Canadian Correctional Investigator – When Will Canada Sign the Optional Protocol to the Convention against Torture?

For a number of years, the Office of the Correctional Investigator has urged Canada to sign and ratify the United Nations’ Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT).  This international human rights instrument, which at last count had 88 States Parties and an additional 14 States Signatories, would create an independent mechanism responsible for carrying out periodic inspections of all places of detention in Canada.  

Signing on to the OPCAT would send a clear message that the risk of abuse exists in all contexts and all places where persons are deprived of liberty, inclusive of psychiatric facilities, immigration detention, police lock-ups, remand (pre-trial) and youth custody centres, as well as all provincial jails and federal penitentiaries across the country. With accession, all places of detention in Canada would be brought under an independent structure with specific authorities and powers to access and inspect these facilities and to talk with detained persons in private with the aim of preventing ill-treatment. There should be a sense of urgency to sign the OPCAT as further delays have important human rights implications for individuals deprived of their liberty.

Grills prison
Grilled Prison Window Flickr Creative Commons (2007).

Since coming into force in June 2006, Canada has repeatedly stated its intention to become a party to the OPCAT and even used this pledge to advance its candidacy for membership on the new UN Human Rights Council that year. Even with changes in government, Canada’s pledge to the international community remains unfulfilled. In May 2016, then Minister of Foreign Affairs Stephane Dion declared that the Optional Protocol “will no longer be optional for Canada in the future.” However, in the latest Universal Periodic Review (UPR) of Canada’s international human rights record, Canada reported back to the UN Human Rights Council in September 2018 that, while it accepted the UPR recommendation to “consider” ratification of the OPCAT, “…a decision on Canada’s accession has not yet been determined.” Twelve years later, we are no clearer or certain of whether or when Canada will make good on its promise.

The latest UN Committee against Torture exercise reveals that, while Justice Canada has completed its legal analysis of OPCAT obligations and some consultations on the impact of accession have occurred with the provinces and territories, there is still no transparent, inclusive or expedited roadmap for Canadian ratification of the OPCAT. I am of the view that the necessary legal and policy work should not delay Canada becoming a signatory.  Even after signing, Canada would still have the option, at ratification, to defer domestic implementation of the instrument by up to a maximum of three years to bring domestic practice into compliance with OPCAT obligations, which include establishing a National Preventive Mechanism (NPM).  Signing on to the OPCAT would have the added advantage of keeping the consultative process on a clearly defined timetable.  Government and civil society consultations are necessary, but these do not need to be protracted, and should not serve as an excuse for delays or not doing the right thing. Other states, with equally complex divisions of power, responsibility and representation, have ratified OPCAT, including Germany, United Kingdom, New Zealand, and, most recently, Australia. Canada is an outlier on this issue, which undermines our moral authority to act or condemn torture in places where it is still rife.

Prison by Insunlight (2007).

In meeting the terms of the OPCAT, there are considerable advantages in the federal government establishing a new, single and dedicated NPM for all places of detention under federal authority (penitentiaries, immigration holding centres, RCMP cells, Canadian Forces Service Prison and Detention Barracks).  The designated NPM would have the added benefit of serving as a centre of national expertise and assistance for the rest of the country as Canada moves toward full ratification of the treaty.  It is important that the designated NPM be independent, free from government influence, sufficiently resourced and properly mandated to carry out its work effectively.

Ratification and implementation of the OPCAT would add an additional layer to existing correctional oversight in Canada. In the case of federal corrections, a system of regular penitentiary inspections conducted at the national (NPM) level and internationally by the UN Subcommittee on the Prevention of Torture (SPT), with both bodies focused on prevention, would complement the roles and responsibilities of my Office, which is largely complaint-driven. The Concluding Observations of the UN Committee against Torture, adopted in December 2018, suggest that Canada is not sheltered from cases of individual or systemic ill-treatment of detained persons:

over-representation of Indigenous people in the prison population;

body cavity searches that may be abusive or violate human dignity;

lack of appropriate capacity, resources and infrastructure to manage seriously mentally ill prisoners;

deficiencies in general standards and conditions of detention, including sanitation, hygiene and insufficient food;

preventable deaths in custody; and,

use of solitary confinement. 

Regardless of whether a new or specialized body or combination of existing institutions are designated to meet OPCAT obligations, Canada needs to get on with the ratification process to make it clear that this country supports efforts, at home and abroad, to protect the rights and dignity of all persons deprived of their liberty regardless of cause, circumstance or context.  

Ivan Zinger, J.D., Ph.D.

Ivan Zinger, Correctional Investigator of Canada, published as a Linkedin article, 11 January 2019.

Correctional Investigator Dr Ivan Zinger

Read the Correctional Investigator’s Linkedin article in French.

Read the Correctional Investigator’s Annual Report 2017-2018 comments in support of Canada’s adhesion to the OPCAT.