Consultation

The Canadian Seniors Care Home Scandal – A Catalyst for Change?

Four years’ ago this week, the then Minister of Foreign Affairs, Stéphane Dion, declared to the world that the Optional Protocol would no longer be optional for Canada in the future, a full decade after Canada had originally hinted it would ratify the instrument in 2006.

Put it down to forgetfulness, institutional amnesia or even just debilitating procrastination, Canada has yet to make good on its stated commitment to finally put pen to paper at UN headquarters in New York and ratifying the instrument.

In so not doing, Canada may well have succeeded in setting a new world record for the longest OPCAT ratification process in the instrument’s history – at least for an advanced democracy – trailed in close second by the Republic of Ireland (which has, if nothing else, signed the instrument).

No other contenders for the record come to mind. On the other hand, quite a few other countries who lag significantly behind Canada in overall human rights terms have done so – long ago even. Argentina, Armenia, Georgia, Kazakhstan, Kyrgyzstan, Mexico, Serbia and Tunisia spring immediately to mind.

Guinness World Records 2020 – Debbie Harris (2019).

Over the years there has been no lack of international encouragement for Canada to make good on its commitment to ratify the OPCAT, not least by the UN Human Rights Council and UN Committee against Torture in 2018.

After undertaking fact-finding missions to these Canadian shores, the UN Special Rapporteur on violence against women and UN Special Rapporteur on the rights of persons with disabilities both urged Ottawa to ratify the instrument in their 2019 reports.

So what goes on in Ottawa? Frankly, probably very little it would seem. The Canada OPCAT Project’s repeated attempts to elicit even a single atom of information about the not-on-going OPCAT ratification and consultation process through Access to Information & Privacy (ATIP) requests have proven largely ineffective.

A December 2019 ATIP request seeking clarity about whether Global Affairs Canada (supposedly the lead OPCAT ratification agency in Canada) had liaised with civil society groups on the ratification of the instrument since Canada’s examination by the UN Committee against Torture in Geneva in November 2018 has, to date, gone entirely unheeded.

The current Covid-19 emergency will undoubtedly squelch any remaining hope, no matter how dim, of ever receiving a reply to this eminently reasonable request.


Yet just look 360 degrees about you. If there were ever a time when effective, robust oversight of Canada’s closed institutions were needed, then that moment is right now.

The current Covid-19-related crisis in Canada’s long-term care homes for seniors is a sadly illustrative case in point. So far, fingers tightly crossed, the coronavirus health crisis has not severely afflicted the Canadian prison system in terms of fatalities. In stark contrast, however, private and state-run care homes for seniors have been utterly ravaged by the virus.

Unfathomably, seniors have been dying in scores in the very facilities designed to care for them. The sheer daily number of news entries listed in the COVID-19 Deprivation of Liberty Corner, reporting the appalling deaths and infection rates of society’s seniors, is a reflection of the current, depressingly critical situation.

Watch For Senior Citizens – Ethan Prater (2008).

Yet where are the rugged, independent mechanisms pointing the finger at and holding these facilities to account?

Is it entirely accidental that these most lightly regulated of institutions have fared so poorly in dealing with the existing pandemic? If the current death rates had plagued Canada’s prison estate, there would have been a unshakable national scandal by now, and rightly so.

Yet where is the seething anger regarding how Canada’s seniors are being treated?

Robust, independent oversight is not a panacea to society’s closed institutional ills, even more so at moments of public emergency like the present. Yet it is a pretty decent start.

It can ensure that the human rights and dignity of persons found therein, whether they be senior citizens, migrants or prisoners, are observed during both the best and worst of times.

If there is nothing like a raging public row to clear the air, then that moment is arguably the present. Increasingly thunderous calls for change in how senior care is operated in Canada should result in a complete overhaul of the private and public long-term care system for the elderly, resulting in sweeping change which incorporates robust, independent oversight thereof at all jurisdictional levels.

The OPCAT human rights instrument could be a key component of this much-needed change-process.

Sidewalk Reassurance – Travis Wise (2020).

From an OPCAT perspective, the question of whether senior care homes fall within the scope of OPCAT Article 4’s definition of deprivation of liberty has long been settled. Furthermore, the highly respected European Committee for the Prevention of Torture has been visiting care homes of different types for many years as part of its core detention monitoring mandate.

In August 2019 leading Australian academic Laura Grenfell made some excellent arguments why seniors’ homes fall squarely within the scope of OPCAT Article 4 in a journal article titled Aged care, detention and OPCAT, featured in the Australian Journal of Human Rights. The latter journal has devoted invaluable space in recent months to the important issue of OPCAT implementation in Australia, several articles from which have been highlighted in the OPCAT Academics section of this website.

In the said article Professor Grenfell underpinned the crucial importance of independent oversight of senior care facilities, as follows:

Current federal and state schemes for the monitoring and oversight of closed aged care facilities are inadequate. This is largely due to the hodgepodge of standards and existing inspection bodies’ lack of expertise. It is critical for civil society to encourage government to adhere to and resource best-practice OPCAT monitoring for aged care facilities where people are detained in closed units. Monitoring by NPM teams using rigorous and nationally consistent human-rights-based standards will allow the risks facing a vulnerable group of people – who, in SA ICAC’s words, ‘lack any voice themselves’ and are ‘entirely dependent upon others for their care and their safety’ (South Australian Independent Commissioner Against Corruption 2018, 190) – to be assessed. People who are deprived of their liberty in closed aged care units are in a vulnerable position and are at a disproportionately high risk of torture or cruel, inhuman or degrading treatment. Closed units in aged care facilities should not be allowed to fall under the OPCAT radar.

What has come to pass in Canada’s long-term care facilities for seniors can never be allowed to happen again. The need for robust regulation and effective, hard-wearing arms-length oversight of such institutions should be the catalyst for a long overdue, re-energized national discussion on the ratification and implementation of the OPCAT in Canada.

As opposed to further OPCAT procrastination, Canada should strive to be a world record-breaker in how it treats its senior members of society as a barometer of its commitment to everyone’s human rights – the young and the old. After all, we are all headed in the same direction. The effective implementation of the OPCAT could make a decisive contribution to this overarching process.

Yet with the ratification of the OPCAT being entirely a figment of someone else’s imagination in Canadian government circles these days – or seemingly so – something fundamentally needs to change in Ottawa’s corridors of power.

Four further years of OPCAT procrastination, after the country’s then Minister of Foreign Affairs very publicly committed to OPCAT ratification, is nothing to be proud of. In view of the current seniors care homes scandal, sitting on one’s hands no longer remains an acceptable national policy option.


Read Laura Grenfell’s article, Aged care, detention and OPCAT in the Australian Journal of Human Rights.

Explore other academic articles in OPCAT Academics.

Learn more about the OPCAT ratification process in Canada.

Find other materials on Covid-19 and detention.

Posted by mp in Australia, Civil society, Consultation, OPCAT, Oversight bodies, Senior care homes

A Silence Not Golden – ATIP Request Update

Silence may not always be golden, as the outstanding response to the Canada OPCAT Project’s recent Access to Information & Privacy Request (ATIP) has most positively proven. Global Affairs Canada has regrettably failed to respond to the website within the permitted 75-day deadline.

As a result of the ongoing silence, the Canada OPCAT Project has filed a complaint with the Office of the Information Commissioner of Canada. Established in 1983, this mechanism carries out confidential investigations into complaints about federal institutions’ handling of Access to Information Requests, including in cases of non-response.

To briefly recap, an ATIP Request was submitted to Global Affairs Canada 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.

Silence, please – Shawn Rossi (2008)

More frequent visitors to the Canada OPCAT Project website will recall that in its Concluding observations the UN Committee against Torture had recommended in December 2018 that Canada should undertake the following steps:

“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]

In the December 2019 ATIP Request to Global Affairs Canada (the lead Federal Department on OPCAT ratification), the Canada OPCAT Project asked for the following information.

“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.

Silence is golden – Lorie Shaull (2015)

Frustratingly, Global Affairs Canada’s continued silence can only be construed as a failure to respond to the initial petition, despite having more than 80 days to process the said request.

Regrettably, today’s complaint was not the first instance when the Canada OPCAT Project has been forced to resort to the Office of the Information Commissioner in order to elicit a response from a Federal Government Department. In 2018 Justice Canada failed to respond to an ATIP Request about the on-going OPCAT consultation process within a similarly extended time period, resulting in the lodging of a complaint with the institution.

The eventual response of Justice Canada to the information request arrived in a highly redacted form, casting a dark shadow over the Canadian authorities’ genuine commitment to an open and transparent OPCAT consultation process. The paucity of information since shared by any federal agency on this important human rights issue, including by Global Affairs Canada, has only reinforced this highly disappointing impression.

We can only hope that the final response from Global Affairs Canada will be worth the long wait.


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

See Justice Canada’s highly redacted response to the website’s 2018 ATIP Request and read what we found out about the OPCAT consultation process.

Posted by mp in Civil society, Consultation, Indigenous people, OPCAT

75 Is Not A Lucky Number – Global Affairs Canada’s ATIP Response

Earlier this week the Canada OPCAT Project received an initial response from Global Affairs Canada concerning its latest Access to Information request. A response of sorts perhaps!

To quickly recap, the Canada OPCAT Project filed an Access to Information and Privacy (ATIP) request on 23 December 2019 requesting information from Global Affairs Canada about the scope of its supposedly ongoing OPCAT ratification consultation process with Canadian civil society and Indigenous groups throughout 2019. You can find out more here.

During its examination by the UN Committee against Torture in Geneva in November 2018 Canada stated publicly that it would endeavor to consult with Canadian civil society on the important human rights topic of OPCAT ratification.

Alan Levine, Open or Closed (2012).

In an official response dated 13 January 2020 the Canada OPCAT Project was informed the following:

“In accordance with paragraph 9(1)(a) of the Act [Access to Information Act], an extension of up to 45 days beyond the original statutory limit is required since meeting the original time limit would unreasonably interfere with the operations of the Department.”

In a nutshell, Global Affairs Canada has given itself up to 75 days (the initial 30 + 45 additional days) to respond to the above request about Canada’s OPCAT consultation process. Let us be clear – 75 days is a more than a fifth of a year!

How might one interpret this seemingly 75-day hesitancy?

  • Global Affairs Canada is exceedingly busy;
  • The department is under-staffed;
  • Global Affairs Canada has an abundance of OPCAT consultation-related information to sift through and possibly redact in order to fully respond to the information request;
  • ATIP requests are generally low on the department’s list of priorities, but it will comply with the law by requesting a 75-day response time;
  • Or possibly a mixture of all of the above.

Readers can make their own minds up, but we would tend to shift towards the lower end of the list.

Alan Levine, Sorry We Are Not Open (2012)

If an uncomfortable truth be told, if Global Affairs Canada as the lead agency on the OPCAT just occasionally provided updates about Canada’s OPCAT ratification process, recourse to Access to Information legislation would not be necessary.

After over 18-months of operation and after publishing 120-odd different articles, the Canada OPCAT Project has not been in a position to publish a single news item about the ratification of the OPCAT in Canada based on information unilaterally and voluntarily placed into the public domain by a department of the Canadian Government, such has been the absolute paucity of publicly available information.

If the Canadian Government is willing to place on public record that the ‘Optional Protocol is no longer optional for Canada‘, then it should not be surprised that actors remain committed to holding it to its word.

Please return in mid-March 2020, dear readers, for Global Affairs Canada’s full ATIP response.


Read how the OPCAT might be instituted in Canada.

Find out more about the December 2019 ATIP request.

Posted by mp in Civil society, Consultation, Indigenous people, OPCAT

Access to Information Request – Canada’s OPCAT Consultation Process 2019?

In November 2018 the UN Committee against Torture examined Canada’s seventh periodic report in Geneva, Switzerland, issuing a set of key recommendations in a document dated 21 December 2018.

Among the UN Committee’s numerous recommendations was 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) for more detailed information.

But what has happened in practice regarding the recommended consultation process with civil society, indigenous groups and other stakeholders since December 2018? The Canada OPCAT Project asked this simple question in an Access to Information and Privacy Request (ATIP Request) filed with Global Affairs Canada on 23 December 2019.

Information by Alexander Svensson (14 October 2010).

The Canada OPCAT Project lodged the following ATIP Request:

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 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.

Upon official receipt, Global Affairs Canada has 30 calendar-days to process this request, unless it asks for an extension in order to be able to do so.

Information by Damian Gadal (1 March 2015).

Frequent visitors to the Canada OPCAT Project website will recall that our past attempts to prise open information about the OPCAT consultation process from the Federal Government have been – at best – highly unsuccessful.

An Access to Information and Privacy Request from June 2018 to obtain a copy of a Justice Canada-led legal analysis on accession to the OPCAT resulted in reams of withheld information and page-upon-page of redaction. In the overall process of analysis Justice Canada had sought detailed information in a questionnaire form from the country’s 13 provinces and territories about the potential ratification and implementation of the instrument.

A final response was elicited from Justice Canada on 29 October 2018, which provided the Canada OPCAT Project with a highly truncated and redacted copy of its OPCAT legal analysis. Of this 281 page-report some 240 pages were withheld, while a further 41 released pages were significantly redacted, offering limited insights into the on-going ratification process in the country. The Canada OPCAT Project released a critical statement about this response.

Even so, through the issuing of analogue Access to Information Requests with different provinces and territories individual responses to Justice Canada’s questions were obtained. It should be noted, however, that certain provinces blankly refused to do so, or provided highly redacted responses.

Will it be any different this time regarding the current Access to Information and Privacy Request with Global Affairs Canada? For this answer, please follow these pages closely in the coming weeks.


Find out more about Canada’s OPCAT ratification process here.

Conversely, find out more about Australia’s more open and inclusive OPCAT implementation process in this series of different articles (please click on the three preceding links).

Posted by mp in Consultation, OPCAT, Ratification

Essential Christmas Reading – UWA OPCAT Series

With Christmas just around the corner and the prospect of being incarcerated over the break in close quarters with your loved and perhaps less loved ones (‘you can choose your mates…’) what could be more appealing than some essential reading on the OPCAT to transport you elsewhere?

The University of Western Australia (UWA) has recently published a four-part OPCAT series which has resonance for those of us north of the 49th parallel. While not too heavy to digest, this set of four blogs, give us much to ponder about the OPCAT in the Canadian context.

Kicking off the series, UWA Public Policy Institute Director Shamit Saggar poses the question, ‘can we afford to rely on a complaints-based system?’ In examining the suitability of complaints-focused bodies in the Australian context as it prepares the ground for the implementation of the OPCAT, the writer remarks that “…there is little support for relying on a traditional complaints-approach to the challenge”.

In a paper published earlier this year the Canada OPCAT Project advanced a host of reasons why in the Canadian context a new mechanism should be created for the purposes of OPCAT implementation, primarily due to concerns about the limitations of designating existing ombudsperson-type bodies. Shamit Saggar verbalizes some parallel concerns in the Australian context.

More essential OPCAT reading is provided by Professor Manfred Nowak, who is no stranger in these pages. In a slightly longer contribution, Professor Nowak’s article is aptly titled ‘Australia’s obligations under OPCAT: The challenging task of establishing an effective in a federal state’. Like Canada, Australia is a federal state and as such must institute an NPM in a range of different jurisdictions. In the light of the progress attained in Australia so far, it is the view of this former Special Rapporteur on torture that:

… Australia could become a model for establishing effective NPMs within a federal state structure. The Commonwealth Ombudsman has recently published an excellent and comprehensive baseline study which outlines the variety of places of detention and the extent to which these places are already subject to inspections. This baseline study is intended to serve as basis for states and territories to nominate their respective NPMs.

Manfred Nowak by Phil Strahl (2007)

That being so, Professor Nowak also identifies various risks with the current OPCAT implementation process in Australia, including pertinent questions about the adequate resourcing and overall coordination of the future NPM. Moreover, the current narrow OPCAT approach of the Australian authorities to so-called ‘primary places of detention’ with its exclusion of a whole swathe of potential places of deprivation of liberty Professor Nowak views as especially problematic, and rightly so. A recent article by Laura Grenfell points out why a wider interpretation to OPCAT Article 4 is required in Australia. Nonetheless, as has been argued on several occasions on this website, for Canada there are many lessons which can be drawn from the Australian OPCAT context.

Australian OPCAT enthusiast extraordinaire Steven Caruana offers a refreshingly critical take on the OPCAT implementation process in Australia, despite its noted merits. In an article titled ‘The need for formal partnerships between civil society and the National Preventive Mechanism’ Steven writes the following:

To date, formal civil society participation in the establishment of the NPM and its preventive work has been restricted to consultations with the Australian Human Rights Commission. Substantial engagement with the federal, state and territory governments has been limited. In the case of Western Australia, designation of the Western Australian Ombudsman and Inspector of Custodial Services was made with no public consultation let alone a public announcement.

It is interesting to note that this lack of engagement has not gone unnoticed…

In this excellently succinct article the writer sketches out UN Subcommittee on Prevention of Torture best practice on third section OPCAT consultation as well as civil society’s potential involvement in domestic NPM schemes. In what exact form the Australian model will emerge, it remains to be seen. Yet despite any perceived shortcomings Down Under, it goes without saying that the Australian consultation process is still light years ahead of the virtually non-existent analogue process in Canada.

In a final article in the series, against the backdrop of the Australian Government’s increasingly sceptical position towards what has been termed as “negative globalism”, Holly Cullen cautions how such a sentiment could pose obstacles to the country realising the full potential of an effective implementation of OPCAT in preventing human rights abuses. In doing so, the writer stresses the following key point which ought also to be heeded by the Canadian authorities:

OPCAT is a human rights treaty. Its implementation cannot be treated as a mere technical exercise of identifying existing public bodies and giving them an additional responsibility. NPMs must be adequately resourced, and an appropriate legislative framework will need to be established. 

Sadly, the above business-as-usual approach to OPCAT implementation has been the downfall of many a national OPCAT system.

And that, ladies and gentlemen, is the first installment of your essential reading on the OPCAT this Christmas. All four articles merit a closer reading, while readers with more time on their hands over the holidays may wish to peruse the OPCAT Academics section of the website, where you will find some excellent academic articles on torture prevention. Please tune into these pages over the holidays, as further recommendations will soon follow. Until then dear readers, a very Merry Christmas to you from Ottawa, Canada.

Posted by mp in Academic, Australia, Civil society, Consultation, OPCAT

New OPCAT Discussion Paper! Instituting A National Preventive Mechanism In Canada

The Canada OPCAT Project today launches a major discussion paper on how the OPCAT might be implemented in Canada. Titled ‘Instituting A National Preventive Mechanism In Canada – Lessons Based on Global OPCAT Implementation’ the paper argues that a brand new institution should be established as the country’s future NPM under the instrument.

To date, the very limited publicly available information strongly suggests that Canada is considering designating an array of existing detention oversight bodies as part of a multi-body NPM.

However, as the on-going government-sponsored OPCAT consultation process in Canada has been almost entirely closed to civil society and Indigenous groups, it remains impossible at the present time to say whether this is the case for certain.    

Nonetheless, the published discussion paper strongly argues against such a potential multi-mechanism approach to OPCAT implementation in the country and contends that the optimal NPM solution would be to establish an entirely new structure.

Discussion paper
Prison by Kim Daram (2005)

The establishment of a specialized NPM would have to overcome some very tangible political and legal obstacles if it were to become a reality. Crucially, the Canadian Government and its provincial and territorial counterparts would have to develop an appetite to finance such a body.

Even so, the alternative approach of designating a combination of existing bodies at the federal, provincial and territorial levels would be arguably much more complicated politically, legally and organizationally and possibly even more expensive.

The research inevitably focuses in-depth on the existing human rights architecture in Canada as part of this wider discussion. In so doing, the discussion paper offers an analysis of the different mechanisms which could potentially play a role vis-à-vis the OPCAT, most commonly a combination of federal, provincial and territorial human rights commissions and ombudspersons offices.

The paper concludes, however, that without significant modifications to their legal statutes, mandates and operational foci, organizational structures, budgets and composition these mechanisms would be poorly placed to assume an OPCAT mandate.

In order that this discussion paper is not a mere exercise in mapping out different NPM scenarios in the Canadian context, the research also draws heavily on existing global OPCAT practice at the national level. This central focus of the research has been undertaken with a view to highlighting the potential shortcomings which frequently beset NPMs as well as to underscoring good NPM-related practice.

By drawing on this domestic analysis as well as an examination of OPCAT global practice, the key question is thereby explored of how the OPCAT might be effectively implemented in Canada in accordance with key international guidance and advice.

Even if readers disagree with the ultimate thrust of the document, its publication is primarily intended to stimulate a lively discussion in Canada on how the OPCAT might be implemented in practice. Surprisingly, to date, there has been relatively little academic research undertaken into this key question in the country. This discussion paper therefore seeks to plug this gap and explore how Canada might implement the instrument domestically.

Discussion paper Aberystwyth University

This research was originally undertaken by the Canada OPCAT Project’s Matthew Pringle in the course of 2018 as part of an LL.M. dissertation in International Human Rights and Humanitarian Law. It was presented to the Department of Law & Criminology at Aberystwyth University in Wales in late September 2018. The research was very well received by Aberystwyth University and in December 2018 it was formally awarded a mark of 95% as well as the Aberystwyth University Graduate School Prizes for the highest scoring dissertation and masters across the university.

However, please do not take Aberystwyth University’s word for it! Why not download the paper and make your own mind up whether a new NPM institution is the optimal solution for Canada’s challenge of implementing the OPCAT?


Posted by mp

Why So Secret? Justice Canada’s OPCAT Consultation Questions

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

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

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

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

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

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

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

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

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

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


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

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

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

a) Are the bodies independent of government?

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

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

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

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

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

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

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

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

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

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

l)  Are annual reports issued and made public?

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

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

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

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

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

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

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

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

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

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


Read more about the Canada OPCAT consultation process here.

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

Posted by mp