-international armed conflicts.
17 "Improving the Fighting Position" at 22.
18 Nicaragua Case,  I.C.J. Rep. 392 paras. 218 and 255; see also Abella v. Argentina (1997) Inter-Am. CHR. Case No. 11.137, Report No. 5/97 paras. 155-156.
19 ICRC, Geneva Convention (IV) Relative to the Protection of Civilian Persons in Times of War: Commentary Article 3 (Jean Pictet Ed., 1958), available at http://www.icrc.org [ICRC Commentary IV].
20 The definition provided in the GC's for "humane treatment" is thus “
not a very precise one”, and that it is easier to frame the definition in the negative, through defining what is inhumane than in the positive. ICRC Commentary IV, Article 3, at 39.
21 Arguably the standard is also informed by, but not necessarily equivalent to, those methods of interrogation which are prohibited under other sources of international and domestic law.
22 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977 [API].
23 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non- International Armed Conflicts (Protocol II), Geneva, 8 June 1977 [APII].
24 Third Geneva Convention relative to the Treatment of Prisoners of War, Geneva, 12 August 1949 [GCIII].
25 Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949 [GCIV].
26 In this context, a detainee may be defined as any person captured or otherwise detained by an armed force.
27 GCIII, art. 13. A similar rule exists for sick and wounded in the field: Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949 [GCI], art. 12; and wounded and sick at sea and shipwrecked: Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked members of Armed Forces at Sea. Geneva, 12 August 1949 [GCII], art. 12. API, art. 10, also reinforces the requirement to treat wounded, sick and shipwrecked humanely.
28 ICRC, Geneva Convention (III) Relative to the to the Treatment of Prisoners of War: Commentary (Jean Pictet Ed., 1958), available at http://www.icrc.org [ICRC Commentary III] at 140.
29 ICRC Commentary III. See also Elsea, Lawfulness of Interrogation Techniques under the Geneva Conventions (September 8, 2004), CRS Report for Congress, RL32567 ["CRS: Lawfulness of Interrogation Techniques"] at 18, suggesting that GCIII articles 14-16 might also contain elements of humane treatment.
30 Such an act or omission is explicitly denounced as a "serious" breach in the text of the article.
31 ICRC Commentary III states that this protection against intimidation means that “
the protection extends to moral values, such as the moral independence of the prisoner.”
32 Whether this prohibition prevents displaying detainees in news media is subject to some debate: see, e.g. CRS: Lawfulness of Interrogation Techniques, at 19.
33 GCIV, art. 27.
34 The same rule is provided at APII, art. 4, 5, and 7, in respect of those non-international armed conflicts governed by APII, for wounded, sick or shipwrecked as well as detained persons and all others “
who do not take a direct part or have ceased to take part in hostilities.”
35 GC Common Article 3(1)(a)-(c).
36 GCIII art. 130.
37 In addition to the rules prohibiting torture cited below, there are others applicable in particular circumstances. Under GCI, art. 12, wounded or sick may not be “
inline subjected to torture.” Under GCII, art. 12, the same rule applies for those wounded, sick at sea, or shipwrecked.
38 GCI art. 50, GCII art. 51, GCIII art. 130, GCIV art. 147. In the PW context, see GCIII, art. 130; and for protected persons, see GCIV, art. 147. This point is expressly made in the Rome Statute of the International Criminal Court. U.N. Doc. A/CONF.183/9 (17 July 1998). Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July, 1998 ["Rome Statute"] art. 8(2)(a).
39 Rome Statute, art. 7(1)(f).
40 Rome Statute, art. 8(2)(a)(ii). Under the Rome Statute, art. 8(2)(c)(i), torture is also a war crime when committed in the context of an armed conflict not of an international character through reference to Common Article 3 of the Geneva Conventions.
41 Common Article 3 contains an express prohibition on torture framed along the lines of that in API. Common Article 3 prohibits “
violence to life and person, in particular…torture.” As with API, art. 75, the prohibition in common article 3 is against “
violence to life and person,” and thus prohibits conduct short of torture including, expressly, "cruel treatment." It is clear that common article 3 applies during interrogations: see CRS: Lawfulness of Interrogation Techniques, at 8 and cited cases.
42 ICRC Commentary III, Article 130.
43 GCIII, art. 17. The rule is restated in the context of penal and disciplinary sanctions against PWs at GCIII, art. 87.
44 GCIV, art. 32. The ICRC Commentary IV, Article 147: “
The word torture has different acceptations. It is used sometimes even in the sense of purely moral suffering, but in view of the other expressions which follow (i.e. inhuman treatment including biological experiments and suffering, etc.) it seems that it must be given here its, so to speak, legal meaning - i.e., the infliction of suffering on a person to obtain from that person, or from another person, confessions or information.”
45 API, art. 75(2)(a). APII has an almost identical provision for “
all persons who do not take a direct part or have ceased to take part in hostilities” in the context of an APII non-international armed conflict.
46 As noted above, torture is also prohibited as "violence to life and person." Rome Statute, art. 8(2)(c)(i) criminalizes violation of this prohibition in Common Article 3 in the context of an armed conflict not of an international character.
47 GCIII, art. 87.
48 GCIV, art. 118.
49 APII, art. 4. Examples of cruel treatment given in the text are “
torture, mutilation or any form of corporal punishment.” Interestingly, API, art. 75 guarantees don't explicitly prohibit cruel treatment although any treatment that might be considered cruel is certainly prohibited under API on other grounds.
50 GCIII, art. 89.
51 GCIV, art. 119. The term "internee" refers to detained protected persons in certain cases.
52 GCIV, art. 5.
53 GCIII, art. 130.
54 GCIV, art. 147.
55 GCI, art. 50.
56 GCII, art. 51.
57 Rome Statute, art. 8(2)(a)(ii).
58 What is prohibited is “
outrages upon personal dignity, in particular, humiliating and degrading treatment.” But some appear to suggest that only certain humiliation or degradation meets the requirements necessary to be termed an outrage upon human dignity: “
Acts causing severe humiliation or degradation may rise to the level of 'outrages upon human dignity.'” (CRS: Lawfulness of Interrogation Techniques, at 20).
59 Prosecutor v. Kunarac, IT-96-23, Trial Chamber Judgment (22 February 2001) para. 507. This approach was endorsed on Appeal. See Prosecutor v. Kunarac, IT-96-23, Appeals Chamber Judgment (12 June 2002).
60 API, art. 75, also adds to the list of examples of “
outrages upon human dignity” “
enforced prostitution and any form of indecent assault.” Tracking language also appears in APII, art. 4, with the addition of "rape" to the list of examples of “
outrages upon human dignity.”
61 Rome statute, art. 8(2)(b)(xxi), and, in the specific context of an armed conflict not of an international character, art. 8(2)(c)(ii).
62 GCIII, art. 99.
63 See e.g Glod, & Smith "Interrogation Under the 1949 Prisoners of War Convention" (1968) Military Law Review 145, at 145: GC III expanded both the types of information protected by the 1929 Convention (“
information of any kind whatever”) and reduced the means by which information could be extracted (“
no physical or mental torture, nor any other form of coercion”).
64 GCIV, art. 31.
65 ICRC Commentary IV, at 219-210.
66 "Improving the Fighting Position" at 22.
67 Likewise, it is likely not helpful to define coercion through reference to activity that would justify treasonous conduct. Many countries place rules on members of their armed forces to be followed in the event of capture by the enemy. Generally, only under very limited circumstances will treasonous conduct be excusable. Importantly, there is no direct connection between the type of interrogation practice that might justify treasonous conduct and the type of practice that might be unlawful as coercive. CRS: Lawfulness of Interrogation Techniques, at 15.
68 US Army Field Manual Human Intelligence Collector Operations No. 2-22.3 (6 September 2006) [US Army FM 2-22.3] at 5.22.
69 CRS: Lawfulness of Interrogation Techniques, at 13. Importantly, use of this definition should not imply applicability in this context of domestic common law rules relating to the admission of involuntary statements in court.
70 There is a strong historical legal basis for a rule preventing the compelling of information. The rule stands on its own, not directly connected to torture or coercion at API, art. 75(4)(f) relating to testifying against oneself or confessing guilt. This "right to remain silent" is entrenched in the Canadian legal system. This right is reflective of the idea that a person never "owes" it to justice to convey information. As is pointed out is the ICRC Commentary III, art. 99, the contrary position historically “
led to the institution of torture.”
71 CRS: Lawfulness of Interrogation Techniques, at 13.
72 Ibid., at 14.
73 "Improving the Fighting Position" at 22. See also US Army FM 2-22.3.
74 In this respect international human rights law standards are informative.
75 "Improving the Fighting Position" at 23.
76 Ibid., at 26-27.
77 Ibid. at 23. By way of example, the author suggests that while the deprivation of food would be impermissible as a form of manipulation because it would result in inhumane treatment, the issuance of extra food rations as a reward for cooperation would be a legitimate incentive.
78 Indeed within the CF the term 'interrogation' may be used to refer to either intelligence gathering or criminal investigation. (see PW Handling Manual at 4-1).
79 In R. v. Hobbins, [1982 ] 1 S.C.R. 553, Justice Laskin noted that in determining the voluntariness of a confession, courts should be alert to the coercive effect of an "atmosphere of oppression", even though there was “
no inducement held out of hope of advantage or fear of prejudice, and absent any threats of violence or actual violence”.
80 The purpose of the voluntariness rule is twofold: preventing unreliable admissions but also vindicating the rights of the accused by protecting the accused decision or choice to speak or remain silent. R. v. Hebert: “
. . . one of the themes running through the jurisprudence on confessions is the idea that a person in the power of the state's criminal process has the right to freely choose whether or not to make a statement to the police. This idea is accompanied by a correlative concern with the repute and integrity of the judicial process.”  2 S.C.R. 151.
81 In R. v. Fitton Rand J. wrote: “
The rule on the admission of confessions, which, following the English authorities, was restated in Boudreau v. The King, at times presents difficulty of application because its terms tend to conceal underlying considerations material to a determination. The cases of torture, actual or threatened, or of unabashed promises are clear; perplexity arises when much more subtle elements must be evaluated. The strength of mind and will of the accused, the influence of custody or its surroundings, the effect of questions or of conversation, all call for delicacy in appreciation of the part they have played behind the admission, and to enable a Court to decide whether what was said was freely and voluntarily said, that is, was free from the influence of hope or fear aroused by them.”  S.C.R. 958.
82 R. v. Whittle, the confession rule provides “
not only a standard of reliability with respect to the evidence obtained from persons suspected of crime who are detained but fairness in the investigatory process.” In this respect, Justice Sopinka wrote that the confession rule protects the idea that the suspect has the right to make a choice. In order to determine whether a statement was lawfully obtained and admissible, the court will consider whether “
the action of police authorities deprive[d] the suspect of making an effective choice by reason of coercion, trickery, or misinformation or lack of information”  2 S.C.R. 914.
83 In R. v. Horvath, Spence J. concluded that “
under the circumstances of the four-hour interview the complete emotional disintegration of the appellant had been brought about” and for this reason the statement was inadmissible.  2 S.C.R. 376 at p. 400.
Although improper police questioning may in some circumstances infringe the governing [confessions] rule it is essential to bear in mind that the police are unable to investigate crime without putting questions to persons, whether or not such persons are suspected of having committed the crime being investigated. Properly conducted police questioning is a legitimate and effective aid to criminal investigation... . On the other hand, statements made as the result of intimidating questions, or questioning which is oppressive and calculated to overcome the freedom of will of the suspect for the purpose of extracting a confession are inadmissible….” Martin, J.A. wrote in R. v. Precourt (1976), 18 O.R.(2d) 714 (C.A.), at 721.
85 See the recent endorsement of this position by the majority of the SCC in R. v. Singh,  3 S.C.R. 405.
86 R. v. Oickle,  2 S.C.R. 3.
87 Trial fairness is clearly a consideration under the modern and principled approach to the hearsay exceptions. See e.g. R. v. Starr,  2 S.C.R. 144
88 R. v. Hodgson,  2 S.C.R. 449 at para. 21.
89 R. v. Oickle at para. 69.
90 R. v. Singh at para. 36.
91 Ibid., at paras. 5 and 18.
92 R. v. Sabri (2002), 4 C.R. (6th) 349 (Ont. C.A.).
93 Imminent threats of torture will clearly render a confession inadmissible. The use of veiled threats require closer examination: R. v. Oickle para. 48-57.
94 See e.g. R. v. Spencer,  1 S.C.R. 500. In Spencer the accused confessed in exchange of leniency for his girlfriend.
95 In R. v. Dhandwar, (1996) 31 W.C.B. (2d) 96 (Ont. Ct. J. (Gen. Div.)), the accused contacted the authorities to seek protection for himself and his family. Justice Strong found that the evidence supported the accused's claim that the only reason he provided information to the police was because the police had made assurances of protection for himself and his family. He found that the police had deceived the accused and preyed upon his desperation.
96 R. v. Hobbins, at 556-57.
97 R. v. Oickle at para. 58-62.
98 R. v. Hoilett (1999), 136 C.C.C. (3d) 449 (Ont. C.A.).
99 R. v. Owen (1983), 4 C.C.C. (3d) 538 (N.S.S.C., App. Div.); R. v. Serack,  2 W.W.R. 377 (B.C.S.C.).
100 R. v. Cook,  2 S.C.R. 597 at para. 60.
101 R. v. Oickle at para. 65.
102 As examples of what might "shock the community", Lamer J. suggested a police officer pretending to be a chaplain or a legal aid lawyer, or injecting truth serum into a diabetic under the pretence that it was insulin. Lamer J.'s discussion on this point was adopted by the Court in R. v. Collins,  1 S.C.R. 265 at 286-87; see also R. v. Clot (1982), 69 C.C.C. (2d) 349 (Que. Sup. Ct.).
103 R. v. Oickle at para. 61.
104 Cory J. writes in R. v. Hodgson “
it focuses on putative reliability by analyzing the circumstances surrounding the statement and their effect on the accused, regardless of the statement's accuracy”, at para. 21.
105 In this respect, see the discussion of Dr. Ofshe's research in R. v. Oickle, and R. v. Osmar  O.J. No. 244.
106 See generally Heintze "On the relationship between human rights law protection and international humanitarian law" (2004) 86 International Review of the Red Cross 789; Schabas, "Lex Specialis? Belt and Suspenders? The Parallel Operation of Human Rights Law and the Law of Armed Conflict, and the Conundrum of Jus Ad Bellum" (2007) 40 Isr. L. Rev. 592; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,  I.C.J. Rep 226.; Legal Consequences of the Construction of a Wall in the Occupied Territory, Advisory Opinion,  I.C.J. Rep. 136.
107 G.A. Res. 217A (III), U.N. GAOR, 3d Sess., at 71, U.N. Doc. A/810 (1948).
108 International Covenant on Civil and Political Rights, G.A. Res. 2200A, (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 52, U.N. Doc. A/6316 (1966). Regional human rights treaties also reproduce this same prohibition. See e.g. African Charter on Human and People's Rights, the American Convention on Human Rights.
109 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 U.N.T.S. 85.
110 See e.g. De Vos, Christian M. "Mind the Gap: Purpose, Pain, and the Difference Between Torture and Inhuman Treatment" (2006) 14 No. 2 Hum. Rights Brief 4.
111 It is recognized that there are some reasons to draw the distinction. For example, the CAT explicitly bans torture, even in times of emergency. With respect to other forms of ill-treatment the Convention is silent. It is also generally accepted that torture carries a 'special stigma' although this does not detract from the prohibitions proscribed in international law with respect to other forms of ill-treatment.
112 See ICCPR, art. 4(2); CAT, art. 2(2).
113 GA Res. 3452 (XXX), 30 UN GAOR, Supp. No. 34, UN Doc. A/10034, at 91 (1976). Like all UN GA resolutions, this instrument is not a binding source of international law.
114 Ibid., art. 1(1).
115 CAT, art. 1(1).
116 CAT, art. 2.
117 There is ample international authority recognising the prohibition of torture as having jus cogens status. Prosecutor v. Kunarac, IT-96-23, Trial Chamber Judgment (22 February 2001) at 466; see also Prosecution v. Delalic et al, IT-96-21-T, First Trial Chamber Judgment (16 November 1998), Prosecutor v. Furundzija, IT 95-17/1, Trial Chamber Judgment (10 December 1998). With respect to torture as jus cogens norm and Canada's treaty obligations see Bouzari v. Iran (2004) 71 O.R. (3d) 675.
118 Legal Consequences of the Constructions of a Wall in the Occupied Palestinian Territory, Advisory Opinion,  I.C.J. Rep. 136 at para. 157. See also Ulbrick, "Tortured Logic: The (il)legality of United States Interrogation Practices in the War on Terror" (2005) 4 Nw. U. J. Int'l Hum. Rts. 210 at para. 30 [Tortured Logic].
119 Rome Statute, art. 7(2)(e).
120 Prosecutor v. Kvocka et al., IT-98-30/1, Trial Chamber Judgment (2 November 2001). In Prosecutor v. Furundzija, IT 95- 17/1, Trial Chamber Judgment (10 December 1998), the ICTY Trial Chamber noted that although IHL does not provide for a definition of torture, the definition contained in Article 1 of the 1984 CAT would apply as this definition had obtained customary law status. As a result, the crime of torture is characterized by the following elements: (i) it consists of the infliction, by act or omission, of severe pain or suffering, whether physical or mental; (ii) this act or omission must be intentional: (iii) the act must be instrumental to another purpose in the sense that the infliction of pain must be aimed at reaching a certain goal.
121 The idea that the pain or suffering need be "severe" for it to be considered torture is found in the ICTY jurisprudence. Prosecution v. Delalic et al., IT-96-21-T, First Trial Chamber Judgment (16 November 1998). "Severe level of mental or physical pain or suffering"; Prosecutor v. Furundzija, IT 95-17/1, Trial Chamber Judgment (10 December 1998): “
the infliction, by act or omission, of severe pain or suffering, whether physical or mental”.
122 See, e.g., Rodley, S., The Treatment of Prisoners Under International Law (2ed) Oxford University Press, 1999.
123 Prosecutor v. Kvocka et al., IT-98-30/1, Trial Chamber Judgment (2 November 2001) at para. 148.
124 Ibid., at paras. 142-43.
125 "Tortured Logic" at para. 48. This comment reflects a consideration of the ECrtHR cases considering torture.
126 See Cohen, "Democracy and the Mis-Rule of Law: The Israeli Legal System's Failure to Prevent Torture in the Occupied Territories" (2001) 12 Ind. Int'l & Comp. L. Rev. 75; see also CRS: Lawfulness of Interrogation Techniques, at 12; and Prosecutor v. Kvocka et al., IT-98-30/1, Trial Chamber Judgment (2 November 2001) at paras. 142-43.
127 The CAT, as an element of IHRL, is subject to limits on its lawful applicability. It is likely that in any case in which the CF was able to interrogate a person, Canada would be considered to have the level of control over that person necessary to invoke its IHRL obligations, including those under the CAT. Further, it is not likely that IHRL and IHL differ on the definition of the term "torture."
128 An independent expert mandated by the United Nations Human Rights Commission to report on the situation of torture around the world.
129 Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. U.N. GAOR. 59th Sess. Agenda. September 1, 2004: para. 17. U.N. Doc. A/59/324.
130 CAT, art. 2.
131 In Suresh v. Canada (Minister of Citizenship and Immigration)  1 S.C.R. 3, the Supreme Court of Canada ruled that “
in exceptional circumstances, deportation to face torture might be justified” under the Charter “
either as a consequence of the balancing process mandated by section 7 . . . or under section 1.” Notwithstanding Canada's international obligations, the Court concluded that deportation to face torture is not necessarily a violation of the Charter.
132 Article 5. Section 269.1 of the Criminal Code extended the jurisdiction of Canadian courts to include incidents that take place outside of Canada. This amendment allows prosecution of torture committed anywhere if the victim is a Canadian citizen; the accused is either a Canadian citizen, or currently in Canada.
133 CAT art. 11.
134 Aksoy v. Turkey (1997) 23 E.H.R.R. 553, at para. 62.
135 Assenov and Others v. Bulgaria, App. No. o. 90/1997/874/1086, 28 October 1998, at para. 117.
136 CAT, art. 15.
137 CAT, art. 10.
138 See Macdougall, "Torture in Canadian Criminal Law" (2005) Criminal Reports (6th) 24, for an insightful analysis which contrasts and compares the concept of torture as defined in the Criminal Code, the Crimes Against Humanity and War Crimes Act.
139 Canada became a party to CAT in 1987 and, fulfilling its obligations under Article 4, implemented the criminal provision of the Convention into Canada's domestic law through the enactment of section 269.1. Although torture only became an offence in 1987, it has been argued that types of incidents which the new offence encompassed were already addressed in the Criminal Code provisions proscribing conducts such as assault causing bodily harm, murder, extortion, and intimidation.
140 Sections 269.1(1) and (2).
141 Section 269.1(3).
142 Section 269.1(4).
143 The language of the section suggests that this list is representative, not exhaustive.
144 R. v. Rainville  J.Q. no 947, at paras. 66-75 [author's unofficial translation].
145 Ibid., at para. 80 [author's unofficial translation].
146 Suresh v. Canada (Minister of Citizenship and Immigration)  1 S.C.R. 3 at para. 51.
147 Canada, Fourth Report on the Convention Against Torture and Inhuman or Degrading Treatment or Punishment (2002) at para. 14.
148 ICCPR, art. 7. Again, this wording tracks exactly that from art. 5 of the Universal Declaration of Human Rights.
149 Although the CAT rules respecting torture are much more stringent than those respecting cruel, inhuman or degrading treatment or punishment: see "Tortured Logic" at 34.
150 ICCPR, art. 4(2).
151 The non-derogation provision of the CAT (art. 2(2)) is limited in scope to torture. See generally, "Tortured Logic" at 41. The European Convention on Human Rights (to which Canada is not a party) makes both torture and cruel, inhuman or degrading treatment or punishment non-derogable.
152 Human Rights Committee, General Comment 20, Article 7 (1992) (U.N. Doc. HRI\GEN\1\Rev.1 at 30 (1994). [General Comment No. 20].
154 ICCPR, art. 4.
155 See Human Rights Committee, General Comment 21, Article 10, (1992) U.N. Doc. HRI\GEN\1\Rev.1 at 33 (1994) [HRC General Comment No. 21], at para. 3: “
Article 10 complements the ban on torture or other cruel, inhuman or degrading treatment or punishment in article 7 of the Covenant.” See HRC Jurisprudence Campos Case where the Committee found that placing an individual in a cage in the presence of the press constituted degrading treatment in violation of Article 10.
156 Communication No. 255/1987: Jamaica, 22/10/92. Human Rights Committee. 46th Sess. 1992: para. 8.5. U.N. Doc. CCPR/C/46/D/255/1987.
157 General Comment No. 20, para. 6.
158 Concluding Observations of the Human Rights Committee : Israel. Human Rights Committee (1998) 63rd Sess.U.N. Doc. CCPR/C/79/Add.93, para. 19.
159 Prosecution v. Delalic et al., IT-96-21-T, First Trial Chamber Judgment (16 November 1998) at para. 542.
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” American Convention on Human Rights, article 5. November 22, 1969. 1144 U.N.T.S. 123.
161 Loayza Tamayo Case (1997) Inter-Am. Ct. H.R. (Ser. C). No. 33. at para. 57.
162 Ibid., at para. 57.
163 Ibid., at para. 58.
164 Velasquez Rodriguez Case (1998) Inter-Am. Ct. H.R. (Ser. C). No. 4. at para. 187. The Court also found that the treatment did not respect the detainee's dignity.
165 ECHR, art. 3.
166 With respect to the applicability of ECHR standards in the context of conflicts, the applicability of IHL as lex specialis and in particular how the ECrtHR applies IHL, see Reidy, "The Approach of the European Commission and Court of Human Rights to international humanitarian law" (1998) 324 International Review of the Red Cross 513.
167 For a general discussion of ECHR jurisdiction treaty system see Shelton, "The Boundaries of Human Rights Jurisdiction in Europe" 13 Duke J. of Comp. & Int'l L. 95.
168 Assenov and Others v. Bulgaria, App. No. o. 90/1997/874/1086, 28 October 1998, at para. 93; see also Selmouni v. France (25803/94), (2000) 29 E.H.R.R. 403, at para. 95.
169 A. v. United Kingdom, (1999) 27 Eur. H.R. Rep. 611 at para. 20.
170 Ireland v. United Kingdom (5310/71), (1978) 25 Eur. Ct. H.R. (ser. A),  E.C.H.R. 1 ["Northern Ireland Case"].
171 ECHR, art. 3. Canada is not a party to the ECHR.
172 The decision indicates “
the direction that international law is evolving”: "Tortured Logic" at para. 43.
173 Northern Ireland Case, at para. 167.
174 She was detained over a period of three days during which she must have been bewildered and disoriented by being kept blindfolded, and in a constant state of physical pain and mental anguish brought on by the beatings administered to her during questioning and by the apprehension of what would happen to her next. She was also paraded naked in humiliating circumstances thus adding to her overall sense of vulnerability. Aydin v. Turkey, App. No. 23178/94 (1998) 25 E.H.R.R. 251 at para. 27.
175 Raninen v. Finland (1997) VI Eur Ct. H. R. 2260 at para. 55.
176 Northern Ireland Case, at para. 167.
177 For a discussion on this point, for example "Tortured Logic" at 45.
178 Tomasi v. France, No. 12850/87  ECHR 53 (Aug. 27, 1992) at para. 45.
179 Ibid., at para. 112.
180 Ibid., at para. 113.
181 Ribitsch v. Austria (1995) 336 E.C.H.R. (Ser. A) 6 at para. 12.
182 Ibid., at para. 38.
183 Tekin v. Turkey, App. no. 52/1997/836/1042 9 June 1998 at paras. 49 and 54.
184 The Greek Case, 1969 (1972) 12 Yearbook of the European Convention on Human Rights at 74.
185 Northern Ireland Case, at para. 167.
186 Raninen v. Finland (1997) VI Eur Ct. H. R. 2260, Commission Report No. 20972/92 Oct. 24/1996.
187 East African Asians v. United Kingdom (1981) 3 E.H.R.R. 76, at para. 189.
188 The Judgment Concerning the Interrogation Methods Implied by the GSS, Supreme Court of Israel, sitting as the High Court of Justice, 6 September 1999, official website of the Israeli Supreme Court http://www.court.gov.il (last visited 6 January 2008), at para. 18. [GSS Practices Case]
189 GSS Practices Case at para. 23. See generally Cohen, "Democracy and the Mis-Rule of Law: The Israeli Legal System's Failure to Prevent Torture in the Occupied Territories" (2001) 12 Ind. Int'l & Comp. L. Rev. 75; and Guiora & Page, "The Unholy Trinity: Intelligence, Interrogation and Torture" (2006) 37 Case W. Res. J. Int'l L. 427.
190 Ibid., at para. 29.
191 Ibid., at para. 31.
192 Ibid., at para. 26.
193 In this vein, consider ICRC Commentary GCIII: “
anything which attacks the internees personal dignity without being necessary for security reasons, is to be banned as inhuman.”
194 See Posner & Vermeule, "Should Coercive Interrogation Be Legal?" (2006) 104 Mich. L. Rev. 671.
196 R. v. Perka  2 S.C.R. 232. Subsequently, in R. v. Latimer,  1 S.C.R. 3, the Supreme Court articulated the elements of necessity as follows: (1) the requirement of imminent peril or danger; (2) the requirement of no reasonable legal alternative; and (3) the requirement of proportionality between the harm inflicted and the harm avoided.
197 R. v. Latimer, at para. 29.
198 R. v. Latimer, at para. 38.
199 R. v. Latimer, at para. 31.
200 Rubel, "A Missed Opportunity: The Ramifications of the Committee Against Torture's Failure to Adequately Address Israel's Ill-Treatment of Palestinian Detainees" (2006) 20 Emory Int'l L. Rev. 699, at 715-716.
201 For a discussion on the Supreme Court of Canada's most recent statement on the extraterritorial application see R. v. Hape,  2 S.C.R. 292.
202 Section 12 provides: “
Everyone has the right not to be subjected to any cruel and unusual treatment or punishment”.
203 R. v. Smith,  1 S.C.R. 1045.
204 See McIntyre and Le Dain JJ. in R. v. Smith,  1 S.C.R. 1045 at 1085 and 111 respectively.
205 Suresh v. Canada (Minister of Citizenship and Immigration),  1 S.C.R. 3 at para. 51. The Court also wrote that “[
w]hen Canada adopted the Charter in 1982, it affirmed the opposition of the Canadian people to government-sanctioned torture by proscribing cruel and unusual treatment or punishment in s. 12”.
206 The Supreme Court of Canada has not explicitly found that section 12 should be interpreted in conformation with Canada's treaty obligations. In R. v. Smith however, Lamer J. does quote ICCPR art. 7 and cites UDHR art. 5 and ECHR art. 3 in his analysis of section 12.
207 Kindler v. Canada (Minister of Justice) (1991) 67 C.C.C. (3d) 1, at paras 145-149.
208 R. v. Morrisey (2000), 148 C.C.C. (3d) 1 at 16-17. These principles were reviewed with approval in R. v. Wiles,  3 S.C.R. 895.
209 Kindler v. Canada (Minister of Justice) (1991) 67 C.C.C. (3d) 1, at para. 152.
210 Ibid., at para. 152 citing Justice Lamer's decision in R. v. Smith.
211 R. v. Wiles,  3 S.C.R. 895.
212 Canada (Minister of Employment and Immigration) v. Chiarelli,  1 S.C.R. 711.
213 Charkaoui v. Canada (Citizenship and Immigration),  1 S.C.R. 350. See also El Megreisi v. Libyan Arab Jamahiriya 440/1990 HRC, GAOR 50th Session, 23 March 1994 (being held by the State indefinitely, without any contact with the outside world is inhuman).
214 Report of the Special Rapporteur on the Question of Torture, E/CN.4/2006/6, at para. 34.
215 Ibid., para. 41.
- Date modified: