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

Canada & OPCAT Ratification – Does This Sound Vaguely Familiar?

“The OPCAT has now been ratified by 90 countries from all regions of the world, with Iceland and South Africa joining the OPCAT system so far this year. This is an impressive number but there are still a considerable number of states parties to the Convention against Torture which have not yet done so. All States Parties to the Convention against Torture are already bound to take preventive measures by virtue of article 2 of that Convention, and it has been the longstanding position of the SPT that that obligation is best fulfilled through ratification of the OPCAT, which is entirely focussed on effective prevention. Numerous states have undertaken to do so during the course of their Universal Periodic Reviews by the Human Rights Council: but these commitments sometimes seem to be swiftly made, but slowly fulfilled. The SPT hopes that the rate of growth in participation will quicken in the coming months as more states seek to honour their commitments to ratify.”

Statement by Sir Professor Malcolm Evans, Chairperson of the UN Subcommittee on Prevention of Torture, to the 74th session of the General Assembly Third Committee in New York on 14 October 2019.

Sir Professor Malcolm Evans, Chairperson of the UN Subcommittee on Prevention of Torture, presents to the Third Committee of the UN General Assembly, 14 October 2019, in New York. Image copyright of UN Web TV.

If one reflects that over the years – many years – there have been repeated past high-profile statements (like the above) by Canada purporting to commit to the country’s potential ratification of OPCAT, then the overall lack of progress of the North American state to make good on such pledges (both to the UN Human Rights Council as well as other key UN bodies) is unquestionably disappointing.

Astonishingly, Canada first used the pledge of OPCAT ratification during its candidacy for membership of the UN Human Rights Council as far back as 2006, a pledge unfulfilled to the present day.

During its first Universal Periodic Review (UPR) by the Human Rights Council in February 2009 Canada accepted the recommendation to possibly ratify the OPCAT. During its second UPR cycle in April 2013 Canada once again accepted in principle the recommendation to do so, even though it stated that at the time it had no plan to ratify the instrument. Nonetheless, Canada did not reject the recommendation outright at that time.

As recently as May 2018, during Canada’s third-cycle UPR by the UN Human Rights Council, some 27 countries urged Canada to either ratify the OPCAT or consider the ratification of the instrument. During this review Canada repeated its position that it was “… considering becoming a party to the Optional Protocol to the UN Convention against Torture, as well as options to implement that instrument.”

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

Canada reported back to the Human Rights Council during its 39th Session on 21 September 2018, stating that it had indeed accepted the recommendation to consider ratification of the OPCAT. Again.

Since 2018, no shortage of UN experts have urged Canada to advance and expedite the OPCAT ratification process, as highlighted on this website. Yet, disappointingly, little tangible progress has seemingly been made in practice to do so. The complete lack of transparency and publicly available information about any domestic process has further obfuscated the issue. Simply put, Canadian civil society remains well and truly in the dark about what is and what is not being done by Canada to make good on its UPR pledges.

In view of Canada’s (to put it kindly) patchy OPCAT track-record one cannot escape the distinct feeling that – to paraphrase Sir Professor Malcolm Evans above – OPCAT commitments have been swiftly made, but slowly fulfilled. Very, very slowly…

Sir Professor Malcolm Evans was joined by the UN Special Rapporteur on torture, Nils Melzer, and the Chairperson of the UN Committee against Torture, Jens Modvig, during the UN Third Committee session.

You can read Professor Evans’ full written statement to the UN Third Committee here or watch it on demand at around the 38-minute mark.

Watch the three torture prevention experts present their respective reports to the Third Committee of the UN General Assembly on 14 October 2019.

In addition, readers might wish to watch the ‘Prevention of Torture Press Conference’ from 15 October 2019.

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

UN Independent Expert Manfred Nowak Urges OPCAT Ratification

“Data collected for the study and well-grounded scientific approximations indicate that, altogether, a minimum of between 1.3 and 1.5 million children are deprived of liberty per year. Of those, the largest number are in institutions (430,000–680,000), followed by those in the administration of justice (410,000), migration-related detention (330,000), in armed conflict situations (35,000) and for national security reasons (1,500). An additional 19,000 children are living with their primary caregivers in prisons. The Independent Expert wishes to stress that those figures are arrived at on the basis of scientifically sound methodologies, yet remain highly conservative owing to the scarcity of official and reliable disaggregated data. In particular, the figures do not include the approximately 1 million children in police custody and an even higher number of children deprived of liberty de facto in institutions.”

Professor Manfred Nowak – Independent Expert leading the global study on children deprived of liberty (UN Doc. A/74/136, 11 July 2019) §86.

On 8 October 2019 the Independent Expert leading the global study on children deprived of liberty, Professor Manfred Nowak, submitted his final report on the ‘Global study on children deprived of liberty’ to the Third Committee of the General Assembly during its 74th session in New York.

As noted in the summary of the report, in its resolution 69/157 of 18 December 2014, the General Assembly invited the Secretary-General to commission an in-depth study on children deprived of liberty.

Professor Manfred Nowak was appointed as Independent Expert leading the study in October 2016, which is the first scientific attempt, on the basis of global data, to comprehend the magnitude of the situation of children deprived of liberty, its possible justifications and root causes, as well as conditions of detention and their harmful impact on the health and development of children. The above quotation highlights the enormous scale of the global phenomenon.

Prison 4040 by Sylvia Westenbroek (2006)

In the study Professor Nowak examines six situations of children deprived of their liberty, including in the administration of justice, children living in prisons with their primary caregivers, migration-related detention, institutions, armed conflict and national security contexts. In Canada children and young persons are deprived of their liberty in various such settings, including young offenders institutions, immigration detention centres, mental health and social care facilities, not to mention police detention facilities.

Among his numerous concerns and recommendations Professor Manfred Nowak noted with some alarm that:

“The absence of independent monitoring bodies with the mandate of carrying out unannounced visits to all places of detention contributes to the continuation of … conditions, which can amount to inhuman and degrading treatment.” (§97)

In this same connection the Independent Expert advanced the following key recommendation:

“States are strongly encouraged to ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and to establish independent and effective national preventive mechanisms with a particular expertise, to conduct visits to places where children are, or may be, deprived of liberty.” (§104)

Manfred Nowak by Phil Strahl (2007)

To date, 90 out of 193 United Nations Member States have ratified the OPCAT. Canada, like the neighbouring USA, is not one of these countries, despite making repeated assertions that it would ratify this key UN instrument. In stark contrast, most countries in the Central and Southern parts of the Americas are States Parties to the instrument, begging the very good question why Canada is lagging so far behind the rest of the hemisphere? If Argentina, Mexico and Brazil can ratify the OPCAT (all federal states to boot), why not Canada?

Find out more about Children Deprived of Liberty – The United Nations Global Study.

Read the report in English or in French.

Examine recent reports about the treatment of young offenders in Alberta and Manitoba.

See which countries have ratified the OPCAT.

Learn more about how Canada might ratify and implement the OPCAT.

Posted by mp in OPCAT, Places of detention, Ratification

Happy Birthday to Us! The Canada OPCAT Project at One Year Old

Acutely inspired by successive Canadian government pledges over a 12-year period to ratify the OPCAT, while doing precious little about it in practice, the Canada OPCAT Project entered this fine world during the final week of July 2018.

Created on a shoestring budget of 120 Canadian dollars, albeit with much elbow-grease, the Canada OPCAT Project came into being with the aim of throwing light on Canada’s domestic OPCAT ratification process.

Some 90 or so posts and eight website sections later, we remain a very small, but hopefully somewhat useful somebody on Canada’s wider human rights landscape.

1st Birthday Cake Face by Suzanne Schroeter (2014).

The highly respected international NGO, Penal Reform International, was the unwitting victim of our very first test post, while over the past 12 months many other organizations and individuals broadly engaged in torture prevention have had their superb work and sterling efforts featured on the website.

Against all good web-development advice (and probably good common sense), the website was built live, piece-by-piece, with various sections slowly being added. Over the past year, an ever great number of posts have since been thrown into the ether on all manner of issues with an OPCAT and/or torture prevention slant.

In truth, with no heavy bureaucracy, we can post whatever related human rights content we wish, such is the utility and flexibility of the site.

Yet if the aim of the website was to cast light on Canadian government activities aimed at ratifying the OPCAT, then unhappily dear readers, there has been very little progress to report on this front over the past year. At least from the side of Canadian government.

A comprehensive Justice Canada-led legal analysis of how to possibly implement the OPCAT in Canada remains classified and is unlikely ever to see the light of day.

Most regrettably, the Canadian OPCAT consultation process remains entirely closed to civil society at the present moment and there is nothing to indicate that this unacceptable state of affairs will change one jot in the near future.

For the record it should be underscored that this status quo is contrary to all international best practice-related advice and guidance, including by the UN Subcommittee on Prevention of Torture. This key point has been repeatedly made in these corridors.

The reality is such that federal, provincial and territorial governments will continue to quietly confer among themselves behind closed doors on this key human rights issue and that Canadian civil society will only be asked its opinion on this question at the very last moment – once the decision to ratify the OPCAT and the shape and structure of the future NPM have been largely determined.

If there were ever a completely closed and opaque OPCAT ratification process, then one need look no further than Canada.

That being so, casting such pessimism aside for an instant, the past year has also brought with it certain welcome developments.

In September 2018 the Canadian government responded to its May 2018 Universal Periodic Review by stating before the UN Human Rights Council in Geneva that it would consider the ratification of the instrument. It bears noting that during this UPR process some 27 different countries advanced recommendations that Canada should either ratify the OPCAT or consider its ratification.

On an equally welcome note, in December 2018, the UN Committee against Torture urged that Canada should complete the OPCAT ratification process and, in so doing, consult with Canadian civil society.

The key recommendation that Canada should ratify the OPCAT has also repeatedly been highlighted by different UN special procedures, including the UN Special Rapporteur on the rights of persons with disabilities during her 11-day April 2019 mission to Canada.

In June 2019, in her final report of her mission to Canada the previous year, the UN Special Rapporteur on violence against women advanced a similar recommendation.

Despite such welcome recommendations, what is clearly lacking in Canada is tangible progress on the ground to make such recommendations a reality and, equally as importantly, to include Canadian civil society in the process.

As to the future, what lies in store over the next year remains to be seen, of course. It would be comforting to forecast with certainty that the OPCAT would be signed or ratified within the next 12 months. Sadly, this outcome remains extremely unlikely.

No matter, having just coughed up 200 Canadian dollars in website hosting fees and for domain name rental for the year ahead, readers may be pleased to learn that the Canada OPCAT Project is set to remain in place for at least the next 12 months and it will continue to train its beady eye on domestic OPCAT developments.

It goes without saying that the Canada OPCAT Project remains extremely grateful to its many readers from both near and afar (in Canada and abroad) who have continued to encourage and support the work of the website and who have provided us with super-useful information and lent us their wise advice and many talents on the basis of nothing more than their kindness. Who could ask for more?

Please visit us again soon, dear readers!

Read the Canada OPCAT Project report, Instituting an NPM in Canada.

How is Canada faring against other countries OPCAT-wise? Read on.

Posted by mp in OPCAT, Ratification, SPT

An OPCAT Women’s World Cup 2019?

With heightened anticipation FIFA Women’s World Cup 2019 has finally kicked off in beautiful France. While our Canadian heroines have yet to kick a ball, Canada’s hopes and dreams are sky high. But will this be the tournament when the Canadian women’s national side finally fulfils its chock-a-block potential?

The high expectancy that Canadian national icon Christine Sinclair may succeed in surpassing Abby Wambach’s superbly impressive world-record tally of an amazing 184 goals will cause many a breath to be held. Just four goals short of this record, the Burnaby, B.C. native has every chance of making footballing history in the weeks to come in France.

Christine Sinclair’s red & white army by Matt Boulton (2012).

As a point of comparison, the men’s international football record is currently held by Iranian Ali Daei with 109 goals, while modern-day football idol (for some at least) Cristiano Ronaldo trails a colossal 99 goals behind Abby Wambach’s current record for women on a ‘mere’ 85 goals.

Our fixation with this record aside, the Canadian women’s squad finds itself corralled in Group E with Cameroon, New Zealand and the Netherlands. While not quite the tournament’s Group of Death, Canada will still have to make more than just a half-decent effort to progress further, starting in Montpellier on Monday evening (10 June) against Cameroon. Thereafter, New Zealand and the Netherlands will undoubtedly prove to be no push-overs.

Christine Sinclair (Trending Twitter Topics from 01.02.2019)

Yet what also strikes this writer about Group E – perhaps somewhat oddly – is that all the footballing nations in the pool have either signed or ratified the OPCAT. Bar Canada, that is.

Cameroon signed the instrument almost a decade ago, while New Zealand and the Netherlands ratified the OPCAT respectively in 2007 and 2010.  

Of all six World Cup 2019 clusters, Group F fares the worst with a 50% OPCAT ratification rate (Chile and Sweden have ratified the instrument, while USA and Thailand have not). In all of the other five groups, at least three of the four footballing nations have either signed or ratified the OPCAT.

In addition to Canada, other ‘OPCAT relegation’ sides include the Republic of Korea (in Group A), China (in Group B), Jamaica (in Group C), Japan (in Group D), and, as previously noted, USA and Thailand (in Group F). Readers can find a full list here.   

What does all this mean? In footballing terms, precious little of course. Yet in human rights terms these statistics are extremely illuminating of how much progress has been made in recent years to advance a crucially important international torture prevention instrument as well as, regrettably, the lamentable extent to which Canada has fallen behind the international pace.

In view of the publication earlier this week of the highly damning Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, Reclaiming Power and Place, and its multiple Calls for Justice in relation to law enforcement and prisons and the treatment of Indigenous women and girls, the swift ratification of OPCAT should be at the forefront of the Canadian Government’s mind.  

No matter, let us hope that there is greater progress on the football fields of France in the weeks ahead than has been with the goal of OPCAT ratification and that the Canadian national women’s side succeeds in rising together to attain much-deserved and long-overdue glory.

The Canada OPCAT Project will be closely following their progress and wishes the team the very best of luck.

Meet the Canadian women’s football squad.

Read Louise Taylor’s new feature in the 8 June edition of the Guardian newspaper, From pink goalposts to blue plaques: a history of women’s football.

Read The OPCAT – A Stuck Record? on Canada’s lack of progress vis-à-vis OPCAT.

Discover how the OPCAT might be implemented in Canada in the 2019 paper, ‘Instituting A National Preventive Mechanism In Canada – Lessons Based on Global OPCAT Implementation’. 

Posted by mp in OPCAT, Ratification

Academic News & Views: The Australian NPM Challenge Ahead

Canadian readers looking for a searching assessment of the on-going challenge to implement the OPCAT in a federal state need look no further than Professor Richard Harding’s new article in the current Special Issue on the OPCAT of the Australian Journal of Human Rights. Compared with other writers, the author offers a more critical account of both the ratification and implementation-related processes of the OPCAT instrument in Australia.

Contextually, the writer advances an absorbing historical account of the background to OPCAT ratification, beginning as far back as 2002. In doing so, he maps out four different stages in the process, spooling forward to the present day when Australia finds itself grappling with the challenge of putting in place its NPM before the January 2022 deadline.

While much positive has been written about the overall OPCAT consultation process in Australia, not least in these pages, Richard Harding’s more critically pitched eye on the subject matter arrives at an opportune moment in terms of the sizeable task ahead.

challenge ahead
Prison by Ikhaan (2010).

In the article the author sums up the crux of the problem as follows:  

“First and foremost, there must be full commitment to implementing the NPM structure domestically. The journey towards ratification has been marked by ambivalence – as to the basic need for an NPM structure, as to whether existing structures can carry out the role, as to the necessary levels of funding and resources, and as to the extent of federal guidance and commitment through the NPM Coordinator in ensuring that ‘sub-NPMs’ possess ‘functional independence’. Yet, for all that, as the AHRC Interim Report has stated in the Preface: ‘OPCAT has the potential to be the single most positive step in a generation to improve human rights protection of people who are detained’”. (17)

For the author the challenges currently facing engaged human rights actors in ensuring that the OPCAT is implemented effectively in the country are several. After all, what would be the point in ratifying the instrument only to execute it poorly in practice?

Canada, no doubt, will face similar trials and tribulations, especially if it – like Australia – designates a panoply of existing human rights/ombudsperson-type bodies as its NPM, as forecast (rightly or wrongly) on this website. The OPCAT-related challenges which should be met in practice in Australia are outlined in the article, as follows:

  • The designation of monitoring entities in a devolved NPM structure which meet the OPCAT criteria, especially in terms of functional independence;
  • The implementation of the OPCAT progressively without overloading the new structures in a manner which ensures the process is ‘progressive, not static’, particularly in terms of the scope of OPCAT Article 4 coverage;
  • The development of a reliable and realistic criteria of cruel, inhuman and degrading treatment to guide NPM activities;
  • The structuring of civil society into the national-level OPCAT system, more so in view of the prominent and crucial role played by the third sector in achieving ratification;
  • And ensuring adequate funding and resources.
challenge ahead
Prisons by -JvL- (2012).

The advantages of successfully tackling the above challenges are both domestic and international in scope and, according to the author, might assume the form of leadership in relation to the promotion of the OPCAT in the Pacific region, where OPCAT ratification remains relatively low. The author tempers this prospect with the following assertion:

“However, the first task is to create strong structures, standards and values within the Australian federation. In that regard, the 2002-2017 history suggests that some significant attitudinal and political hurdles have yet to be overcome.” (17)

At some point in the future Canada will undoubtedly contend with several of these same issues, which are familiar challenges faced by other states currently putting in place NPMs as well as by NPMs operating in practice.

In an in-depth paper published earlier this year the Canada OPCAT Project examined some of these common challenges which frequently beset NPMs in practice. The paper argued that Canada should overcome these hurdles if it is to institute an efficiently functioning NPM. In this wider context Richard Harding’s detailed and highly useful analysis of the current Australian OPCAT implementation process is a timely reminder of the task ahead here in North America.   

Richard Harding, Australia’s circuitous path towards the ratification of the OPCAT, 2002-2017: the challenges of implementation, Australian Journal of Human Rights 2019, published online 2 May 2019. Readers can obtain a copy via Shibboleth or OpenAthens here.

Several other OPCAT themed articles in the current Special Issue on the OPCAT have been highlighted in these pages, including on the role of civil society vis-à-vis the instrument, monitoring immigration and psychiatric detention, NPM regularity of visits and the operation of New Zealand’s NPM.

Read the current issue of the ICPA’s Network on External Prison Oversight and Human Rights with its Australian OPCAT focus.

Read more about the challenges which frequently beset NPMs in practice.

Posted by mp in Australia, NPMs, OPCAT, Ratification

The OPCAT – A Stuck Record?

Readers of a certain age with fond memories of buying vinyl LPs and 7” singles at Woolworths, HMV or Tower Records will vividly recall the immense annoyance of the phenomenon known as the ‘stuck record’. You will no doubt remember that highly prized The Smiths or Roxy Music record that stuck and repeatedly jumped mid-song, obstinately refusing to budge and play all the way though, without an emphatic prod of the stylus?

In truth, this same vexation of yore is more than just a little bit like the OPCAT ratification process in Canada. Unless, someone in the room applies some heft to the process, the needle is unlikely to move much further forward, if at all.

Therein lies the rub. If not from the Canadian Government, it is difficult to see where this shunt will come from at the domestic level.

After all, just three or so years ago the then Canadian Minister of Foreign Affairs, Stéphane Dion, announced that the OPCAT ‘will no longer be optional for Canada in the future”’.  But what since?

stuck record
Record Player – Robert (2014).

The great paradox, it should be said, is that a wide swathe of the international human rights community believes that Canada should ratify the instrument. It is deemed to be ‘a good thing’. Yet next-to-nothing appears to be happening in practice on the home front to advance the process.

In December 2018 the Canada OPCAT Project met representatives from Global Affairs Canada, the lead government department where the OPCAT file currently sits. The latter reassured this writer that there was movement behind the scenes. Yet without the placement of any such OPCAT related information into the public domain how can we really be certain?

Moreover, despite a pledge made to the UN Committee against Torture in Geneva in November 2018 that domestic civil society and Indigenous communities would be consulted on the domestic ratification process, over the past four-and-a-half months nought has seemingly happened in practice to make good on this assurance.

In contrast to the domestic dragging of feet, international calls on Canada to ratify the OPCAT continue undiminished. Just this past week the UN Special Rapporteur on the rights of persons with disabilities concluded her 11-day April 2019 mission to Canada with a recommendation that Canada should ratify the OPCAT.

stuck record
Catalina Aguilar Devandas, Special Rapporteur on the rights of persons with disabilities – UN Photo / Jean-Marc Ferré

In December 2018 the UN Committee against Torture urged that Canada should complete the process and, in so doing, consult with Canada’s third sector. To date, neither recommendation has apparently been implemented domestically.

Just a couple of months earlier, the Canadian Government itself responded to its May 2018 Universal Periodic Review by stating before the UN Human Rights Council in Geneva that it would consider the ratification of the instrument. During this UPR process some 27 different countries advanced recommendations that Canada should either ratify the OPCAT or consider its ratification.

Finally, upon the conclusion of a mission to Canada in April 2018 the UN Special Rapporteur on violence against women, Dubravka Šimonović, also recommended the ratification of the OPCAT.

All of this in the short space of a year.

Let it also not be forgotten that, as far back ago as 2006, Canada first used the pledge of OPCAT ratification during its candidacy for the UN Human Rights Council, a pledge unfulfilled to the present day, some 13 years later.

So, does the Canadian OPCAT ratification process bring to mind that veritable stuck record in that we are hearing a track that never seems to move forward? Most likely it does.

And quite unlike your favourite Smiths or Roxy Music record of old, the seemingly open-ended OPCAT refrain of the Canadian Government is no longer even remotely interesting or entertaining, some 13 years after it began.

Read more about Canada’s open-ended OPCAT ratification process.

Discover how the OPCAT might be implemented in Canada.

Read why Canada’s Correctional Investigator deems the OPCAT an important human rights instrument for Canada.

Posted by mp in OPCAT, Ratification

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

Enquêteur correctionnel du Canada – Quand le Canada signera-t-il le Protocole facultatif se rapportant à la Convention contre la torture?

Le Bureau de l’enquêteur correctionnel presse le Canada de signer et de ratifier le Protocole facultatif se rapportant à la Convention contre la torture et autres peines ou traitements cruels, inhumains ou dégradants (PFCCT) des Nations Unies (ONU) depuis plusieurs années. Cet instrument international de protection des droits de la personne qui, d’après les dernières données, comptait 88 États parties et 14 États signataires, permettrait la création d’un mécanisme indépendant d’inspections périodiques dans l’ensemble des lieux de détention du Canada.

Signer le PFCCT établirait clairement que les risques d’abus existent dans tous les contextes et dans tous les lieux où des personnes sont privées de leur liberté en sol canadien, y compris dans les établissements psychiatriques, les centres de détention des services d’immigration, les cellules des postes de police, les centres de détention provisoire (avant procès), les centres de détention jeunesse, les prisons provinciales et les pénitenciers fédéraux. Avec l’adhésion au PFCCT, tous les lieux de détention du Canada seraient soumis à une structure indépendante disposant des pouvoirs nécessaires pour y entrer, y procéder à des inspections et discuter avec les détenus en privé dans le but de prévenir les mauvais traitements. Nous devrions observer une volonté pressante de signer le PFCCT, car tout délai additionnel aura des conséquences majeures sur les droits des personnes privées de leur liberté.

Depuis son entrée en vigueur du PFCCT en juin 2006, le Canada a affirmé plusieurs fois son intention d’en devenir un État partie. Il s’est même prévalu de cette promesse pour déposer sa candidature au nouveau Conseil des droits de l’homme de l’ONU cette année. Malgré le changement de gouvernement, la promesse faite par le Canada à la communauté internationale est restée lettre morte. En mai 2016, Stéphane Dion, le ministre des Affaires étrangères de l’époque, déclarait que le Protocole optionnel ne serait pas optionnel pour le  Canada. Or, dans le dernier Examen périodique universel (EPU) du bilan canadien en matière des droits de la personne, en septembre dernier, le Canada affirmait au Conseil des droits de l’homme de l’ONU, , que s’il acceptait la recommandation de l’EPU « d’envisager » la ratification du PFCCT, la décision d’y adhérer n’avait pas encore été prise. Douze ans plus tard, nous ne savons toujours pas si le Canada tiendra sa promesse et, dans l’affirmative, à quel moment.

Le dernier examen du Comité sur la torture de l’ONU révèle qu’il n’existe aucune feuille de route transparente, inclusive et rapide pour la ratification du PFCCT par le Canada, et ce, malgré le fait que Justice Canada ait terminé son analyse juridique des obligations du PFCCT et ses consultations auprès des provinces et territoires sur les conséquences de l’adhésion du pays à cet instrument international. Je suis d’avis que les démarches stratégiques et juridiques nécessaires ne devraient pas retarder l’adhésion du Canada à titre d’État signataire. Même s’il signait le PFCCT, le Canada aurait la possibilité, lors de la ratification, de reporter la mise en œuvre de cet instrument sur son territoire pendant trois années de plus afin d’avoir le temps de se conformer à ses nouvelles obligations, dont la création d’un mécanisme national de prévention (MNP). Signer le PFCCT aurait pour autre avantage de préciser clairement le calendrier de consultation. Il convient de consulter les gouvernements et la société civile, mais ces consultations ne devraient pas se prolonger indûment et servir de prétexte aux retards et à l’inaction. D’autres États dont la représentation et la division des pouvoirs et des responsabilités sont aussi complexes que les nôtres ont déjà ratifié le PFCCT, dont l’Allemagne, le Royaume‑Uni, la Nouvelle‑Zélande et, plus récemment, l’Australie. Le Canada fait figure d’exception en la matière, ce qui sape notre autorité morale et notre capacité d’agir et de condamner la torture dans les pays où elle est encore répandue.

En se pliant aux obligations du PFCCT, le gouvernement fédéral tirerait de nombreux avantages à mettre en place un seul et unique MNP consacré à tous les lieux de détention de compétence fédérale (pénitenciers, centres de détention des services d’immigration, cellules de la GRC, Caserne de détention et prison militaire des Forces canadiennes). Ce MNP présenterait également l’avantage de servir de centre d’expertise et d’assistance nationale pour l’ensemble du pays après la ratification complète du traité par le Canada. Il est important que le MNP soit totalement indépendant du gouvernement et qu’il obtienne les ressources et les mandats nécessaires pour effectuer son travail convenablement.

Ratifier et mettre en œuvre le PFCCT ajouterait une couche supplémentaire de surveillance du fonctionnement du système correctionnel canadien. Dans le cas du système correctionnel fédéral, des inspections pénitentiaires périodiques menées à la fois grâce à un mécanisme national (MNP) et par le Sous-comité sur la prévention de la torture (SPT) de l’ONU – tous deux axés sur la prévention – seraient un excellent complément aux rôles et responsabilités de mon Bureau, dont le travail est principalement alimenté par les plaintes reçues. Les Observations finales du Comité contre la torture de l’ONU, adoptées en décembre 2018, suggèrent que le Canada n’est pas à l’abri de cas individuels ou systémiques de mauvais traitements de détenus, comme en témoignent :

la surreprésentation des Autochtones parmi la population carcérale;

l’examen des cavités corporelles, parfois abusives ou contraires à la dignité humaine;

le manque de capacités, de ressources et d’infrastructures appropriées pour gérer adéquatement les détenus atteints de troubles de santé mentale;

les normes et les conditions de détention inappropriées, y compris en matière d’installations sanitaires, d’hygiène et d’alimentation;

la récurrence de décès évitables en détention;

le recours à l’isolement cellulaire.

Que ce soit en créant une nouvelle instance ou en confiant ses obligations relatives au PFCCT à divers organismes existants, le Canada doit poursuivre le processus de ratification afin d’indiquer clairement qu’il appuie les efforts déployés au pays comme à l’étranger pour protéger les droits et la dignité de toutes les personnes privées de leur liberté, et ce, sans égard à la raison, aux circonstances ou au contexte de leur emprisonnement.

Ivan Zinger, J. D., Ph. D.

Enquêteur correctionnel du Canada.

Cet article a été publié sur Linkedin le 11 janvier 2019.

Correctional Investigator Dr Ivan Zinger

Lire la déclaration de l’enquêteur correctionnel en anglais.

Lire les commentaires de l’enquêteur correctionnel dans son rapport annuel 2017-2018 concernant l’adhésion du Canada à l’OPCAT.

Posted by mp

Canadian Correctional Investigator – When Will Canada Sign the Optional Protocol to the Convention against Torture?

For a number of years, the Office of the Correctional Investigator has urged Canada to sign and ratify the United Nations’ Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT).  This international human rights instrument, which at last count had 88 States Parties and an additional 14 States Signatories, would create an independent mechanism responsible for carrying out periodic inspections of all places of detention in Canada.  

Signing on to the OPCAT would send a clear message that the risk of abuse exists in all contexts and all places where persons are deprived of liberty, inclusive of psychiatric facilities, immigration detention, police lock-ups, remand (pre-trial) and youth custody centres, as well as all provincial jails and federal penitentiaries across the country. With accession, all places of detention in Canada would be brought under an independent structure with specific authorities and powers to access and inspect these facilities and to talk with detained persons in private with the aim of preventing ill-treatment. There should be a sense of urgency to sign the OPCAT as further delays have important human rights implications for individuals deprived of their liberty.

Grills prison
Grilled Prison Window Flickr Creative Commons (2007).

Since coming into force in June 2006, Canada has repeatedly stated its intention to become a party to the OPCAT and even used this pledge to advance its candidacy for membership on the new UN Human Rights Council that year. Even with changes in government, Canada’s pledge to the international community remains unfulfilled. In May 2016, then Minister of Foreign Affairs Stephane Dion declared that the Optional Protocol “will no longer be optional for Canada in the future.” However, in the latest Universal Periodic Review (UPR) of Canada’s international human rights record, Canada reported back to the UN Human Rights Council in September 2018 that, while it accepted the UPR recommendation to “consider” ratification of the OPCAT, “…a decision on Canada’s accession has not yet been determined.” Twelve years later, we are no clearer or certain of whether or when Canada will make good on its promise.

The latest UN Committee against Torture exercise reveals that, while Justice Canada has completed its legal analysis of OPCAT obligations and some consultations on the impact of accession have occurred with the provinces and territories, there is still no transparent, inclusive or expedited roadmap for Canadian ratification of the OPCAT. I am of the view that the necessary legal and policy work should not delay Canada becoming a signatory.  Even after signing, Canada would still have the option, at ratification, to defer domestic implementation of the instrument by up to a maximum of three years to bring domestic practice into compliance with OPCAT obligations, which include establishing a National Preventive Mechanism (NPM).  Signing on to the OPCAT would have the added advantage of keeping the consultative process on a clearly defined timetable.  Government and civil society consultations are necessary, but these do not need to be protracted, and should not serve as an excuse for delays or not doing the right thing. Other states, with equally complex divisions of power, responsibility and representation, have ratified OPCAT, including Germany, United Kingdom, New Zealand, and, most recently, Australia. Canada is an outlier on this issue, which undermines our moral authority to act or condemn torture in places where it is still rife.

Prison by Insunlight (2007).

In meeting the terms of the OPCAT, there are considerable advantages in the federal government establishing a new, single and dedicated NPM for all places of detention under federal authority (penitentiaries, immigration holding centres, RCMP cells, Canadian Forces Service Prison and Detention Barracks).  The designated NPM would have the added benefit of serving as a centre of national expertise and assistance for the rest of the country as Canada moves toward full ratification of the treaty.  It is important that the designated NPM be independent, free from government influence, sufficiently resourced and properly mandated to carry out its work effectively.

Ratification and implementation of the OPCAT would add an additional layer to existing correctional oversight in Canada. In the case of federal corrections, a system of regular penitentiary inspections conducted at the national (NPM) level and internationally by the UN Subcommittee on the Prevention of Torture (SPT), with both bodies focused on prevention, would complement the roles and responsibilities of my Office, which is largely complaint-driven. The Concluding Observations of the UN Committee against Torture, adopted in December 2018, suggest that Canada is not sheltered from cases of individual or systemic ill-treatment of detained persons:

over-representation of Indigenous people in the prison population;

body cavity searches that may be abusive or violate human dignity;

lack of appropriate capacity, resources and infrastructure to manage seriously mentally ill prisoners;

deficiencies in general standards and conditions of detention, including sanitation, hygiene and insufficient food;

preventable deaths in custody; and,

use of solitary confinement. 

Regardless of whether a new or specialized body or combination of existing institutions are designated to meet OPCAT obligations, Canada needs to get on with the ratification process to make it clear that this country supports efforts, at home and abroad, to protect the rights and dignity of all persons deprived of their liberty regardless of cause, circumstance or context.  

Ivan Zinger, J.D., Ph.D.

Ivan Zinger, Correctional Investigator of Canada, published as a Linkedin article, 11 January 2019.

Correctional Investigator Dr Ivan Zinger

Read the Correctional Investigator’s Linkedin article in French.

Read the Correctional Investigator’s Annual Report 2017-2018 comments in support of Canada’s adhesion to the OPCAT.

Posted by mp