Scant Information Revealed About Canadian OPCAT Process

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

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

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

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

ATIP request            ATIP request

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

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

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

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

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

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

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

Posted by mp in OPCAT, Ratification, 0 comments

Please Follow Us: The Canada OPCAT Project Now On Twitter

Regular readers of the Canada OPCAT Project may be pleased to know that you can now follow us on Twitter. Follow us and you will receive all new posts directly in your Twitter account. We look forward to meeting you again soon!

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Academic News & Views: NPM Independence and Effectiveness

In a recently published article for the Howard League for Penal Reform Marie Steinbrecher skilfully dissects the issue of NPM independence and effectiveness in practice. PhD candidate Marie Steinbrecher throws a welcome spotlight on this delicate question in an October 2018 Early Career Academics Network journal article titled ‘Challenges around preventing torture’, drawing on examples from the context of the United Kingdom.

For readers perhaps less familiar with the basic functions of an NPM, the author also offers a useful primer on this broader issue, before examining the matter of NPM independence and effectiveness in greater detail. In doing so, among other engaging issues, Marie Steinbrecher focuses on the somewhat contentious practice encountered in the United Kingdom of seconding personnel from law enforcement agencies to different oversight bodies. In this instance Steinbrecher cites the example of the Independent Office for Police Conduct, formerly known as the Independent Police Complaints Commission (which is not part of the UK NPM), highlighting the potential trade-off between effectiveness and perceived independence.

Howard League for Penal Reform

In the recent past, the UN Committee against Torture has been critical of the UK Government due to the practice among parts of its 21-body NPM of employing staff through secondment from different government agencies.[1] The UK Government has since rejected the view that NPM independence is compromised in this manner.[2] The Swiss NPM, the National Commission for the Prevention of Torture, has similarly included past and present members whose independence has been questionable, including serving police officers and prosecutors.

In her interesting article Marie Steinbrecher concludes that:

… there is no clear formula relating to the balance between NPM independence and proximity to the government. It would appear that absolute independence is impossible to achieve for NPMs. Simultaneously, being overly close to the government carries many risks and disadvantages to be the preferred approach. This conflict is a challenging one and not easy to mitigate, especially given the general challenges that NPMs face whilst sitting between the government and NGOs whilst belonging to neither. Future research is required to explore how different NPMs deal with and try to overcome this dilemma.

This same conclusion will no doubt have bearing on the Canadian context. When the day finally arrives for Canada to ratify the OPCAT, it will be obliged to institute an NPM either by designating one or more existing bodies or creating an entirely new structure(s) from scratch.

No matter which route Canada takes, it will have to ensure that the resulting NPM mirrors all the attributes outlined in key OPCAT Articles 17-23 and 35 (as helpfully outlined in the above article), is sufficiently independent of the Canadian detaining authorities and, crucially, is seen to be so in practice. Past experiences with certain provincial police complaints bodies have revealed that perceptions of independence matter a great deal in the Canadian context. For the here-and-now, however, Marie Steinbrecher’s article gives us good cause for reflection.

***

See: Steinbrecher M, ‘Challenges around preventing torture’ (October 2018) 38 Howard League for Penal Reform Early Career Academics Network Bulletin 27.

Interested persons are kindly invited to download the above article.

[1] Committee against Torture, Concluding observations on the fifth periodic report of the United Kingdom of Great Britain and Northern Ireland, adopted by the Committee at its fiftieth session (6-31 May 2013) (UN Doc. CAT/C/UK/CO/5, 24 June 2013) §14.

[2]. Committee against Torture, Sixth periodic report submitted by the United Kingdom of Great Britain and Northern Ireland under article 19 of the Convention pursuant to the optional reporting procedure, due in 2017 (UN Doc. CAT/C/GBR/6, 29 January 2018) §20.

Posted by mp in Independent detention monitors, NPMs, 0 comments

COPCAT Shorts: The Right to Life in Detention

States parties also have a heightened duty of care to take any necessary measures to protect the lives of individuals deprived of their liberty by the State, since by arresting, detaining, imprisoning or otherwise depriving individuals of their liberty, States parties assume the responsibility to care for their life and bodily integrity, and they may not rely on lack of financial resources or other logistical problems to reduce this responsibility. The same heightened duty of care attaches to individuals held in private incarceration facilities operating pursuant to an authorization by the State. The duty to protect the life of all detained individuals includes providing them with the necessary medical care and appropriately regular monitoring of their health, shielding them from inter-prisoner violence, preventing suicides and providing reasonable accommodation for persons with disabilities. A heightened duty to protect the right to life also applies to individuals quartered in liberty-restricting State-run facilities, such as mental health facilities, military camps, refugee camps and camps for internally displaced persons, juvenile institutions and orphanages.

Excerpt from the UN Human Rights Committee’s General Comment No. 36 (2018) on ICCPR Article 6 on the right to life, published 1 November 2018 (paragraph 25).

UN Geneva

UN Geneva by Jean-Marc Ferré.

Read OHCHR’s press release on the publication of General Comment No. 36 in English.

Download General Comment no. 36 in English.

Read the outcome of Canada’s examination by the Human Rights Committee in 2015 in English and French.

Posted by mp in Places of detention, UN Human Rights Committee, 0 comments

Making Immigration Detention Less Harmful

The Geneva-based Global Detention Project has issued a cutting-edge report on how to make immigration detention less harmful. The report titled Harm Reduction in Immigration Detention outlines key measures which states can implement to lessen the harmful impact of immigration detention on detainees.

The Global Detention Project report systematically compares conditions and operations at detention centres in five European countries to identify practices that may be used to develop harm reducing strategies in detention. The report, which was commissioned by the Norwegian Red Cross, is part of its initiative to promote reform of Norway’s detention practices. In doing so, it addresses the following key questions:

  • In what ways has the Norwegian system met or exceeded internationally recognized standards?
  • In what ways has it fallen short, especially when compared to detention practices of peer countries?
  • And what are the key reform priorities going forward that may help reduce the harmful impact of detention?

Immigration DetentionThe document highlights several key areas for promoting reforms across the facilities studied, including: placing immigration detainees in the custody of social welfare institutions rather than public security agencies; reforming operating rules on everything from food preparation to electronic communications; and shedding detention centres of carceral elements.

The Global Detention Project publication may also have direct relevance to the Canadian context. As is generally known, Canada’s dedicated immigration holding regime is relatively small, comprising just three facilities. However, the country’s provincial prison estates are also used for the dispersal and detention of immigration detainees.

According to the Canada Border Services Agency, in the fiscal year 2017-2018 some 8,355 persons were detained for a total of nearly 120,000 detention days in Canada. Of this number, 6,609 persons were held in one of the country’s three Immigration Holding Centres, while the remainder were detained in provincial and other facilities. At present oversight of immigration detention in Canada is exercised by the Canadian Red Cross through an agreement with the Federal Government.

Unlike in other detention spheres, in practice no arms-length government body currently exercises oversight over immigration detention in Canada. The absence of any such body with a preventive mandate will be a significant monitoring gap to fill if and when Canada ratifies the OPCAT.

Nonetheless, for the moment the Global Detention Project report merits a close look and may contain some very important lessons for the Canadian context.

Readers may also wish to take note of the ICRC’s key guidance from 2016 on the use of immigration detention by states. This policy document stresses various key point, including that detention should be an exceptional measure and alternatives to detention should always be considered first. The full policy document can be downloaded in English and French.

Posted by mp in Monitoring tools, OPCAT, Places of detention, 0 comments

COPCAT en bref: Enquêteur correctionnel canadien intervient en faveur de l’OPCAT

… le Bureau exhorte depuis un certain nombre d’années le Canada à signer et à ratifier le Protocole facultatif se rapportant à la Convention contre la torture (PF-CCT) ... Je crois comprendre que des consultations ont eu lieu avec les provinces et les territoires au sujet de l’adhésion possible du Canada au Protocole. Bien qu’il ne fasse aucun doute que la mise en œuvre du Protocole nécessiterait des modifications législatives et des changements aux mandats des organes en place de la part de tous les ordres de gouvernement, je suis d’avis que les travaux juridiques et politiques nécessaires ne devraient pas retarder la signature du traité par le Canada … La signature du Protocole enverrait le bon message et tiendrait le processus consultatif fédéral-provincial-territorial à un calendrier défini vers l’adhésion du Canada et une éventuelle ratification. D’autres États fédérés, ayant des questions de compétence tout aussi complexes, ont ratifié le Protocole, dont l’Argentine, l’Allemagne et, plus récemment, l’Australie. La complexité n’est pas une excuse pour les retards ou pour ne pas faire ce qu’il convient.

Dr Ivan Zinger, Enquêteur correctionnel, Rapport annuel 2017-2018Correctional Investigator Dr Ivan Zinger

Lire le Rapport annuel 2017-2018 en français ci-dessous ou en anglais ici:

L'enqueteur correctionnel

Posted by mp in OPCAT, Ratification, 0 comments

COPCAT Shorts: Canadian Correctional Investigator Speaks Out For OPCAT

… for a number of years this Office has urged Canada to sign and ratify the Optional Protocol to the Convention against Torture (OP-CAT) … I understand that consultations have occurred with the provinces and territories concerning potential Canadian accession to the OP-CAT. While there is no doubt that implementing OP-CAT would require each level of government to make legislative amendments as well as changes to the mandates of existing bodies, I am of the view that the necessary legal and policy work should not delay Canada signing onto the treaty … Signing would send the right message and would keep the federal/provincial/territorial consultative process on a defined timetable toward Canadian accession and eventual ratification. Other federated states, with equally complex jurisdictional issues, have ratified OP-CAT, including Argentina, Germany, and, most recently, Australia. Complexity is not an excuse for delays or not doing the right thing.

Dr Ivan Zinger, Correctional Investigator, Annual Report 2017-2018Correctional Investigator Dr Ivan Zinger

Read the Annual Report 2017-2018 in English below or in French here:

Correctional Investigator

 

Posted by mp in OPCAT, Ratification, 0 comments

Yet Another Canadian Free UN Expert Body

A leading United Nations human rights expert body will regrettably remain Canadian free for at least another two years after Thursday’s elections in Geneva, Switzerland.

The vote on more than half the membership of the 25-person UN Subcommittee on Prevention of Torture was once again notable through the absence of any Canadian candidates for this esteemed multi-national UN body.

Canadian free

Nations Unies by MPDO1605 (2008)

The outcome of the tightly contested ballot was announced on 25 October, resulting in the election and re-election of some excellent human rights experts.

Due to Canada not being a State Party to the OPCAT, the country had neither the possibility of putting forward a Canadian candidate, nor the right to cast a vote to determine the composition of the UN’s largest human rights treaty body.

With a vitally important human rights role to play in the global fight against torture, the UN Subcommittee might have benefited significantly from Canadian human rights expertise, which unquestionably exists in abundance in the country. Moreover, in the light of the fact that Canadian experts occupy just one out of 162 seats which comprise the 10 existing UN treaty bodies, Canada’s potentially sizeable human rights role on the international stage remains surprisingly diminished.

Even so, if Canada acted on its OPCAT pledge and swiftly moved forward with the ratification of the instrument, Canada would be strategically placed to advance a Canadian candidate for the next SPT elections due in 2020.

By doing so, the very positive influence of Canada’s accession to the instrument might equally be felt inside the country as well as out.

For readers who are unsure how the UN treaty bodies operate in practice, please watch the short animation below.

 

Posted by mp in OPCAT, SPT, UN Subcommittee, 0 comments

UNCAT Meeting on Canada: Civil Society Views Solicited

With just a month to go before the UN Committee against Torture’s examination of Canada in Geneva, civil society’s views were recently solicited in the run-up to this important UNCAT meeting.

On 17 October 2018 the Department of Canadian Heritage convened a meeting in Ottawa of the country’s principal civil society and Indigenous groups to discuss various crucial questions surrounding the implementation of the UN Convention against Torture in Canada.

UNCAT meeting

John G. Diefenbaker Building – Old Ottawa City Hall by Jamie MacCaffrey.

In its invitation to civil society and Indigenous groups the Department of Canadian Heritage wrote: “In preparation for this appearance, federal, provincial and territorial governments are seeking the views of Canadian civil society organizations and Indigenous representatives on Canada’s implementation of the CAT.” The UNCAT meeting was held in Old Ottawa City Hall in the heart of the nation’s capital (please see left).

Approximately 15  civil society and Indigenous group representatives attended the meeting, who were joined by an array of government actors from different federal, provincial and territorial spheres (both in person and by teleconference). A diversity of human rights subject matter was discussed during the exchange, including issues such as Canada’s implementation of the Convention, policing, non-refoulement and the rights of migrants, corrections, national security, and violence by private actors, particularly against Indigenous women. The agenda of the meeting can be found at the bottom of this news article in French and English.

As highlighted previously on the Canada OPCAT Project website, the UN Committee is timetabled to examine Canada at 10 am Geneva-time on 21 November, while Canada’s replies to the UN Committee will be heard from 3 pm onwards on 22 November.

 

Focus on the OPCAT

The question of Canada ratifying the OPCAT was also discussed and throughout the exchange several civil society groups made verbal reference to the instrument. A representative from Global Affairs Canada underscored that, while the ratification of the OPCAT was a priority of some importance for Canada, the process of putting in place an NPM was a complex exercise and certain financial considerations had also to be taken into account.

Even so, it was made known that Global Affairs Canada had also been in contact with various OPCAT-focused entities internationally. These included actors in countries where the OPCAT had or was in the process of being implemented, including New Zealand and Australia.

It was highly noteworthy that, in addition to the Canada OPCAT Project’s briefing-paper, several Canadian civil society organizations have highlighted the recommendation of OPCAT ratification in their written shadow-reports to the UN Committee. These include ACAT Canada/FIACAT, Amnesty International Canada, Canadian Human Rights Commission and the International Civil Liberties Monitoring Group (ICLMG).

In its shadow-report Amnesty International Canada expressed concern that, despite the May 2016 statement by the then Minister of Foreign Affairs that the OPCAT would no longer be optional for Canada: “More than two years later accession has not yet occurred, and there has been no public update regarding progress.” It therefore recommended that Canada should reconfirm that it intends to accede to the OPCAT, provide a public report on the progress of consultations with provincial and territorial governments, and accelerate those consultations towards a successful outcome.

ACAT Canada/FIACAT similarly urged Canada in their shadow-report to: “Respecter sa promesse de ratifier, dans le plus brefs délais, le Protocole facultatif à la Convention contre la torture (OPCAT)”, a view point also shared by the ICLMG. ACAT Canada/FIACAT also stressed the inadequacies of existing monitoring bodies as well as gaps in oversight coverage in the pages of its detailed report.

In its shadow-report the Canadian Human Rights Commission made the following key point: “In a geographical large, complex federal state such as Canada, it is imperative that the National Preventive Mechanism (NPM) be carefully designed with appropriate legislative authorities and coordination mechanisms. It is also imperative that it be provided adequate resources to effectively carry out its work.”

It is hoped that the opinions of civil society and Indigenous groups on the OPCAT as well on a myriad of other human rights issues under the UN Convention against Torture are taken into consideration in Canadian government circles. It also hoped that the latter act positively on the outputs of the UN Committee against Torture’s examination of Canada in Geneva in late November 2018.

UN Web TV will broadcast the UN Committee’s examination of Canada live on 21-22 November. Interested persons will therefore be able to tune-in in real time or alternatively watch audio-visual recordings of the process on demand afterwards.

 

Agenda:

EN Agenda_CAT engagement

FR Ordre du jour_Séance d’engagement CCT

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COPCAT Shorts: Too Many States Failing OPCAT

Although over 60 NPMS have been established in countries around the world – a major success story – it remains the case that a significant number of OPCAT state parties have failed to do so … The obligation to establish an NPM is a central element of the OPCAT. We just do not understand why these states believe that they do not need to do so.

We will continue to do what we can, but at the end of the day a State either takes its international obligations in respect of torture prevention seriously, or it does not. Those states which have not established their NPM as they ought do not appear to the SPT to be taking their obligations very seriously at all.

Statement of Sir Malcolm Evans, Chairperson of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to the UN General Assembly Third Committee, New York, 15 October 2018.

Read the full statement here.

Watch the joint press briefing by Malcolm Evans, Chair of Subcommittee on Prevention of Torture; Jens Modvig, Chair of Committee Against Torture; and Nils Melzer, Special Rapporteur on Torture from 16 October 2018.

States Failing OPCAT

Torture Prevention – Press Conference, 16 October 2018 (copyright UN Web TV).

Posted by mp in Monitoring tools, OPCAT, SPT, 0 comments