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Complicity in torture actionable?

A terrific decision has come out of Ottawa in Abousfian Abdelrazik’s case against Lawrence Cannon and the Canadian government for damages resulting from Canada’s complicity in his reported torture by Sudanese authorities and Canada’s sustained refusal in permitting him to return home.  Readers of these pages will know that the BCCLA  recently launched a lawsuit in conjunction with Mr. Abdelrazik and the International Civil Liberties Monitoring Group to challenge Canada’s domestic implementation of the UN Security Council’s 1267 Regime.

Madam Prothonotary Roza Aronovitch’s judgment is significant, in part, because it recognizes for the first time a private law cause of action for torture.  While the issue of whether such a cause of action exists — and whether Mr. Abdelrazik has proven that he has suffered damage as a result of Canada’s purported complicity — remains to be resolved, it is telling that the Court refused to exclude the possibility that such a cause of action could be sustained.  In discussing her reasons for permitting Mr. Abdelrazik’s claim to go forward, Madam Prothnotary Aronovitch writes:

These pleadings raise an important issue as to the scope and content of Canada’s international law obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the prohibition against torture in customary international law.  The linkage between international law and domestic law is evolving.  The plaintiff, moreover, is supported by academic opinion and jurisprudence which evidently leaves open the possibility that courts may, in the proper circumstances, recognize a cause of action for violation of customary international human rights.  It is therefore not plain and obvious that the plaintiff can not succeed, and it is premature to foreclose the debate at this juncture.

This decision can potentially open the door for individual damages in other instances where Canada is alleged to have been  complicit in torture, such as with Benamar Benatta.