New Critical OPCAT News Feature

In a trenchant analysis published this past week in Canadian Dimension journalist Lital Khaikin throws into sharp focus the Canadian Government’s interminable procrastination in relation the country’s OPCAT ratification process.

Titled Unconscionable treatment continues in Canadian detention centres, the article offers a hard-hitting, resonant account of Canada’s failure to make headway in relation to ratifying the human rights instrument. The noted sting in the tone of the news piece is with good reason, given the mind-rattlingly slow progress and formlessness of the overall ratification process.

The article sees the light of day when other key human rights actors in the country have urged Canada to finally underwrite the OPCAT treaty.

Earlier this month the Canada OPCAT Project filed an Access to Information and Privacy Request to try to determine the extent of any domestic progress in this same connection. Whether there has been a tilt in the balance remains to be seen.

In her 21 January 2021 news article author Lital Khaikin writes:

“The turbulent past year has cast a spotlight on the systemic problems with Canada’s carceral system, from criminal incarceration to migrant detention. This past summer saw protests against police brutality and the inhumane conditions endured by undocumented migrants in Canada, as well as calls to defund bloated police budgets and growing momentum for the prison abolition movements.

Despite this mounting criticism, there has been little discussion of a key international treaty on human rights that Canada has repeatedly failed to ratify.”

The in-depth article follows on from an earlier analysis published in mid-September 2020 titled Canada drags its feet on international convention against torture. Drawing on an array of high-profile human rights cases in Canada as well as interviews with key activists, Lital Khaikin cuts to the heart of the matter in her new feature, making another fortuitously timed and highly welcome contribution to this bone-weary domestic human rights debate.


Read Lital Khakin’s new article, Unconscionable treatment continues in Canadian detention centres.

Read the first article in this three-part series, Canada drags its feet on international convention against torture.

See other Canadian Dimension articles by author Lital Khaikin.

Posted by mp in Canada, OPCAT, Ratification, 0 comments

Two Years of OPCAT In/action? Circle As Appropriate.

Remarkable as it may seem, the lapsed and seemingly collapsed process of ratification of the OPCAT is still under consideration in government circles – or so we were informed in the final communiqué of the Federal, Provincial and Territorial Ministers Responsible for Human Rights Virtual Meeting from 10 November 2020.

As recently highlighted on this website, co-hosted by the Government of Nova Scotia and the Federal Government over two half-days on 9-10 November 2020, the said meeting’s final communiqué offered an astonishing insight into the glacial pace to ratify the OPCAT in Canada in recent years.

More than two years ago the UN Committee against Torture urged Canada during the examination of its 7th periodic report in Geneva to expedite the OPCAT ratification process. Yet practically untinged by troublesome public scrutiny the process is said to be somehow on-going, despite evidence to the contrary.

UNCAT 65th session Canada Probed
Palais Wilson – OHCHR in Geneva by UN Photo/Jean-Marc Ferré (2018).

Brimming with enthusiasm at the gates of a new year, the Canada OPCAT Project has opted to actively seek further information about the extent of any domestic OPCAT government consultation process. Accordingly, on 10 January 2021 armed with an Access to Information and Privacy (ATIP) Request the project sought the following data from Global Affairs Canada:

“In its Concluding Observations in relation to Canada’s 7th periodic report under the UN Convention against Torture, the UN Committee against Torture recommended that Canada should:

(d) Complete the process towards accession to the Optional Protocol to the Convention, while introducing mechanisms to ensure the participation of civil society, indigenous groups and other stakeholders in the entire process.

In view of this key United Nations recommendation, please provide copies of any written communications between Global Affairs Canada and other federal, provincial, and territorial government departments concerning the potential ratification and implementation of the Optional Protocol to the UN Convention against Torture for the period 1 December 2018 to 31 December 2020.

In this connection please provide copies of any emails, letters, backgrounders, briefing notes, presentations, or other relevant documents on the question of Canada acceding to the Optional Protocol to the UN Convention against Torture.” 

It is fully appreciated that, with the COVID-19 pandemic mercilessly showing no end in Canada and many civil servants working remotely, an official response may take a while. No matter, patience is a virtue, and we will keep you informed if and when a response should rattle the door.

In the two-and-a-half-year lifetime of the Canada OPCAT Project the initiative has often utilized ATIP Requests to seek information about the OPCAT ratification/consultation process in Canada. This approach has primarily been due due to the pittance of publicly available information about Canada’s stated intent to ratify the instrument, the sharp contradiction of which will not be lost on readers.

To this very point, in late December 2019 an ATIP Request was submitted to Global Affairs Canada to determine to what extent Canada had acted on a key international recommendation to ensure greater consultation with civil society and Indigenous organizations on the ratification of the OPCAT. The response, some six months overdue, was regrettably entirely underwhelming.  

Other past ATIP Requests have also produced very mixed results, strongly suggesting that the Canadian authorities are far less open and transparent than they claim in sharing run-of-the-mill human rights information with the public.  

Regardless, in 2021 the Canada OPCAT Project will continue to vault above such reluctance. If and when a response is elicited in relation to the latest ATIP Request, you can be sure to find it posted here – at our end, at least, in an entirely unredacted form.  


Posted by mp in OPCAT, Ratification, UNCAT

Transparency & Accountability for Incarcerated Indigenous Women in Canada

Launched to coincide with the International Day for the Elimination of Violence against Women on 25 November 2020 the Native Women’s Association of Canada (NWAC) issued a new report, Minimizing COVID-19-related Risk Among Incarcerated Indigenous Females Through Transparency and Accountability.

Penned by authors Abrar Ali, Chaneesa Ryan, Hollie Sabourin and yours truly the paper, among other things, calls on Canada to finally ratify and effectively implement the Optional Protocol to the UN Convention against Torture.

Prison – Drew Duncan (2010).

The paper’s abstract reads as follows:

“Due to the increased risk of COVID-19 in places of detention such as prisons, greater transparency and independent external oversight is required. In Canada, Indigenous women represent over 41% of federally incarcerated women, despite just representing 4% of the total female population. Epidemiological data shows that Indigenous inmates and federally incarcerated women have been disproportionately impacted by the infection. As a result, federally incarcerated Indigenous women are at an elevated risk based on their over-incarceration, gender and ethnicity. NWAC is calling for increased transparency and oversight of places of deprivation of liberty and swift, concrete and meaningful follow-up to Canada’s different national inquiries in order to keep Indigenous women safe from harm.”

The new report also echoes concerns recently expressed by the UN Special Rapporteur on the Rights of Indigenous Peoples about the heightened risks faced by Indigenous prisoners during the COVID-19 pandemic.

The paper calls for greater transparency and accountability at all levels, institutional and governmental, which is especially compelling during the current COVID-19 pandemic in order to keep Indigenous women safe from harm, reduce their institutional and societal risk, and address entrenched discriminatory practices.

It seeks to address all of these issues, opening with a focus on the national travesty that has resulted from the ‘Indigenization’ of Canada’s federal prison population, so described by the Office of the Correctional Investigator earlier in 2020.

The third section of the paper looks in greater depth at the exercise of independent oversight of prisons during the on-going pandemic, drawing on the international guidance which has emerged on this issue in past months. The on-going failure of Canada to make progress in relation to the ratification of the OPCAT is also discussed.

Feedback on the paper – good or bad – is warmly welcomed.


Read the NWAC report, Minimizing COVID-19-related Risk Among Incarcerated Indigenous Females Through Transparency and Accountability.

See the Office of the Correctional Investigator’s report on the ‘Indigenization’ of the federal prison population.

See the report of the UN Special Rapporteur on the Rights of Indigenous Peoples and the heightened risks for Indigenous prisoners during the COVID-19 pandemic.

Read the entry on Canada in Penal Reform International’s 2019 report, Global Prison Trends.

Posted by mp in Canada, COVID-19, Indigenous people, Oversight bodies, Prisons

ACAT Canada – Urgent Action on Immigration Detention in Canada

Just this week the highly respected human rights organization ACAT Canada issued a new urgent appeal, ‘Canada – La surveillance des pratiques de l’Agence des services frontaliers en matière de mauvais traitements’.

In the urgent appeal, which was published on 23 November 2020, ACAT Canada calls on Canadian human rights activists to write to Prime Minister Trudeau and Minister of Justice & Attorney General Lametti, demanding that an OPCAT-compliant oversight body be instituted for places of immigration detention operated by the Canadian Border Service Agency (CBSA) and to similarly oversee the agency’s wider activities.

ACAT Canada – Appel à l’action urgents.

Based on an oversight model first advanced by the Canadian Council for Refugees in March 2016, ACAT Canada’s appeal forcefully argues that such a mechanism would, among other functions, fill the current void in oversight of places of immigration detention in Canada. In November 2018 the UN Committee against Torture had also urged Canada to establish an effective and independent oversight mechanism of the CBSA and its detention facilities.

At present such facilities are monitored by the Canadian Red Cross under an agreement with the CBSA. To date, however, just one report of the Canadian Red Cross’ monitoring activities has been made public. Consequently, such facilities remain largely closed off from public scrutiny.

More specifically, the ACAT Canada appeal urges the following (available in French):

Nous vous suggérons d’écrire au premier ministre du Canada et à son ministre de la Justice, afin que soit mise en œuvre une forme efficace de mécanisme indépendant de surveillance des actions de l’ASFC. Aucun être humain ne devrait voir sa dignité dégradée en raison d’un manque de reddition de comptes d’une agence fédérale. En s’inspirant du modèle de Mécanisme d’imputabilité de l’Agence des services frontaliers du Canada proposé par le CCR en 2016 et en ratifiant l’OPCAT comme promis en diverses occasions, le Canada assurerait les droits humains des personnes migrantes, et ce, en accord avec la Convention relative au statut des réfugiés (articles 31 et 32 sur les mesures pénales contre des réfugiés irréguliers et sur la règle de non-refoulement, aussi stipulée à l’article 3 de la Convention contre la torture).

The reference to the OPCAT is very apt: after all, how many years have now passed since we were informed that the Optional Protocol could no longer be optional for Canada? Readers can access ACAT Canada’s timely appeal here.

For the time-poor, children-many, and/or just plain-busy & Covid-19-frazzled denizens of Canada today the action also includes a very welcome suggested draft letter to spur and inspire us into action. Are you ready?!


Find out more about ACAT Canada, including how to support the organization.

Read the Canadian Council for Refugees proposed oversight model of immigration detention in French and English.

Read a recent update on the state of immigration detention in Canada during the COVID-19 pandemic.

Find out more about the Canadian Red Cross’ monitoring activities of places of immigration detention.

Posted by mp in Immigration detention, Independent detention monitors, OPCAT, Oversight bodies

Make Your Mark – The Spotlight On Solitary Petition

A civil society initiative launched this week throws a much-needed spotlight on solitary confinement in Canadian prisons. Comprising a whole series of webinars and a related petition, the aptly titled Spotlight on Solitary action brings into focus frequent resort to the use of solitary confinement in prisons in Canada in all its different shapes and forms.

Co-sponsored by the Canadian Association of Elizabeth Fry Societies, John Howard Society of Canada, Prisoners’ Legal Services, and the Schulich School of Law at Dalhousie University, the 15-day series of events will examine in detail the ongoing practice of solitary confinement in Canada. An accompanying press release outlines the motivation behind the initiative, as follows:

“While the federal government may have announced that solitary confinement has been abolished in Canada, this 15-day spotlight … will bring to light all of the ways in which the practice of solitary confinement continues to persist in Canada, just by any other name: SIUs, Restrictive Movement Routines, Mental Health Monitoring, Medical Isolation, Lockdowns, and Dry Celling.” 

Dr. Adelina Iftene of Schulich School of Law at Dalhousie University is quoted in the press release as stating:

“Solitary confinement is a practice not a place. Regardless of the unit or the reason, when one is locked up for long stretches of time without meaningful human contact, one is experiencing solitary confinement. Irrespective of the name we give it, solitary confinement has devastating effects on the mental and physical wellbeing of individuals, undermines one’s chances of successful reintegration into community, and raises serious legal and ethical questions – this spotlight will make that clear to the public and to policy makers.”

The 15-day webinar series is also complemented by an online petition with a very welcome focus on the OPCAT. The petition calls on the Federal Government to undertake five measures, namely:

1. Establish a Commission of Inquiry into the federal prison service to examine the use of solitary confinement in all forms and to make recommendations to ensure the rights and well-being of prisoners are being safeguarded;

2. Amend the Corrections and Conditional Release Act immediately to define solitary confinement  and to prohibit all forms of prolonged solitary confinement consistent with the United Nations Nelson Mandela Rules;

3. Develop and implement alternatives so that solitary confinement can be abolished;

4. Provide legal aid so that federal prisoners have access to counsel to protect their Charter and statutory rights;

5. Ratify the Optional Protocol to the Convention Against Torture.

While Canada’s ratification of the OPCAT is long overdue, the Canadian government appears no closer to putting pen to paper, as highlighted in the communiqué of the FPT meeting of ministers responsible for human rights held on 9-10 November 2020.

If you are unable to sign the petition, then why not watch a webinar or two on the use of solitary in Canadian prisons? Launched on Monday 16 November 2020, there are numerous events to watch live this and next week and at least a couple of past webinars to watch on demand. Please visit the Spotlight on Solitary YouTube page for both live and past events.

Spotlight on Solitary webinars.

The 17 November event titled By Any Other Name: Segregation in the Maritimes, for example, comprised a highly instructive and stimulating discussion on the use of segregation, medical isolation, suicide watch, dry celling, and COVID-19 quarantine in prisons in the Maritime provinces. Key speakers Sheila Wildeman, Harry Critchley, Claire McNeil, and Emma Halpern, and Moderator Adelina Iftene conveyed a highly interesting, albeit disturbing picture of the use of such practices in prisons on Canada’s east coast. Better still, if you missed the webinar, you can watch the exchange on demand here.

Please support this highly welcome initiative by consulting the Spotlight on Solitary event page for information about the many other interesting webinars running until 30 November 2020. If you can, please also take a closer look at the petition, which urges Canada to – dare we say – finally ratify the OPCAT and join the other 90 states which have done so worldwide.


Read the Spotlight on Solitary initiative press release.

Please consider signing the petition and please view the list of webinars.

Visit the initiative’s YouTube page to watch both live and past webinars.

Posted by mp in Canada, OPCAT, Prisons, Solitary confinement

OPCAT in Canada Update: Nothing To Report Whatsoever

For just the third time in nearly 33 years, this past week Canada’s federal, provincial and territorial (FPT) ministers with responsibility for human rights met, albeit virtually, to discuss key priorities in relation to the country’s human rights obligations. Who said human rights were not important?

Co-hosted by the Government of Nova Scotia and the Federal Government over two half-days on 9-10 November 2020, the meeting’s final communiqué offered an astonishing insight into how little progress has been made to ratify the OPCAT in Canada in recent years.

Simply put, OPCAT-wise, the final communiqué had nothing whatsoever substantive to report.

Nothing to Report? – Image copyright of the Canadian Civil Liberties Association (2020).

The OPCAT had previously been discussed during a meeting of FPT ministers with responsibility for human rights, held in Gatineau, Quebec in December 2017 (the second in 30 years no less). Astoundingly, three years later there appears next to nothing to report. Uninspiringly, the final communiqué of the November 2020 FPT ministerial meeting could offer nothing more than the following in way of an update:

“Ministers discussed Canada’s consideration of accession to additional UN human rights treaties, welcoming Canada’s adherence to the Optional Protocol to the Convention on the Rights of Persons with Disabilities, which now offers Canadians recourse to make a complaint at the international level if they believe their rights under the Convention have been violated. Ministers also discussed the consideration of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, reiterating the importance of preventing mistreatment of detainees, as well as the Convention for the Protection of all Persons from Enforced Disappearance.”

The French version of the statement can be accessed here.

The lack of any concrete information regarding the ratification of the OPCAT is all the more striking given that the event was officially tabled as an FPT meeting of ministers responsible for human rights ‘to discuss key priorities in relation to Canada’s human rights obligations.’ Evidently, the OPCAT remains anything but a human rights priority for Canada at the present time.

What is more, the provinces of Alberta and Quebec only participated in the meeting as observers and did not even sign onto the meeting’s final communiqué.

Critical moment UNCAT

It should be recalled that two years ago this month the UN Committee against Torture urged Canada during the examination of its 7th periodic report in Geneva to expedite the OPCAT ratification process. The UN expert body recommended that Canada:

“Complete the process towards accession to the Optional Protocol to the Convention, while introducing mechanisms to ensure the participation of civil society, indigenous groups and other stakeholders in the entire process.” (§21d).

The Canada OPCAT Project closely followed Canada’s review, posting several articles in relation to the 21 and 22 November 2018 sessions.

Yet two years on, precious little appears to have become of the UNCAT recommendation either to expedite the OPCAT ratification process or to consult with civil society and Indigenous representatives. Global Affairs Canada’s August 2020 six-month overdue response to a Canada OPCAT Project Access to Information and Privacy Request illustrated just how little consultation on the OPCAT has taken place since the 2018 Geneva review.

A joint statement of 26 Canadian CSOs participating in the virtual event, issued on 12 November 2020, criticized the outcome of the FPT ministerial meeting, including in relation to the much anticipated ratification of OPCAT:

“In 2017 Ministers committed to consider moving towards acceding to three important international human rights treaties. Canada did subsequently become a party to one of those instruments, the Optional Protocol to the UN Convention on the Rights of Persons with Disabilities. But there appears to be no prospect of Canada becoming party to the Optional Protocol to the UN Convention against Torture, which establishes crucial mechanisms for the prevention of torture, or the UN Convention on Enforced Disappearances at any point in the near future. At this week’s meeting ministers went no further than to reiterate that they are considering the possibility of accession to these treaties.”

It was notable that during the FPT meeting the Chief Commissioner of the Canadian Human Rights Commission, Marie-Claude Landry, had also urged Canada to ratify the OPCAT, commenting that it would bolster the international human rights framework and contribute to Canada’s human rights progress.

To the Canada OPCAT Project the lack of progress in relation to the OPCAT comes as no real surprise. Since the UN Committee against Torture’s examination of Canada in Geneva in 2018 Global Affairs Canada, the lead government agency on the OPCAT, has failed to issue a single public update regarding the OPCAT ratification process.

In truth, it would seem that Canada has had nothing to report on the OPCAT for quite some time now, which, if anything, at least makes it consistent, albeit in the most disappointing sense of the word.


Read the official 2020 FPT ministerial meeting press release, Federal, Provincial and Territorial Ministers Responsible for Human Rights Hold Virtual Meeting to Discuss Key Priorities in Relation to Canada’s Human Rights Obligations.

A French version of the statement is also available, Les ministres fédéraux, provinciaux et territoriaux responsables des droits de la personne tiennent une réunion virtuelle pour discuter des priorités clés relatives aux obligations du Canada en matière de droits de la personne.

Read the official 2017 press release, Federal, Provincial and Territorial Ministers from across the country gather to discuss Human Rights or Les ministres fédéraux, provinciaux et territoriaux de partout au Canada tiennent une réunion pour discuter des droits de la personne.

See the 12 November 2020 joint civil society statement, Federal-Provincial-Territorial Ministers Meeting: Collaborative action to uphold human rights in Canada still lacking.

Posted by mp in Canada, Civil society, Consultation, OPCAT, Ratification

Global Responses: COVID-19 Impacts on Immigration Detention in Canada

Few places of deprivation of liberty have escaped the full dull-thudding impact of the current global health crisis against their walls, with immigration detention being no exception. Global responses to the related challenges of the COVID-19 pandemic have predictably been extremely mixed.

This past week the International Detention Coalition (IDC) and Humanitarian and Development Research Initiative (HADRI) have published a very timely report throwing a vital spotlight on the issue titled ‘COVID-19 Impacts On Immigration Detention: Global Responses’. As noted in the press-release accompanying the launch of the report:

“Over the past months, immigration detention practices around the world have been changing rapidly as state and civil society actors respond to manage the multiple impacts of COVID-19. In some cases, these changes have been positive, leading to stronger protection of the rights of non-citizens. In others, they have led to the increased marginalisation of and discrimination against non-citizens.” 

IDC/HADRI Global Responses report.

The report also underscores the following essential point:

“COVID-19 does not discriminate, but laws, policies and practices concerning migration governance, immigration detention, and public healthcare shape the vulnerability of migrants and refugees to its spread and effects. The contributions in this joint edited collection highlight both positive and negative developments over the past year that need careful attention – and in some cases, urgent correction – for the health and wellbeing of all.”

The report offers highly readable snapshots of the global responses from 20 different countries – plus the European Union. Setting off with a disturbing insight into Australia’s ‘howling-at-the-moon’ fixation with immigration detention (aptly titled ‘Detention at all costs’), via Japan, which has reconsidered its former policy of indefinite immigration detention, before arriving in the US with its head-in-the-sand approach to the COVID-19 crisis and its severe impact on privately run prisons holding migrants, the report offers some very disparate global responses to the impact of COVID-19.

Fortunately, some states come out of the pandemic looking somewhat better than others, including Canada – albeit not entirely.

Through its pandemic-induced border closure with the US, Canada has drastically restricted its obligations under the 1951 Refugee Convention, eliciting considerable domestic criticism as a result, including from Amnesty International Canada, Doctors Without Borders, Canadian Association of Refugee Lawyers as well as the media. It has been left to UNHCR to make head or tail of asylum procedures in the context of the public health emergency.

In stark contrast, Canada’s response to mitigating the impact of COVID-19 on persons actually held in immigration detention have been reasonably progressive. In the new report Dr. Stephanie Silverman of the Thinking Forward Network has penned the concise two-page entry on Canada. Titled ‘Canada: The Cordon Sanitaire and the Shifting Threats of the COVID-19 Pandemic’, the piece presents an encouraging global response to the current global crisis. The following short excerpt reveals the extent to which the country’s immigration facilities have been emptied during the pandemic:

“On 17 March 2020, CBSA was officially detaining 353 people across its IHCs and in provincial jails. The population of IHC detainees fell quickly to 98 people (25 March) then 64 people (1 April) then 30 people (19 April). As of 19 April, 117 detainees were in provincial jails, corresponding with their categorization as “high-risk” detainees.”

At the time of writing, no more up-to-date statistics were available on the Canadian Border Service Agency website.

The CBSA detains immigrants in three main Immigration Holding Centres (IHCs) in British Columbia, Ontario and Quebec, but also uses provincial prisons. Currently, such facilities are subject to the independent monitoring of the Canadian Red Cross under an agreement with the CBSA. However, as there has been only very limited public reporting about conditions in such facilities (just one public report from 2017-2018) nothing is currently known about the circumstances in which detained immigrants are being held and, significantly, how the pandemic has impacted on their lives.

Viewed as a whole, author Stephanie Silverman offers a relatively positive assessment of the CBSA approach to decarceration, as follows:

“The Canadian case study shows a willingness to reduce detention and acknowledgement that prison health is public health: COVID-19 endangers not only detainees but also guards and staff, healthcare workers, legal advocates, and other visitors who bring droplets in to and out of the detention facilities.”

I Refuse – Anthony Miranda (taken from page 3 of the report).

The author also poses the very pertinent question whether this experiment will impact on public and government thinking about the acceptability of incarcerating migrants in the first place?

If one considers that immigration detention ought to be used as a last resort, one must also wonder why it takes a global pandemic to rattle prevailing orthodoxies in Canada regarding the actual good of locking up immigrants. Even then, as the IDC/HADRI report aptly illustrates, even this response has yet to be elicited in more than just a few other states, especially in one country not so far away.

Curiously, while certain provincial prison services have also resorted to far-reaching decarceration during the pandemic, the federal prison administration has shown a much greater reluctance to do so, despite initially paying lip-service to the possibility. With a second COVID-19 wave rapidly befalling the country, it remains to be seen whether such an approach will eventually prevail.


Read COVID-19 Impacts On Immigration Detention: Global Responses and the related press-release.

Lean more about IDC and HADRI.

Find out what the UN Committee against Torture had to say about immigration detention in Canada in 2018.

Read the Canadian Red Cross’ monitoring report of CBSA detention facilities for 2017-2018.

Browse past Canada OPCAT Project articles on immigration detention, such as Making Immigration Detention Less Harmful, An Australian OPCAT Focus on Immigration Detention & Global Compact on Migration.

Posted by mp in Canada, COVID-19, Immigration detention, Oversight bodies

The Perils of Overthinking Prevention

This past week the Chair of the UN Subcommittee on Prevention of Torture warned us of the danger of overthinking. While such advice might seem somewhat unconventional coming from an internationally respected law academic such as Sir Professor Malcolm Evans, he might just have a point.

Speaking before the UN Third Committee on 15 October 2020 during the 75th session of the UN General Assembly, the UN Subcommittee on Prevention of Torture Chairperson ventured the following in relation to states overthinking the task of putting in place a National Preventive Mechanism:

“What are the real hurdles? … it can be a complex matter, particularly in federal countries … but perhaps surprisingly what I find has been the most difficult barrier is that some states try to overthink what is necessary, making it seem more complicated to establish the mechanism than is in fact the case.”

‘Do not overthink it’, Sir Professor Malcolm Evans informs the UN Third Committee.

“I am not ignorant of the legislative and organizational complexities of doing it, but it is actually not as difficult to put something in place as some seem to think. And so, I think, again drawing on our experience and willingness to engage, not overthinking the complexities, and just seeing it as something that is, if 68 countries around the world have achieved it, the others can.”

Readers can find the link to the full presentation to the UN Third Committee below.

Canada’s commonly cited default-position is that its federal structure makes the implementation of international human rights instrument significantly more difficult, a point not without some resonance. Meanwhile, and somewhat paradoxically, UN treaty bodies frequently haul Canada over the coals for failing to put in place an effective coordination mechanism, or other arrangement, at the domestic level to ensure the compliance of ratified instruments in practice.

Just cast a glance at the recent Concluding Observations of the UNCERD from 2017 (§7-8), UNCEDAW from 2016 (§10-11) and UNCESC from 2016 (§5-8) to see a selection of such comments. UN special procedures have similarly advanced recommendations in this same direction. In short, a standard refrain of the UN system is that Canada has no effective domestic structure to ensure follow-up to key UN treaty body recommendations.

For a resource-blessed country like Canada, there is no plausible defence against this entirely reasonable charge. The country cannot have it both ways, one might argue, namely claiming federalism as a reason for hindering the adherence to international human rights instruments, but then failing to ensure their effective implementation, once ratified, in practice.

Overthinking = indecision 🙂 – Rori D (2014).

Returning to the OPCAT, of the current 90 OPCAT States Parties, 68 States Parties have instituted NPMs. Of the 90 states, 12 are either federal states or are characterized by devolved political power, such as Spain and the United Kingdom for example.

The latter is an exceptional case in point. With four country jurisdictions, the UK’s 21-body hydra NPM structure has recently celebrated 10 years of operation. Equally, Australia, which ratified the OPCAT in 2017, is in the process of putting in place its NPM. Switzerland, a 26-canton structured federal state, succeeded in instituting in practice its Commission nationale de prévention de la torture in 2010, while Austria’s OPCAT mechanism, which sits within the country’s Volksanwaltschaft or Ombudsman, was forged through close civil society engagement and has been operational since 2012.

As a federal state, is OPCAT ratification too great a challenge for Canada? Is Canada in fact overthinking the task ahead? Might the same ring true for Canada’s other federal bedfellows which have not yet ratified the instrument?

Not all federal states have made the OPCAT leap, of course, including Canada, Ethiopia, India, Malaysia, Pakistan, Russia, United Arab Emirates, USA and Venezuela, few of which have stellar human rights track-records.

Indeed, if Canada is overthinking the imagined perils of OPCAT ratification, it is doing so behind tightly shut doors. More likely, Canada has probably not ‘overthought’ the OPCAT for quite some time, so far and quickly this human rights commitment seems to have fallen down the federal government’s list of human rights priorities.

Yet imagine if it had? Just imagine. The possibilities are endless. The Canada OPCAT Project has advanced its vision of a potential NPM, but there are certainly other views.

With a re-energized approach to OPCAT ratification domestically, no doubt the UN Subcommittee Chairperson, Malcolm Evans, and his 24 colleagues would be eagerly waiting in the wings ready to help Canada not to overthink this challenge, at least no more than absolutely necessary.

After all, while there may be dangers associated with overthinking things, there are arguably even greater human rights perils in doing absolutely nothing at all.


Watch the presentation of Sir Professor Malcolm Evans, Chairperson of the UN Subcommittee on Prevention of Torture, to the UN Third Committee on 15 October 2020. The above quoted excerpt can be followed at the 46.35 – 47.55 minute marks.

Read other UN Subcommittee-related articles, including If the UN Subcommittee Ever Came to visit Canada, Does This Sound Vaguely Familiar, and SPT Healthcare Checklist for NPMs.

Learn more about the recent presentation to the UN Third Committee by UN Independent Expert on the Rights of Older Persons.

Posted by mp in Canada, OPCAT, SPT, UN Subcommittee

Older In Years, Worse Off By Far?

‘Older persons remain chronically invisible despite pandemic spotlight’ concluded the UN Independent Expert on the enjoyment of all human rights by older persons in a recent statement.

In marking the International Day of Older Persons on 1 October 2020, the UN Independent Expert Claudia Mahler succinctly captured a lamentable reality far too familiar in far too many countries during the current pandemic, not least Canada:

“Tragically, the COVID-19 pandemic is shining a spotlight on older persons. It has a disproportionate impact on older persons and has magnified existing violations of their rights. Existing inequalities that older persons face in terms of access to health, employment and livelihood are exacerbated. This involuntary focus on older persons should not conceal the fact that they are chronically invisible.”

The full horror of the devastating impact of COVID-19 on Canada’s elderly was all too evident during the first wave of the pandemic, particularly on those seniors living in long term care homes. With a second wave of the pandemic seemingly fast descending upon parts of Canada, collective anxiety for the wellbeing of institutionalized seniors is only amplified.

Graffiti of Old Woman – Cristian Ungureanu (2019).

The increasingly numerous news stories highlighted on this website about outbreaks of COVID-19 in such settings fuel concerns that a tragic replay may be about to unfold in the coming winter months, reminiscent of scenes from earlier in the year. An awful rerun no less, perhaps epitomized at its worst by the thousands of deaths and the images of the Canadian military being drafted into barely-coping care homes in Ontario and Quebec.

Understandably, several class-action lawsuits have since been initiated owing to the apparent failure of such facilities to provide even a modicum of care for residents.


Ineffective oversight

Yet where is the effective independent oversight of such institutionalized settings in Canada?

An article published on this website in May 2020 titled Canada’s Senior Care Home Scandal forcefully advanced the argument for greater independent oversight of such institutions, including through the ratification and implementation of the OPCAT in the country.

Unsurprisingly, the UN Independent Expert on the enjoyment of all human rights by older persons has similarly urged adherence to the OPCAT in a report presented to the 75th session of the UN General Assembly just last week.

In an Annual Report titled Impact of the coronavirus disease (COVID-19) on the enjoyment of all human rights by older persons UN Expert Claudia Mahler explores the many challenges faced by seniors during the COVID-19 pandemic, recounting its bluntest impact in the following terms:

“The pandemic has had very broad effects on older persons: they have been denied health services; they have been physically and socially isolated; and they have been the victims of ageist attitudes. Despite being such a diverse group, older persons have been labelled as vulnerable and branded as burdens to societies. The pandemic has made very evident the urgent need to combat stigma and age discrimination.” (§26)

Within care home settings isolation has sometimes been the most acute, as the UN Independent Expert has observed:

“At the height of the pandemic, when official monitoring in some care homes was interrupted to focus on controlling the spread of the virus, the prohibition of regular visits from friends and family removed a crucial informal monitoring mechanism and provided an entry point for violence, abuse and neglect.” (§50)


People Walk – Titoy (2009).

Justice for seniors

In the said report, the UN Independent Expert passionately argues that the pandemic brings right to the fore the specific justice needs of older persons, such as addressing the rise in violence, maltreatment and abuse both in institutionalized as well as private care contexts, including the home.

One such justice-related measure advocated by the UN Independent Expert is for the establishment of independent bodies or entities for older persons, as follows:

“It is crucial to establish an independent and impartial entity, procedure or
body, possibly within an existing independent body, with the mandate to examine complaints pertaining to older persons. It is also important to apply the jurisdiction of the independent body, such as an ombudsperson, under the Optional Protocol to the Convention against Torture … and to consider its specific application to guarantee safe care for older persons, including in residences for dementia patients. Rather than creating a completely new institutional body, the establishment of an independent national commissioner on the enjoyment of all human rights by older persons within an existing human rights commission or human rights institution to serve as an independent entity for older persons should be considered.”
(§91)

While such bespoke entities for the elderly do exist in certain provinces in Canada, they certainly do not function akin to National Preventive Mechanisms under the OPCAT, clearly mandated to exercise dynamic and energetic independent oversight of an array of closed institutions, including care home facilities.

At the same time, widespread concerns about the efficacy of internal government oversight of care homes has become more pronounced as the pandemic has worsened. The Ontario Ombudsman launched an inquiry into government oversight into long term care homes during the pandemic in June 2020, while Quebec’s Protecteur du citoyen launched its analogue investigation into the crisis in September 2020.

See you at the finish line – Stefan Barna (2016).

In the devastating wake of the pandemic the Royal Society of Canada convened a Working Group on Long Term Care, which published a critical report in July 2020 titled Restoring Trust: COVID-19 and The Future of Long-Term Care. A key finding of the report relates to the need for transparent and arms-length data collection to be used to evaluate the accreditation and regulation of care homes. Furthermore, it was argued that governments must take an evidence-based and balanced approach to mandatory accreditation as well as to the regulation and inspection of such settings.

The Royal Society recommendations may be a few steps short of OPCAT perhaps, but they are, nonetheless, a move in the right direction to ensuring greater scrutiny.


Making a difference?

Yet would the ratification and implementation of the OPCAT have made any significant difference to the tragic outcomes to have beset care homes in Canada? The answer to the question is, admittedly, not back and white.

In July 2020 the Council of Europe’s highly respected detention monitoring body, the European Committee for the Prevention of Torture, issued a follow-up statement concerning the measures taken with regard to persons deprived of their liberty and the pandemic. The statement underscored the potentially highly positive impact of independent oversight in the following terms:

“From the CPT’s perspective, the pandemic also hit the hardest in those places of deprivation of liberty where previous recommendations made by the Committee had not been implemented. This relates to the entire spectrum of the CPT’s mandate: from prisons to social care homes, from psychiatric hospitals to immigration detention centres.”

The statement concluded:

“Finally, the CPT wishes to recall the crucial importance for the prevention of ill-treatment of monitoring of detention places by independent national and international human rights bodies. The findings of such bodies can be of great assistance to member States in assessing the practical impact of their policies upon persons deprived of their liberty. Consequently, the Committee welcomes the fact that, in several countries, National Preventive Mechanisms (NPM) and other national monitoring bodies have resumed visits to places of deprivation of liberty, whilst taking precautions to observe the ‘do no harm’ principle, and it hopes that this positive trend will be followed as soon as possible by other relevant bodies across Europe.”

Many of the shortcomings highlighted by the current pandemic were previously well known. Staggeringly, they had just never been acted upon in any systematic way in practice; nor did there exist in many jurisdictions a rugged independent framework of oversight to push for much-needed change.

While not a panacea for all care homes ills, the OPCAT instrument, if well implemented at the domestic level, could offer Canada a framework anchored in international human rights law to ensure eminently more robust oversight of such contexts, including through liaising with other regulatory bodies.

Quite clearly, the status quo patchwork of internal, often haphazardly performing regulatory bodies with responsibility for care settings is no longer an acceptable or operationally viable option in Canada. The OPCAT might just well offer a way forward.


Read the report of the Independent Expert on the enjoyment of all
human rights by older persons, Impact of the coronavirus disease (COVID-19) on the enjoyment of all human rights by older persons (21 July 2020).

Read the accompanying press release, Older persons remain chronically invisible despite pandemic spotlight, says UN expert.

Learn more about the mandate and mandate-holder of the Independent Expert on the enjoyment of all human rights by older persons.

Read the July 2020 statement of the European Committee for the Prevention of Torture in English and French.

Posted by mp in Canada, COVID-19, OPCAT, Oversight bodies, Senior care homes, UN Special Rapporteur

Pandemics, reparations, technologies, women deprived of liberty and more…

As the UN Human Rights Council lowers the shutters on its 45th session in Geneva, it is hopefully still not too late to spotlight an important report which emerged during the four-week, mostly virtually-held human rights forum.

Amidst the stacks of published papers and reports, the UN Working Group on Arbitrary Detention formally presented its 2020 Annual Report during the session, one which is jam-packed with items of human rights interest, including a focus on modern technologies and detention.

Formally presented to the Council by Working Group Chair Leigh Toomey on 21 September 2020, the latest Annual Report focuses on three thematic areas of interest, namely: (a) women deprived of liberty; (b) the right to legal assistance in preventing arbitrary deprivation of liberty; and (c) modern technologies and alternatives to detention. To say nothing of the report’s focus on two so-called ‘Deliberations’, it should be added.

Prison – Benjamin Horn (2018).

In this latter connection readers of this website will recall a recent feature highlighting the UN Working Group’s excellent Deliberation No. 11 on prevention of arbitrary deprivation of liberty in the context of public health emergencies, the timeliness of which was immaculate for this contemporary COVID-19 dominated age.

Yet the Working Group’s earlier Deliberation No. 10 on reparations for arbitrary deprivation of liberty also deserves a visit. With a focus on five main forms of reparation (restitution, rehabilitation, satisfaction, compensation, and guarantees of non-repetition) Deliberation No. 10 makes a very useful contribution to the existing literature on the subject, albeit from a slightly different angle. Both Deliberations are annexed to the main report.

Returning to the main trunk of the document, its three thematic threads will no doubt be areas of interest for readers, not least the accent on modern technologies. In this latter respect the UN Working Group has remarked:

Over the past few years, the Working Group has observed new opportunities that the use of modern technologies, such as electronic monitoring devices and telephone and Internet reporting, offers to minimize the need for States to resort to traditional modes of deprivation of liberty, depending on the legal regime. In principle, the use of digital technologies in providing alternatives to detention is a positive move. It limits the need for physical confinement of an individual in a closed environment, which usually represents a high cost to society and may lead to extended breaches of the rights of the individual concerned. The Working Group therefore welcomes the use of modern technologies to allow for alternatives to detention. (§57)

In the report the UN expert body calls on the Human Rights Council to seek a thorough study on the use of modern technologies as alternatives to deprivation of liberty with a view to providing guidance to UN Member States. Whether it does so or not, shall remain to be seen.

In relation to women deprived of their liberty, the UN Working Group depicts the following grim reality:

Despite the important progress made in developing global standards that promote the rights of women deprived of their liberty, the arbitrary deprivation of liberty of women continues to be of serious concern across the world. During the reporting period, the Working Group considered the situation of women deprived of their liberty in a variety of contexts, including detention resulting from the lack of access to reproductive health care; the protective custody of women in social care facilities; the de facto detention of women through restrictions imposed by private actors; and the detention of women in facilities not appropriate for the needs of female detainees. (§46)

Tall prison fence – Simon Brass (2007).

The UN Working Group continues:

The common element of all these cases was that the individuals were women and the Working Group found that this was the key reason for their deprivation of liberty. The Working Group shares the view of the Working Group on discrimination against women and girls that women’s deprivation of liberty is a significant concern around the world and severely infringes upon their human rights. As is clear from the above examples, such deprivation of liberty not only takes place in the criminal justice context, but women are also detained in the context of migration, in other administrative detention settings and in healthcare settings. (§48)

In this connection, the UN Working Group’s new report builds on the first-class work of the UN Working Group on Discrimination against Women and Girl’s 2019 thematic report ‘Women deprived of liberty’, as featured on this website.

Briefly put, if you have to date missed the UN Working Group on Arbitrary Detention’s 2020 Annual Report, you could do much worse than take a closer look. Alternatively, you can watch last month’s formal presentation of the report before the UN Human Rights Council below.

Razor-sharp observers of the UN Human Rights Council may also have caught last week’s joint-statement by various UN special procedures, praising Canada on repatriating an orphaned 5-year-old Canadian girl from a detention camp in Syria.

The UN Working Group on Arbitrary Detention signed onto the said statement (along with six other UN special procedures), urging Canada as well as other countries to repatriate their citizens remaining in Syrian detention camps, especially children. The wretched conditions in such camps have been described in the joint-statement as reaching the threshold standard for torture, inhuman and degrading treatment under international law. The latter conclusion prompts the very simple question why is it taking such states so inordinately long to do so?


Learn more about the UN Working Group on Arbitrary Detention.

Read its recently published Annual Report 2020.

Watch the Human Rights Council’s Interactive Dialogue with the UN Working Group on Arbitrary Detention from 21 September 2020.

Read the UN special procedure joint statement UN experts welcome return to Canada of five-year-old orphaned in Syria (7 October 2020).

***As a final point of information, the UN WGAD wrote to Canada in April 2018 (see §72), requesting that it be permitted to undertake a fact-finding visit to the country (following such a visit in June 2005). No permission has, to date, been forthcoming, we understand. Given that no end of UN special procedures have visited Canada in past years, such apparent reluctance remains disappointing.

Posted by mp in Arbitrary detention, Canada, COVID-19, Women prisoners, Working Group on Arbitrary Detention