Scant Information Revealed About Canadian OPCAT Process

A recent request filed under Canada’s Access to Information Act (ATIP) has regrettably brought us no further forward in determining if, how and when Canada might ratify and implement the OPCAT. The information surrendered through the Canada OPCAT Project’s ATIP request can only at best be described as scant.

Not only were 240 pages of a requested report by Justice Canada on its legal analysis on accession to the OPCAT withheld, but of those 41 pages of information which were provided, most were highly redacted. They therefore contain few useful insights into the on-going OPCAT ratification process in Canada.

It is self-evident that it remains next to impossible for civil society to comment on the Canadian Government’s intention to ratify the OPCAT and put in place an NPM if such basic information is not shared.

Similarly, civil society may never be in a fully informed position to thoroughly evaluate the relative merits of designating one or another existing oversight body as the future NPM or of creating such an entity from scratch, if such information is withheld by government.

ATIP request            ATIP request

The reasons for suppressing the main trunk of Justice Canada’s legal analysis on accession to the OPCAT were outlined in a letter to the Canada OPCAT Project, as follows:

“Please find enclosed the releasable documents relevant to your request (41 of 281 pages). You will notice that information is exempt from release by virtue of sections 14 [federal-provincial affairs], 15(1) [international affairs and defence], 19(1) [personal information], 21(1)(a) [advice or recommendations], 21(1)(b) [consultations or deliberations] and 23 [solicitor-client privilege] of the Access to Information Act. In addition, please note that information has been excluded pursuant to section 69 [Cabinet confidences] of the Act … This completes our processing of your request.”

It should be recalled that, as long ago as 2010, the UN Subcommittee on Prevention of Torture stated in its key guidance on OPCAT implementation that an “… NPM should be identified by an open, transparent and inclusive process which involves a wide range of stakeholders, including civil society.”

It was for this very reason that the Canada OPCAT Project filed an ATIP request in early June 2018 with a view to obtaining a copy of the Department of Justice’s legal analysis of Canada’s potential accession to the OPCAT. It therefore remains extremely disappointing that this request was not complied with in the spirit of the application.

Readers may also recall that Canada first stated that it would consider ratifying the OPCAT as long ago as 2006. Over the years Canada has reaffirmed this same position repeatedly before the international community. As recently as 21 September 2018 Canada reported back to the Human Rights Council in Geneva, stating that it accepted the UPR recommendation that it consider the ratification of the OPCAT.

There is consequently something unquestionably paradoxical when a government agency responds to a domestic request for greater transparency of an internationally declared intention to ratify a key United Nations human rights instrument with such an exercise in opacity.

The Canada OPCAT Project will follow-up this matter with the Office of the Information Commissioner of Canada.