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, 0 comments

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, 0 comments

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

Indigenous Prisoners at Risk during the COVID-19 Pandemic

“Indigenous peoples are commonly overrepresented in prison and other places of detention, placing them at greater risk where States do not fulfil their responsibilities to maintain physical distancing or other control measures” is a key finding of the newly released report of leading United Nations Indigenous rights expert, Francisco Cali-Tzay.

In a virtual presentation to the UN Human Rights Council in Geneva on 24-25 September 2020 the UN Special Rapporteur on the Rights of Indigenous Peoples made repeated reference to the leading-edge report, whose title reflects a major concern of our current troubling times: Report on the Impact of COVID-19 on the Rights of Indigenous Peoples.

Session of the UN Human Rights Council – United Nations Photo (2011).

If Indigenous Peoples in Canada and elsewhere frequently find themselves in the most difficult of straits at the best of times, then it is no wonder that their struggle is even greater in these wearying in the extreme COVID-19 conditions, including Indigenous prisoners in closed institutions.

The UN Special Rapporteur’s report, which will be formally presented to the UN General Assembly in October 2020, underscores this reality in multiple dimensions of life, not least in relation to Indigenous prisoners:

“Indigenous peoples are commonly overrepresented in prison and other places of detention, placing them at greater risk where States do not fulfil their responsibilities to maintain physical distancing or other control measures. Transparent protocols and culturally adapted protection measures are required, and take on particular importance in places where indigenous peoples comprise a majority or significant portion of inmates. Indigenous peoples also make up a large proportion of migrants and reports indicate that, in some receiving countries, indigenous peoples have been disproportionately exposed to the virus while in administrative detention.” (§30)

45th Session of the Human Rights Council – UN Geneva/Marc Ferré (2020).

“In all situations of deprivation of liberty, States should consider release and alternatives to detention to mitigate the risk of harm within places of detention, including for persons who have committed minor, petty and non-violent offences, those with imminent release dates, those in immigration detention, those detained because of their migration status, people with underlying health conditions and those in pretrial or administrative detention.” (§31)

In Canada this same debate has simmered throughout the COVID-19 pandemic vis-à-vis both Indigenous prisoners and non-Indigenous prisoners alike. Recent papers by Royal Society of Canada experts Rosemary Ricciardelli and Sandra Bucerius as well as Heather Lawson of the Canadian Centre for Policy Alternatives have advanced these concerns better than anyone.

What is more, regulars to the Canada OPCAT Project website will recall that earlier this year Canada’s Correctional Investigator referred to the ‘Indigenization’ of Canada’s federal prison population as a ‘national travesty’. To this very point, Indigenous women now make up 42% of the federal prison population, while comprising just 4% of the national population, an extremely shocking truth.

This past week’s UN Human Rights Council Interactive Dialogue with the UN Special Rapporteur, Francisco Cali-Tzay, shone a torch on the very negative impact of the on-going COVID-19 pandemic across an array of facets of everyday life, including healthcare provision, food security, employment and education.

The UN Special Rapporteur’s new report is due to be formally presented to the UN General Assembly on 12 October 2020. For the time-poor reader, its accompanying bumf describes its overall thrust as follows:

“The Special Rapporteur is concerned that COVID-19 has both highlighted and exacerbated current and ongoing human rights situations faced by many indigenous peoples. This report brings  critical concerns to the attention of the General Assembly and the Human Rights Council for their consideration and action. Indigenous peoples are over-represented among the poor and suffer higher rates of malnutrition, combined with impacts of environmental contamination and in many cases, lack of access to adequate health care services as a consequence, many have reduced immune systems, respiratory conditions and other health conditions, rendering then particularly vulnerable to the spread of disease.

Curfews, lockdowns, quarantine and other imposed isolation measures imposed as a response to the pandemic may cause additional hardships for access to basic economic, cultural and social rights. Increased State security measures imposed during emergency situations as this may also directly impact indigenous communities.

Exceptional times should not exacerbate or justify impunity for violations of indigenous peoples’ rights. Human cultural diversity is a source of innovation for surviving crises such as pandemics; national and international responses to COVID-19 can benefit from indigenous traditional knowledge and practices.

The report presents examples of good practices, of indigenous participation and consultation in implementing solutions and responses to the COVID-19 pandemic that promotes the vision and approaches of indigenous peoples.”

Readers may wish to directly consult the statement or watch the Interactive Dialogue with the UN Special Rapporteur from 24 and 25 September by clicking on the respective links. A list of the very significant number of organizations which contributed to the report’s call for submissions, including several notable Canadian actors, is also available (please scroll down the page).

As the COVID-19 pandemic is showing few signs of quietly abating, and is writ spectacularly large in North America in particular, it can only be hoped that states in the region dive deep into the Special Rapporteur’s new report and draw on its many examples of good practice, including – more to the point – in relation to closed detention settings. After all, this may not be the worst of it.


Read the UN Special Rapporteur on the Rights of Indigenous Peoples’ Report on the impact of COVID-19 on the rights of indigenous peoples and related background information.

Consult the Statement of Francisco Cali-Tzay, Special Rapporteur on the Rights of Indigenous Peoples at the Human Rights Council’s 45th Session.

Find out more about the mandate of the UN Special Rapporteur in English and French.

Read what Canada’s Correctional Investigator had to say about the ‘Indigenization’ of Canada’s federal prison population as well as Andreea Lachsz’s research report’s illuminating insights into the ‘Indigenization’ of detention in her native Australia.

Posted by mp in COVID-19, Human Rights Council, Indigenous people, UN Special Rapporteur

Human Rights In Context Canadian OPCAT Focus

The Canada OPCAT Project is delighted to make its first podcast appearance ever this week in the the latest edition of Human Rights in Context, an exciting new human rights podcast series. You can listen to Torture Prevention and the OPCAT in Canada podcast here.

Launched in July 2020 by Matt Sands, Human Rights in Context is a new podcast series looking at international human rights in countries around the world. Although a relatively new podcast, it has been many months in planning.

The podcast series explores the relevance of international human rights in everyday life. It explores how human rights treaties and standards, or activity at the UN, actually has an impact on how people enjoy basic freedoms. The series examines some of the most important human rights issues with experts from around the world who will provide inspiration and confidence for people who are (or hope to be) working in this area. You can watch a trailer to the series here.

Past episodes of the podcast have looked at a diversity of modern-day human rights issues through the ideas of long-time activists. As readers can see below, whether it has been supporting Human Rights Defenders, a focus on COVID-19 and the precarious situation of older people, modern slavery in Haiti, the prevention of wide-scale torture in Brazil or the egregious treatment of asylum-seekers and refugees in Italy, Human Rights in Context has offered a very welcome and much-needed platform for an array of human rights voices.

The Canada OPCAT Project is very grateful to Matt Sands for his kind invitation to be part of the podcast series and to have the opportunity to illuminate a pressing, real-life human rights issue in the context of Canada.


Listen to Torture Prevention and the OPCAT in Canada podcast here.

Visit the HRIC website.

Listen to past episodes.

Find out more about its host and founder, Matt Sands.

Follow Human Rights in Context on Twitter.

Posted by mp in Canada, OPCAT

‘Canada drags its feet on international convention against torture’

In a rare Canadian in-depth news article on the OPCAT, journalist Lital Khaikin throws a critical spotlight on Canada’s continued failure to ratify the instrument. Launched in Canadian Dimension on 18 September 2020 as the first in a three-part OPCAT article series, Lital Khaikin questions why Canada has singularly failed to move ahead with the OPCAT torture-prevention instrument, despite repeated global pledges and statements to do so.

This failure is all the more worrying at a time when the COVID-19 pandemic has hit down hard on multiple closed institutional settings in the country, especially long-term care homes for the elderly.

The overall investigative thrust of three-part series is described by the author in the following terms:

This is the first article in a three-part series on Canada’s historical reluctance to ratify the United Nations’ Optional Protocol with the Convention against Torture (OPCAT). Despite being one of the early champions of this international law that exists to prevent torture in civilian and military detention centres, Canada has still not officially adopted the agreement. The first article examines the lack of transparency and bureaucratic reticence toward OPCAT. The second part examines the circumstances in Canadian detention centres—and other care and medical environments—that urgently call for this greater accountability. The third part examines precedents in Canadian military use of torture alongside Canada’s spotty human rights track record.

The Canadian Dimension series’ broader focus on detention and the need for greater transparency arrives at a crucial time, regrettably more so as the OPCAT project seems to have hit the buffers in Canada. Otherwise put, the repeated international calls for Canada to move ahead with the ratification of the instrument have seemingly fallen on deaf ears.

Solitary -DieselDemon (2010).

In this first article for Canadian Dimension Lital Khaikin interviews leading Canadian human rights advocates, including the current Correctional Investigator, Dr. Ivan Zinger, who has long urged Canada to sign and ratify the instrument. Ezat Mossallanejad, Settlement Counsellor and Policy Analyst at the Toronto-based Canadian Centre for Victims of Torture, also weighs into this long overdue discussion, offering several unique and invaluable historical insights.

The Canada OPCAT Project even raises its ugly head at the end of the article with a deliberately pointed comment about the lack of overall transparency, openness and inclusiveness of the national discussion process on OPCAT ratification.

Paradoxically, while Canada’s fourth estate frequently advances scathing commentaries on the on-going elderly care home scandal, under-age migrants held in detention, the shoddy material condition of parts of Canada’s prison estate, the widespread overuse of solitary confinement in detention, and the shocking ‘Indigenization’ of the overall prison population, to name just a few contemporary media concerns, very rarely do Canadian journalists ever join the dots up and make the linkage with the country’s overall weak national patchwork of independent oversight of detention. Journalist Lital Khaikin attempts to do just that in this new series of articles.

In a nutshell, for regulars, and even irregulars to the Canada OPCAT Project website, this article is a must read.


Read ‘Canada drags its feet on international convention against torture’ by Lital Khaikin, published in Canadian Dimension on 18 September 2020.

Read Lital Khaikin’s numerous previous Canadian Dimension articles.

Find out more about Canadian Dimension and consider making a donation to the news forum.

Posted by mp in Canada, COVID-19, OPCAT

OPCAT Hits The Canadian Buffers?

With not even an admission of regret, let alone an apology, did Global Affairs Canada’s response to the Canada OPCAT Project’s Access to Information and Privacy (ATIP) Request drop onto the doormat – some six months late. What is more, the information contained therein strongly suggests that Canada’s repeatedly stated intention to move ahead with the OPCAT may have finally hit the buffers.

Alternatively, and arguably worse still, might the Canadian authorities be quietly moving forward without consulting with Canadian civil society? To think, as recently as 2016, Canada’s then Foreign Minister stated that the OPCAT would no longer be optional for Canada.

Camera Surveillance Prison – Jobs For Felons Hub (2016).

To quickly recap, an ATIP Request was submitted to Global Affairs Canada (the lead federal agency on OPCAT ratification) on 23 December 2019 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.

More precisely, in the December 2019 ATIP Request to Global Affairs Canada, the Canada OPCAT Project asked for the following information.

“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.

Please see paragraph 21(d) of the Concluding observations on the seventh periodic report of Canada (UN Doc. CAT/C/CAN/CO/7), dated 21 December 2018.

In view of this key United Nations recommendation, please provide copies of any written communications such as letters and emails with Canadian civil society organizations and National Indigenous Organizations on the question of accession by Canada to the Optional Protocol to the UN Convention against Torture since 1 December 2018 to the 21 December 2019″

Please also provide copies of any backgrounders, briefing notes, presentations or other relevant documents for discussion with Canadian civil society organizations and National Indigenous Organizations on the question of Canada acceding to the Optional Protocol to the UN Convention against Torture.

In late January 2020 Global Affairs Canada responded, stating that it required an additional 45-days to process the request, which, according to the relevant legislation, was due no later than 7 March 2020. In a word, the agency had 75 days to process the request and a deadline which fell before the COVID-19 shutdown.

Tall Prison Fence – Simon Brass (2007).

In a letter dated 24 August 2020 the Canada OPCAT Project finally received a response to its original ATIP Request, nearly six months overdue. Was the long wait worth it? Sadly not so.

In the period 1 December 2018 to 21 December 2019 the extent to which Canada acted on the UN Committee’s recommendation to ensure the participation of civil society, Indigenous groups and other stakeholders in the entire OPCAT accession process comprised just two meetings with civil society.

And you may wonder why we wonder whether the OPCAT has finally hit the OPCAT buffers in Canada? In view of the apparent lack of progress, it is highly possible that the OPCAT train never left the platform, let alone hit those proverbial buffers.

Two sets of email communications are enclosed in the nine-page ATIP response, six pages of which relate to Canada OPCAT Project exchanges with Global Affairs Canada. The remaining three pages relate to an exchange with Amnesty International Canada. The totality of the disclosed civil society OPCAT consultation process from 1 December 2018 to 21 December 2019 comprised the following:

  • A meeting between representatives of Global Affairs Canada and the Canada OPCAT Project on 13 December 2018;
  • Acknowledgement of receipt of a Canada OPCAT Project discussion paper on possible OPCAT implementation on 12 February 2019;
  • A meeting between representatives of Global Affairs Canada/Justice Canada and Amnesty International Canada on 10 July 2019.

That, dear readers, was the sum total of Canada’s OPCAT consultation process with civil society during the period in question.

Yet arguably worse still, what if discussions on the implementation of the OPCAT are moving ahead within government, but without the participation of Canadian civil society and Indigenous organizations? Buffers or no OPCAT buffers, it may be high time for another ATIP Request to determine if this is the case.

All of which time and effort could be entirely avoided, of course, if Global Affairs Canada, or another agency, willingly placed information into the public domain concerning Canada’s repeatedly declared intention to consider ratifying the OPCAT. Other countries routinely do so, why not here?


Read more about the Canada OPCAT Project’s ATIP Request from December 2019 and the initial response from Global Affairs Canada from January 2020.

Read A Silence Not Golden – the ATIP Request Update from 16 March 2020.

Posted by mp in Canada, OPCAT

Filling In The Canadian OPCAT Blanks

“It will never work”, they said. “There are just too many of them. Never in a million years.

More than just a few detractors muttered: “Eighteen different detention monitoring bodies spread throughout four country jurisdictions. What on earth were they thinking of?!”

Surely, someone in the United Kingdom’s Ministry of Justice was having a proverbial ‘laugh’, it was suggested, when it issued its written ministerial statement to Parliament in early 2009, announcing the formal launch and composition of the then UK’s 18-body NPM? Come on – really?!

As someone who attended the official launch event of the UK NPM at the Ministry of Justice in the heart of Westminster, London in 2009, a certain question mark certainly hovered over the feasibility of the complicated structure of the multi-body mechanism.

Recklessness then further abounded. Several years later, in 2013, the UK National Preventive Mechanism was expanded to a colossal 21 individual bodies. The sheer madness of it?

Or perhaps not.

More than 10-years into its existence, the UK’s multi hydra-structured NPM seems to be functioning reasonably well, if not better, despite its many heads. Moreover, several of its constituent bodies are very often referenced as mechanisms of best detention monitoring/OPCAT practice.

Interested readers can find detailed information about each of the 21 statutory bodies that make up the UK NPM on its website

Moreover, as a whole the entity remains more than self-aware that operational improvements are still there to be made. These include the pressing need to ensure the formal anchoring of the mechanism in law and to secure adequate financing of its Secretariat.

With good reason, the UK NPM has every right to be more than quietly pleased with its first decade of operation, despite some initial naysaying. The report of the UN Subcommittee on Prevention of Torture, following its September 2019 visit to the UK, once published, will no doubt also be closely scrutinized by the mechanism as a potential benchmark for improvement.


From a Canadian perspective, the following, excellent UK NPM infographics are especially interesting. The first depicts which elements of the overall UK NPM have responsibility for monitoring the different types of places of detention in England, Wales, Scotland, and Northern Ireland. While the Canadian reader might not necessarily be familiar with the listed acronyms, they will still be able to determine that a diversity of monitoring entities are in operation in relation to the different detention settings in the four countries.

If one were to devise a similar infographic for Canada, how would it look? How would we fill in the blanks under the different detention settings? Keeping in mind that a complaints-handling ombuds-type body is not the same thing as a proactive, preventive monitoring mechanism and that any entities would need to fully comply with the minimum standards envisaged for an NPM in the OPCAT text, which existing oversight bodies would populate the said Canadian infographic?

If you can, fill in those blanks for yourself. This writer believes that at present there would be more than just a few blanks or gaps in any such analogue Canadian infographic.

The second infographic helpfully breaks down the NPM’s overall composition by country jurisdiction. Mercifully, those troublesome acronyms have been lanced. If we were to do the same for Canada’s 14 jurisdictions, using the OPCAT text criteria for NPMs, how would it appear? Once again, please fill in those blanks.

Would there be jurisdictions without any corresponding OPCAT compliant mechanism at all? Most probably.

In a paper published on this website in 2019, originally submitted as an LL.M dissertation, we tried to do just that. The conclusion reached in the paper was that, if the myriad of existing federal, provincial and territorial ombudsperson offices and human rights commissions were to be designated as the country’s future NPM, many would need to be significantly re-purposed in terms of their mandates, structures, composition and operation. Even then, there would still exist certain types of places of detention in Canada without any NPM coverage, unless new bodies were created.

You may not agree with this conclusion, but a quick scan of the paper would help you determine whether the aforementioned infographic blanks can be easily filled in or not, given the current institutional human rights landscape of Canada.


Even though at present the commitment of the current Canadian administration to ratify the OPCAT appears to have been quietly and conveniently forgotten, if in 10 years’ time we can boast our own eye-catching NPM infographics, then there will be cause for human rights celebration.

Until genuine political interest is reignited in the OPCAT project, Canadian human rights actors will have to look to NPMs in other countries, like the United Kingdom, for further OPCAT inspiration. And to think that commentators once questioned the brazen unorthodoxy of the UK approach to OPCAT implementation?

Originality, it would seem, is not to be underestimated at all.


Find out more about the UK NPM.

Read Ten Years of the UK National Preventive Mechanism: Working together to prevent torture and ill-treatment in detention (2020).

Read the Canada OPCAT Project paper, Instituting an NPM in Canada: Lessons from Global OPCAT Implementation (2019).

Posted by mp in Canada, NPMs, OPCAT, United Kingdom

Webinar ‘COVID-19 and North American Corrections: Lessons for Australia’

If you missed this now past webinar, you can watch it on demand here.

The related PowerPoint presentations can also be accessed here.

***

Depending upon exactly where you are in the world, set to take place on either 7th or 8th September, this is a webinar you will not want to miss out on! Incurable Australian OPCAT enthusiast Steven Caruana has pulled together yet another first-class panel of speakers, this time to reflect on the critical question of whether there are any key lessons for Australia from how the USA and Canada have responded to the current COVID-19 pandemic in prisons.

The spotlight will first fall on Canada, whose prisons – so far at least – have appeared to have escaped the very worst ravages of the current pandemic. This timely discussion will be led by the current Canadian Correctional Investigator, Ivan Zinger, followed by Ontario Independent Advisor on Corrections, Howard Sapers, and leading Public Health and Preventive Medicine Physician, Fiona Kouyoumdjian.

In stark contrast, as has been widely documented, many prison institutions south of the 49th parallel find themselves in truly dire straits. The current state of affairs in the USA will be explored by leading medical experts, Homer Venters and Brie Williams, and penal reform activist Adnan Khan. Please click on the biographies of the different speakers to find out more about the webinar presenters.

As the webinar host, Thalia Anthony, a penal reform activist and law professor at the University of Technology in Sydney, will pull the discussion tightly together and coax out the most relevant COVID-19-related lessons for prison institutions in Australia.

During these different presentations webinar viewers will learn at first hand about the respective COVID-19 prison situations in Australia, Canada and USA, whether restrictive locked-down regimes have succeeded in protecting prisoners and staff alike, and whether prison decarceration has been an effective solution in countering the worsening pandemic.

You can watch the webinar on Zoom by requesting an invitation from Steven Caruana: steven_caruana1@hotmail.com. Please send requests early, as participation is limited to 400 persons and the seats are sure to fill up quickly!

Viewers in Ottawa/New York can watch the webinar at 7 pm on Monday 7th September 2020.

Viewers in Australia should tune into the webinar at 9 am on Tuesday 8th September (Australian Eastern Standard Time).


In the meantime, why not spend the next week exploring several of the other exciting seminars in the current series? Take a look below:

  • Human Rights and Detention in the time of COVID-19watch here;
  • The Relationship Between Civil Society and the National Preventive Mechanismwatch here;
  • Culturally Appropriate Oversight of Detained Aboriginal & Torres Strait Islander People in the Northern Territorywatch here;
  • Implementing OPCAT in Australiawatch here.

Many thanks to Steven Caruana for all of the above information and links.

Posted by mp in COVID-19, Prisons

Reeling In The Years – The Revised European Prison Rules

You distinctly know you are getting on in years when you look around you and notice that the European Prison Rules have been revised – once again.

Working for a Geneva-based NGO at the time, this writer was involved in the drafting of a short submission during the last revision process of the European Prison Rules circa 2005. A quick blink of an eye later and we find ourselves a whole decade-and-half further down the train tracks of life.

All of which is a very convoluted way of saying that this timely and thorough update of the European Prison Rules is unquestionably a very welcome development.

After all, it took the UN over 60 years to revise (from 2010 – 2015) what are now known as the Nelson Mandela Rules, towards the end of which the 1955 Standard Minimum Rules for the Treatment of Prisoners were clearly showing their age. Thus, the many positives of our regional human rights systems resonate again, more so in Europe perhaps.

Guard Tower – Thomas (2017).

The updated European Prison Rules were announced to the world on 1 July 2020 in a press release titled Revised European Prison Rules: new guidance to prison services on humane treatment of inmates, which stated:

“The Committee of Ministers of the Council of Europe has adopted a Recommendation which updates the 2006 European Prison Rules. The rules, which contain the key legal standards and principles related to prison management, staff and treatment of detainees and are a global reference in this field, guide the 47 Council of Europe member states in their legislation, policies and practices.

The revision concerns the rules on the record keeping of information about inmates and the management of their files, the treatment of women prisoners, foreign nationals, as well as the use of special high security or safety measures such as the separation of prisoners from other inmates, solitary confinement, instruments of restraint, the need to ensure adequate levels in prison staff, inspection and independent monitoring.”

As noted above, for instance, the updated version of the Rules now regulate in considerably greater detail the use of solitary confinement. Canada, please take note.

By dint of this revision, on the issue of solitary confinement the 2006 European Prison Rules have been elaborated from one lonely line, as follows:

60.5 Solitary confinement shall be imposed as a punishment only in exceptional cases and for a specified period of time, which shall be as short as possible.

Solitary – DieselDemon (2010).

… to a veritable parable in the 2020 version of the Rules, as follows:

60.6. a Solitary confinement, that is the confinement of a prisoner for more than 22 hours a day without meaningful human contact, shall never be imposed on children, pregnant women, breastfeeding mothers or parents with infants in prison.

60.6. b The decision on solitary confinement shall take into account the current state of health of the prisoner concerned. Solitary confinement shall not be imposed on prisoners with mental or physical disabilities when their condition would be exacerbated by it. Where solitary confinement has been imposed, its execution shall be terminated or suspended if the prisoner’s mental or physical condition has deteriorated. 

60.6. c Solitary confinement shall not be imposed as a disciplinary punishment, other than in exceptional cases and then for a specified period, which shall be as short as possible and shall never amount to torture or inhuman or degrading treatment or punishment.

60.6. d The maximum period for which solitary confinement may be imposed shall be set in national law. 

60.6. e Where a punishment of solitary confinement is imposed for a new disciplinary offence on a prisoner who has already spent the maximum period in solitary confinement, such a punishment shall not be implemented without first allowing the prisoner to recover from the adverse effects of the previous period of solitary confinement.

60.6. f Prisoners who are in solitary confinement shall be visited daily, including by the director of the prison or by a member of staff acting on behalf of the director of the prison.

Similarly, on the question of independent oversight of places of detention the 2006 European Prison Rules have been transformed from the following two, somewhat pedestrian lines:

93.1 The conditions of detention and the treatment of prisoners shall be monitored by an independent body or bodies whose findings shall be made public.

93.2 Such independent monitoring body or bodies shall be encouraged to cooperate with those international agencies that are legally entitled to visit prisons.

Night Lighthouse – Mark Vegas (2007).

… to the following distinctly more descriptive and regulated version in the 2020 revised Rules:

93.1 To ensure that the conditions of detention and the treatment of prisoners meet the requirements of national and international law and the provisions of these rules, and that the rights and dignity of prisoners are upheld at all times, prisons shall be monitored by a designated independent body or bodies, whose findings shall be made public.

93.2 Such independent monitoring bodies shall be guaranteed:

a. access to all prisons and parts of prisons, and to prison records, including those relating to requests and complaints, and information on conditions of detention and prisoner treatment, that they require to carry out their monitoring activities;

b. the choice of which prisons to visit, including by making unannounced visits at their own initiative, and which prisoners to interview; and

c. the freedom to conduct private and fully confidential interviews with prisoners and prison staff.

93.3 No prisoner, member of the prison staff or any other person, shall be subject to any sanction for providing information to an independent monitoring body.

93.4 Independent monitoring bodies shall be encouraged to co-operate with those international agencies that are legally entitled to visit prisons.

93.5 Independent monitoring bodies shall have the authority to make recommendations to the prison administration and other competent bodies.

93.6 The national authorities or prison administration shall inform these bodies, within a reasonable time, on the action being taken in respect of such recommendations.

93.7 Monitoring reports and the responses thereto shall be made public.

Strasbourg’s finest legal draftsmen and draftswomen have clearly been doing their homework: OPCAT Articles 19 to 23 anyone?

Which is a timely reminder that Global Affairs Canada have yet to respond to the Canada OPCAT Project’s Access to Information & Privacy Request from December 2019 on OPCAT consultation with civil society, despite the passing of more than six months.

If some Canadian readers may be scratching their collective heads wondering what on earth a Council of Europe soft-law instrument has to do with Canada then the Canada OPCAT Project brings this breaking development to you as yet another international best practice example of how deprivation of liberty might be better managed – whether it be solitary confinement, independent monitoring or any number of other important issues – in Canada, or anywhere for that matter.

International human rights standards are set in order to bring us all up, not down, even though they do not necessarily make you feel any younger.


Read the 2020 updated European Prison Rules in English and French.

Read the press release Revised European Prison Rules: new guidance to prison services on humane treatment of inmates or Règles pénitentiaires européennes révisées : nouvelles orientations destinées aux services pénitentiaires sur la prise en charge humaine des détenus.

Find out more about the Nelson Mandela Rules and see UNODC’s information placards.

Posted by mp in Independent detention monitors, OPCAT, Oversight bodies, Prisons, Solitary confinement