Why So Secret? Justice Canada’s OPCAT Consultation Questions

Frequent visitors to the Canada OPCAT Project website may recall that we tried in 2018 to obtain a copy of Justice Canada’s legal analysis of the country’s potential accession to the OPCAT. In response to an Access to Information & Privacy Request filed in June 2018 Justice Canada released just 41 pages of a 281-page report, mostly in a highly redacted format.

Not to be outdone by ministerial opacity, the Canada OPCAT Project combed over these slim pickings to discover that Justice Canada had written to Canada’s provinces and territories in September 2016, seeking their views on potential accession to the OPCAT.

Listed below are the OPCAT-related questions which Justice Canada had put to the country’s 10 provinces and 3 territories.

This information was obtained through a series of access to information requests, which the Canada OPCAT Project filed in early December 2018 with a cross-section of provinces and territories. Simply put, we very politely requested copies of their responses to Justice Canada’s OPCAT consultation letter from September 2016.

To date, several provinces have replied positively to such access to information requests, providing us with both Justice Canada’s list of OPCAT-related questions and the responses to these questions.

Predictably, a small number of provinces (no territories, to date) were less magnanimous and refused to do so on various purported legal grounds. Other provinces, however, have mercifully displayed a much greater commitment to transparent and open government. After all, why the secrecy?

In this very same connection it bears noting that the Canadian government has been stating publicly before the international community that it will consider ratifying the OPCAT since 2006. Most recently it did so before the UN Human Rights Council and UN Committee against Torture in Geneva in late 2018.

Immigration detention
Palais des Nations, Geneva by UN Photo/Jean-Marc Ferre.

Paradoxically, however, the OPCAT consultation process has remained both closed and opaque, a reality to some extent recognized by the Canadian delegation during the country’s review by the UN Committee against Torture in November 2018. It can therefore only be hoped that Canada acts on its publicly stated commitment in Geneva to open up the future OPCAT consultation process, including to civil society and Indigenous groups.

Once all the responses to the above access to information requests have been received, the Canada OPCAT Project will make public its analysis of the findings. For the moment readers can find below Justice Canada’s list of OPCAT-related questions which comprised its initial round of consultation with the provinces and territories in autumn 2016, begging the simple question why has it been all so secret?

1. Bearing in mind the definition provided in Article 4 of the OP-CAT, what are the places of detention under the responsibility of your department or within your jurisdiction?

2. What bodies, if any, currently exist to monitor the treatment of persons deprived of their liberty? (e.g. Ombudsman, Correctional Investigator of Canada, police or military complaints commissions, NGO, special advocates, monitoring boards, human rights commission)

3.  Do existing monitoring bodies comply with the requirements of Articles 18-23 of the OP-CAT? In particular: 

a) Are the bodies independent of government?

b) Do existing monitoring bodies cover all places of detention under your responsibility or jurisdiction? If not, what places would be left out?

c) Do existing bodies have the power to regularly examine the treatment of persons deprived of their liberty with a view to strengthening, if necessary, their protection against ill-treatment? Are the bodies specifically mandated to conduct regular and preventive visits (as opposed to visits in response to an individual complaint)?

d) Are there any restrictions on accessing places of detention and their installations and facilities? Can existing bodies conduct unannounced visits?

e) Do existing bodies have access to information concerning the number of persons deprived of their liberty; the number of places of detention; their location; and information concerning the treatment and conditions of detention of persons deprived of their liberty? What restrictions, if any, apply?

f) Are existing bodies authorized to privately interview detainees, and others who may wish to provide information?

g) Can existing bodies choose the places they want to visit and the persons they want to interview?

h) Do existing bodies have the power to make recommendations to the relevant authorities with the aim of improving the conditions and the treatment of detainees?

i) Do existing bodies have the power to submit proposals and observations concerning existing or draft legislation dealing with the treatment and conditions of detention of persons deprived of their liberty?

j) Do existing bodies have the necessary authority to protect information they obtain in confidence from third parties? Are there any exceptions or circumstances under which confidentiality may be waived and, if so, which ones?

k) What privileges and immunities, if any, do members of existing bodies have in the course of performing their duties? Most importantly, do they have immunity from legal proceedings, and from being compelled to testify in court, for actions or matters related to the exercise of their functions? Are there any exceptions, or situations where a privilege or immunity may be waived? Would it make sense for the same privileges and immunities to apply to NPM members, or would changes be required?

l)  Are annual reports issued and made public?

m) Are existing bodies prevented from publicly disclosing the findings of their visits, i.e. are observations to be shared confidentially with the authorities? 

4.  Please answer the questions under the section on privacy and access to information at pages 31-33.

5. If Canada acceded to the OP-CAT, what would be the preference of your department/jurisdiction in terms of an NPM model? Would the preference be for a single body (new or existing) or multiple bodies (new or existing)? If the preference is for multiple NPMs, would there be a mechanism to assist with coordination? Does your jurisdiction have a preliminary sense of which body or bodies would be designated or established, and for what places of detention? Were potential NPMs consulted and, if so, were they favourable to taking on this new role? 

6.  In order to comply with the OP-CAT, does your department or jurisdiction envisage the necessity to amend legislation, regulations or policies? If so, which ones? For example, amendments might be required to legislation governing existing oversight bodies, legislation on privacy and/or access to information, and/or policies regulating a particular institution. Does your department or jurisdiction envisage the need for new legislation or policies? 

7.  Would additional resources be required (i.e. financial and human resources) to meet OP-CAT obligations in your jurisdiction?

8. If Canada acceded to the OP-CAT, does your jurisdiction have any views of whether measures should be put in place to ensure coordination between federal and provincial/territorial NPMs?

9.  The federal government plans to consult a wide range of stakeholders on Canada’s potential accession to the OP-CAT (in particular, whether they are supportive or not), and on possible NPM options at the federal level. These include Aboriginal governments which may have responsibility or shared responsibility over places of detention in First Nations and Inuit communities, civil society, and Aboriginal groups. Does your jurisdiction have any recommendation on Aboriginal governments, Aboriginal groups, or civil society organizations to include in the consultations? Would your jurisdiction like to be part of those consultations? Does your jurisdiction plan on conducting its own stakeholder consultations with respect to the establishment of NPMs?

10. Please feel free to communicate any other information or concern.

11. What kinds of health and social care institutions, other than psychiatric hospitals or psychiatric units in hospitals, exist in your jurisdiction where individuals can be deprived of their liberty, even if only temporarily? What oversight bodies, if any, exist to monitor treatment in these places?

12. In the criminal/corrections context, are there places of detention or imprisonment where individuals have freedom to leave the place under certain conditions? Please indicate what oversight bodies, if any, exist to monitor treatment in these places.

Read more about the Canada OPCAT consultation process here.

Read more about the Canada OPCAT Project’s recent Access to Information Requests.