ATIP request

Scant Information Revealed About Canadian OPCAT Process

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

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

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

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

ATIP request            ATIP request

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

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

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

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

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

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

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

Posted by mp in OPCAT, Ratification

The Right to Know: Tell Us About OPCAT Please?

Swiftly following on from Canada’s Right to Know Week (24-28 September 2018) the Canada OPCAT Project today lodged a complaint with the Information Commissioner of Canada concerning a ‘deemed refusal’ of information on the part of Justice Canada (the Department of Justice).

As was documented in detail previously on this website, a request was filed on 5 June 2018 under the Access to Information Act (ATIP) for specific information concerning the implementation of the OPCAT in Canada.

Information Commissioner

Followers of this website will also clearly recall that, less than two weeks ago, Canada stated before the UN Human Rights Council in Geneva that it had accepted the core Universal Periodic Review recommendation (made by 27 countries no less) that it consider ratification of the OPCAT.

Thus, it seems especially surprising that no response has been elicited from Justice Canada (positive or negative) concerning a UN instrument which Canada may soon ratify.

 

ATIP Request on OPCAT

To briefly recap, in early June 2018, an ATIP request was filed to obtain a copy of a Justice Canada legal analysis of Canada’s potential accession to the OPCAT. The document was referred to in Department of Justice correspondence also obtained through an ATIP request earlier in the year. Several weeks later, on 28 June 2018, Justice Canada responded to this second ATIP request, stating that it required a 60-day extension to comply with the application.

As this 60-day extension has long since past, a complaint of ‘deemed refusal’ was lodged on 1 October 2018 with the Information Commissioner of Canada.

According to the 2017-2018 Annual Report of the Information Commissioner, Justice Canada was the subject of 61 new complaints during this same period (please see page 26 of the report). Even though the institution is less frequently a source of complaints for members of the public (as compared with other Canadian government departments and agencies), it nevertheless remains frustrating that a formal complaint has been deemed necessary in this particular instance. Even so, the Canada OPCAT Project is hopeful that a response will be forthcoming from Justice Canada in the near future.

For Canadian readers who would like a quick primer on why the right to information is so important, Canadian Information Commissioner Caroline Maynard is here to tell you why (in English and French):

Information Commissioner complaint

Canadian Information Commissioner Caroline Maynard presents Right to Know Week 2018

Posted by mp in OPCAT, Ratification

ATIP OPCAT Request – Time’s Up!

The time is officially up for Justice Canada! Regrettably, the Canada OPCAT Project has yet to obtain a response from the Department of Justice concerning an OPCAT-related request under the Access to Information Act, known as a so-called ATIP request.   

On 5 June 2018 the Canada OPCAT Project made the ATIP request to obtain a copy of a Justice Canada legal analysis of Canada’s potential accession to the OPCAT. The document was referred to in Department of Justice correspondence also obtained through an ATIP request.

ATIP RequestSeveral weeks later on 28 June 2018 the Department of Justice responded to this initial ATIP request, stating the following:

“Pursuant to paragraph 9(1)(b) of the Access to Information Act, I hereby notify you that an additional 60 days are required to comply with your request because consultations that cannot be reasonably completed within the original time limit are necessary. It may be possible, however, to reply sooner should we complete the processing of your request prior to that time.”   

As this request for information relates to Canada’s publicly stated intention to ratify a key UN human rights instrument (hardly a sensitive issue), this failure to respond within the stipulated time-frame comes as even more surprising.

Nonetheless, with the annual holiday season soon coming to an end, it is very much hoped that a response will be elicited from Justice Canada and that its OPCAT legal analysis will be made available to the project.

Although the Canada OPCAT Project has yet to see a copy of the legal analysis, it is reported to highlight, among other issues, concerns about gaps in the coverage of places of detention by existing independent monitoring bodies. Police and immigration detention facilities are said to be particularly problematic in this respect. Until the report is made available, however, this information cannot be confirmed.

Posted by mp in OPCAT, Ratification