Canada

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 additional days (30 + 45) 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 early April 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, 0 comments

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

COPCAT Shorts – Why the ICRC works in prisons?

The Canadian Red Cross monitors places of immigration detention in Canada, including federally-run detention centres and provincial prisons. The organization does so for some of the same reasons as depicted in the above video.

Published by the Canadian Border Services Agency on 14 February 2019, a first report highlighted the findings of Canadian Red Cross monitoring of immigration detention in Canada in the period September 2017 to March 2018. A French version of this key report is also available on the same website.   

According to the Canadian Red Cross, it endeavours to visit detention centres to which it has access four times per year with a view to making an assessment based on Canadian and international standards. During visits to detention centres it focuses on the following aspects:

  • the treatment of detainees (by staff and other detainees);
  • conditions of detention;
  • ability for detainees to contact and maintain contact with family members;
  • and legal safeguards.
Special Issue
Detained abstracts 1 by Greenmonster (2010).

More detailed information about the above approach can be found in a previously published article on this website about the first Canadian Red Cross annual report. Its main components are also highlighted in the featured video clip.

The number of migrants deprived of their liberty in Canada is not at all insignificant. According to the Canada Border Services Agency, in the fiscal year 2017-2018 some 8,355 persons were detained for a total of nearly 120,000 detention days in Canada. Of this number, 6,609 persons were held in one of the country’s three Immigration Holding Centres, while the remainder were detained in provincial and other facilities.

Over the past year the Canada OPCAT Project has published various articles on the detention of migrants in Canada, including on the December 2018 recommendation of the UN Committee against Torture that a permanent oversight structure be instituted in the country. If ever ratified by Canada, any future NPM under the OPCAT would inevitably require unfettered access to all facilities where migrants are deprived of their liberty throughout the country.

Yet with seemingly little progress on the OPCAT ratification front, such an NPM might be long in the coming. Thus, for the here and now the Canadian Red Cross’ monitoring of immigration detention remains a key part of the Canadian detention oversight framework, for some of the reasons very well explained in the above ICRC video.


Read Juan Mendez’s article on the Right to a Healthy Prison Environment.

Learn More about the recently published Global Study on Children Deprived of Liberty.

Find out more about the Joint UN Statement on Child Immigration Detention.

Read an OPCAT Focus on Immigration Detention.

Posted by mp in Children deprived of liberty, ICRC, Immigration detention, Independent detention monitors, OPCAT, Oversight bodies

UN Working Group on Arbitrary Detention to Visit Canada?

The devil, as many a good human rights lawyer will tell you, is often to be found in the detail.

At first blush, the recently published Annual Report of the Working Group on Arbitrary Detention conveys to the reader the exceptionally busy comings-and-goings of a typical under-resourced, over-worked UN special procedure. And to think all this heroic human rights work is done for free.

Yet a deeper dive into the above report, which was presented to the UN Human Rights Council in Geneva on 13 September 2019, reveals that Canada was one of 18 countries which the Working Group requested to visit in the course of 2018. The prospect of such a country visit was floated with the Canadian authorities in a communication dated 11 May 2018.

Barring Freedom by meesh (2012)

So, what happened? When did the Working Group on Arbitrary Detention arrive on our Canadian shores, which detention facilities did it visit, and what were this expert body’s key findings?

After all, Canada has proven to be quite a popular destination for the UN’s special procedures over the past couple of years, with visits undertaken by the UN Special Rapporteurs on the rights of persons with disabilities, violence against women and the right to health, to name just a few.

Alas, paragraph 51 of the Working Group’s 2019 report reveals the following:

On 22 October 2018, the Permanent Mission of Canada stated that the Government is unable to accommodate a visit within the requested time frame, and indicated that it would propose different dates.”

Regrettably, no information is provided in the Working Group’s Annual Report, indicating if Canada has subsequently proposed different dates and/or whether a visit is in the pipeline for late 2019 or 2020.

It was notable that the governments of other countries offered similar apologies in this respect. Guatemala stated that it had other commitments in the area of human rights in 2018, proposing a visit at the end of 2019. The Colombian government stated that, given the electoral period, it would need to identify a more convenient time. Similarly, Indonesia informed the Working Group that it had a number of prior commitments to receive special procedures in 2018 and it would consult the capital on an appropriate time for the visit. Kazakhstan proposed discussing the dates of such a visit at a subsequent time.

Happily, the governments of Australia, Hungary, Qatar and Greece agreed to visits by the Working Group and/or proposed specific dates for such missions to their countries.

Down Under
Light in the Darkness by Drew Douglas (2007).

Regardless, a visit to Canada by the Working Group on Arbitrary Detention would still be opportune. After all, the UN Subcommittee on Prevention of Torture is not going to visit the country anytime soon!

Canadian readers with somewhat more elephantine memories may recall that the expert body previously visited Canada in June 2005. The related report called for change in several different spheres, as follows:

On the basis of its findings, the Working Group makes recommendations to the Government in the areas of the overrepresentation of Aboriginals in the prisons, the excessive use of pretrial detention with regard to accused belonging to vulnerable social groups, and unmet needs for legal aid. As far as detention under immigration law is concerned, the Working Group recommends some changes to law and/or policy. Finally, the Working Group recommends that terrorism suspects be detained in the criminal process, with the attached safeguards, and not under immigration laws.” (page 3)

Unquestionably, several of the above concerns from 2005 still hold true in 2019. For example, Penal Reform International’s flagship report, Global Prison Trends 2019, revealed a fairly damning picture of the continuing high incarceration rates of Indigenous men and women in the country’s prisons, as featured in these pages. The UN Committee against Torture voiced various criticisms less than a year ago during its examination of Canada in Geneva in November 2018, including in relation to immigration detention as well as resort to security certificates.

All of which makes one wonder even more whether an alternative date has as yet been proposed by the Canadian authorities and whether a visit to Canada by the Working Group on Arbitrary Detention can be expected anytime soon?

For the answers to these questions, dear readers, stay tuned to the Canada OPCAT Project.


Read the Report of the Working Group on Arbitrary Detention report to the UN Human Rights Council (UN Doc. A/HRC/42/39, 16 July 2019).

Read the report of the Working Group on Arbitrary Detention’s mission to Canada in 2005 (UN Doc. E/CN.4/2006/7/Add.2, 5 December 2005).

Visit the Working Group on Arbitrary Detention’s homepage.

Posted by mp in Places of detention, UN Special Rapporteur, Working Group on Arbitrary Detention

COPCAT Shorts – Indigenous Canada Featured in Global Prison Trends 2019

“Indigenous peoples are heavily overrepresented in prison populations – particularly in Australia, Canada and New Zealand – and this is a persistent and growing problem, especially for women.” (21)

“Women from Indigenous communities and ethnic minorities face significant disadvantages in the criminal justice system, due to the double discrimination of gender and race – which is usually coupled with poor socio-economic status and education. The rate of criminalisation and imprisonment of Indigenous women is particularly concerning in Canada, Australia and New Zealand.” (20)

“Nearly half of all youth who were in custody in Canada in 2016–17 were Indigenous, despite making up only eight per cent of the youth population.” (24)

Excerpts from Penal Reform International’s Global Prison Trends 2019.

Indigenous Canadians in PRI's report, Global Prison Trends

Global Prison Trends is Penal Reform International’s annual flagship publication series which identifies topical developments and challenges in criminal justice, and prison policy and practice at the global level. 

PRI sets out a raft of key recommendations in the report. These include:

  • States should closely monitor the representation of foreign nationals and people from ethnic and racial minority or Indigenous backgrounds in criminal justice systems. They should review sentencing policies or practices to determine if they are discriminatory, and develop specific measures to meet the rehabilitation and reintegration needs of these prisoners;
  • Countries that have not ratified the Optional Protocol to the Convention against Torture should do so. (42-42)

Global Prison Trends 2019 can be downloaded here in English.

Read the Native Women’s Association of Canada’s (NWAC) policy backgrounder, Indigenous Women in Solitary Confinement.

Explore NWAC’s factsheet on Prison Issues.

The ICPA’s March 2019 newsletter on solitary confinement can be read here.

Examine the ICPA’s focus on independent oversight of prisons in Canada.

Posted by mp in Indigenous people, Prisons, Solitary confinement

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

Academic News & Views: Special Issue on the OPCAT

“OPCAT has the effect of making places of detention more transparent. However, transparency is not, in itself, this treaty’s end goal. OPCAT exists ‘to prevent torture and other cruel, inhuman or degrading treatment or punishment’. In other words, the ratification and implementation of OPCAT must contribute to the eradication of mistreatment in all of Australia’s places of detention. If it does not achieve that aim, it will have failed.”

Foreword to the Special Issue on the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) – Bronwyn Naylor, Edward Santow, Sophie Farthing, Penny Weller & Stan Winford, Australian Journal of Human Rights, 4 April 2019.


If one interchanged the reference to Australia for Canada in the above quotation, the ultimate purpose of the OPCAT as an international torture-prevention instrument would still remain the same.

Yet, as highlighted in a recent article on the implementation on the OPCAT in Australia, the latter has progressed much further in doing so than its Canadian counterpart.

Even so, the current Special Issue on the OPCAT in the brand-new edition of the Australian Journal of Human Rights merits a closer read by both Australians and Canadians alike. Contained therein are various interesting OPCAT insights as well as a number of lessons which might be transposed from the Australian into the Canadian context.

The Foreword to the Special Issue on the OPCAT, from which the above introductory quotation is taken, kicks off with a general overview of the issue and the three main contributing articles comprising the issue.

Special Issue
Australian Journal of Human Rights – copyright of the AHRC Centre at UNSW Sydney.

The first article, penned by Bronwyn Naylor and Stan Winford from RMIT University in Melbourne, is titled ‘Implementing OPCAT through prison monitoring: the relevance of rehabilitation’. The authors argue that the broad scope of the preventive mandate under OPCAT clearly permits the inclusion of rehabilitation and that various NPMs have, to date, included rehabilitation in their OPCAT monitoring activities.

In making this argument, the authors draw references to the rehabilitation-focused monitoring activities of NPMs in France, New Zealand, Norway and the United Kingdom. Her Majesty’s Inspectorate of Prisons in England and Wales is discussed in some detail in this connection, particularly its set of monitoring standards known as ‘Expectations’. The article concludes:

“Ratification of OPCAT requires establishment of comprehensive monitoring frameworks to prevent ‘torture and cruel, inhuman and degrading treatment’ in places of detention. As Australia begins this process, it is important to ask the question: To what extent should monitoring by NPMs address the rehabilitative aspects of imprisonment? We have argued here that it is critical that they do so.” (p. 13)

For Canadian readers perhaps less familiar with the potential rehabilitative scope of the OPCAT at the national level, the contributors advance a strong case for why such an approach should be the case.

Special Issue
Detention by Matt (2009).

The Special Issue on the OPCAT continues with an article by Penelope Weller, also of RMIT University in Melbourne, titled ‘OPCAT monitoring and the Convention on the Rights of Persons with Disabilities’. Like Canada, Australia is a State Party to the UN CRPD and thus obliged to work towards its implementation in practice.

The writer contends that Australia’s preventive monitoring regime under OPCAT must consider and take account of the CRPD and the particular experiences of people with disabilities in places of detention. In this latter connection she writes:

“People with disabilities are more likely than others to live in institutional settings such as social care, disability, health and mental health homes and hospitals. While these places are established to provide care, they are also places where people may be deprived of their liberty and are at risk of experiencing violence, abuse and discrimination. Persistent revelations about incidents in aged care homes and psychiatric facilities confirm the ever-present risk of violence and abuse in such places … People with disabilities are also disproportionately represented in traditional places of detention, such as prisons and police cells, and similarly disproportionately at risk of detention and abuse in such settings.” (p.2)

As a recent investigation into acts of abuse in a healthcare setting in New-Brunswick revealed, the above risk is very real. Moreover, the frequent disregard in practice of fundamental safeguards in such healthcare settings, as highlighted in a March 2019 report of the British Columbia Ombudsperson, potentially heightens such risk. Penelope Weller makes a well-reasoned argument why the scope of OPCAT Article 4 should include a wide array of healthcare settings in Australia, a line of argument which would equally apply to the Canadian context.  

In this same regard the writer also argues that a reading of the OPCAT in light of the CRPD suggests that any deprivation of liberty based on disability-related discrimination, as defined by the Article 14 of the CRPD, may be construed as torture. Moreover, as persons with disabilities may suffer a diversity of abuses in healthcare settings, including seclusion, restraint, involuntary treatment and sexual assault, there exists the need to incorporate such disability awareness into OPCAT monitoring principles, methods and practices.

In a word, as healthcare deprivation of liberty contexts are not the same as prisons or police stations, a different monitoring approach is required under the OPCAT and CRPD, the possible specificities of which the author outlines in some detail. Penelope Weller concludes her unique article by stating: “Infusing OPCAT with the CRPD principles will produce a robust preventive monitoring approach.” Even though the writer’s geographic focus is Australia, the lessons she draws from the CRPD and OPCAT might equally apply to North America.

Special Issue
Centré de détention de Venna by Sara Prestianni (2009).

In the final article in the Special Issue on the OPCAT two very well-known British academics, Rachel Murray and Nick Hardwick, reflect on the question, ‘Regularity of OPCAT visits by NPMs in Europe’.  

The paper examines how NPMs in Europe have interpreted the concept of ‘regular’ visits in the hope that this exercise will be of assistance to those involved in the establishment of Australia’s NPM. Based on a combination of publicly available reports and survey materials, the article is highly interesting.

For Canada the task of ensuring both coverage and regularity of visits by its future NPM over a potentially vast geographic area, some two-and-a-half times larger than the European Union space, will not be insignificant.

The authors note from the outset that the concept of NPM regularity has been under-explored in the published literature on the OPCAT, somewhat surprisingly so it must be said. On the issue of regularity they comment:

“By July 2018, 38 NPMs had been designated in Europe, the largest number in any region. As is seen below, the practice of these NPMs varies considerably, with a number of factors coming into play when one is trying to identify what is regular, and the extent to which, even if one could define regularity, any NPM is fulfilling this requirement.” (p.2.)   

Nonetheless, the authors skilfully dissect the concept of regularity, discussing its definition, the types of NPM visits, and the notion of frequency. They also discuss in detail the different factors determining regularity, including UN Subcommittee on Prevention and other international guidance as well as the NPMs’ own criteria. Unsurprisingly, geography, NPM resources, organizational mandate and the depth and length of visits all impact on regularity to varying degrees. The authors conclude:

“Across the world NPMs have been established at great speed. In Europe alone, in little more than a decade, 38 NPMs have been designated. Every year they are carrying out hundreds of independent preventive visits to places of deprivation of liberty, which in many cases were hidden from scrutiny before. The very speed of their development has meant there is relatively little detailed evidence of how NPMs have gone about their task and ‘what works’. This limits the opportunity for new NPMs, including that in Australia, to draw on the experience of those that have gone before. The paper explored one of the most basic questions facing NPMs: how NPMs understand and apply the requirement to undertake ‘regular’ visits.” (p.20)

Despite such limitations, Rachel Murray and Nick Hardwick offer the Australian/ Canadian reader some very useful general conclusions. In a word, regularity means different things to different organizations and it is not always equated with frequency. As such, the authors recommend that a newly established NPM in Australia (or Canada) might wish to consider how it views regularity.

Special Issue
Detained abstracts 1 by Greenmonster (2010).

In addition, NPMs routinely take into consideration a number of factors when visiting a given facility and not just the frequency or the length of time which has passed since the last visit. Examples of such factors would include: the size of the team; the availability of resources; the overall magnitude of detention facilities to be visited in any given country; the different types of visits (announced or not); and the receipt of complaints as an indicator of potential problems in a given facility. These same factors will unquestionably impact on the work of the future Canadian NPM, as it determines its program of monitoring activities.

In conclusion, the Australian Journal of Human Rights has done an excellent job in compiling some extremely interesting and unquestionably cutting-edge papers on the topic of OPCAT. Even though their focus may lie outside the borders of Canada (Australia and Europe), the issues under discussion (rehabilitation, healthcare settings as deprivation of liberty, and regularity of visits) are as equally relevant in the Canadian context, perhaps more so at a time when more of us could be thinking longer and harder about the potential application of the OPCAT in the country.

Finally, as this short review post barely skims the surface of the three excellent academics articles, readers are warmly encouraged to refer to the full articles for more in-depth information about the very useful ideas advanced in them.  


***Many thanks to Rachel Murray and Steven Caruana for their assistance in relation to this post.

The above articles appear in the current issue of the Australian Journal of Human Rights, published on-line on 4 April 2019. The articles can be accessed via Shibboleth or OpenAthens or can be purchased via this link.

A further article in the OPCAT Special Issue on immigration detention can be read here.

If you have written a recent academic article on the OPCAT, or a related topic, with a potential ‘Canada angle’ and would like an ‘Academic News & Views’ mention, please let us know.

Read earlier ‘Academic News & Views’ posts, including an article by Marie Steinbrecher on NPM independence and effectiveness and by Professor Juan Mendez on a healthy prison environment.

Explore what the UN Special Rapporteur on the rights of persons with disabilities has recently said about deprivation of liberty on the basis of impairment.

Posted by mp in Australia, Implementation process, NPMs, OPCAT, Places of detention

COPCAT Shorts – Domestic Violence: A Veritable Scourge of Inhumanity

“Similar to war, domestic violence is a veritable “scourge” of inhumanity, traumatizing countless children, women and men on a daily basis, and brutalizing human society for generations to come. Contrary to war, however, domestic violence is still largely considered to be a “private matter”, a social taboo to be dealt with at the discretion of the perpetrator in the perceived legal “black hole” of the home. As long as a substantial part of the world’s population is oppressed, abused and even murdered with impunity by their own family members, the promises of the Universal Declaration of Human Rights and the Sustainable Development Goals will remain a far cry from reality. Consequently, though domestic violence may occur in the private sphere, it must be regarded as a global governance matter of inherently public concern.”

UN Special Rapporteur on torture, Domestic Violence and the Prohibition of Torture and Ill-Treatment, 5 April 2019.


Corruption and torture report
Nils Melzer, UN Special Rapporteur on torture, UN Human Rights Council 1 March 2017 (copyright UN Geneva/Jean-Marc Ferre).

The UN Special Rapporteur on torture, Nils Melzer, has opened up a thematic consultation on the phenomenon of domestic violence from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment.

In his upcoming report on this topic to the UN General Assembly, the Special Rapporteur aims:

(1) To apply the substantive elements of the definition of torture to a broad range of practices commonly understood to fall within the notion of domestic violence;

(2) To analyze the legal obligations arising for States under the prohibition of torture with respect to domestic violence;

(3) And to make recommendations with a view to improving the protection against torture in the context of domestic violence.

Canadian human rights actors can contribute to this crucial public consultation by answer three sets of questions. Please help to put domestic violence in Canada in the international spotlight by responding to the UN Special Rapporteur on torture’s open consultation.

The closing date for responses is 15 May 2019.


Read more about the UN Special Rapporteur’s consultation on domestic violence.

Read Professor Melzer’s recent report on combating corruption and torture.

Read his comments from October 2018 on the danger of backsliding on torture.

Posted by mp in Absolute prohibition of torture, UN Special Rapporteur on Torture, UNCAT

Committed to Change – Involuntary Mental Health Detention in B.C.

In a critical new report by the Office of the Ombudsperson of British Columbia a long, dark shadow is cast over the efficacy of fundamental detention safeguards in the province’s mental health institutions.

The March 2019 report, Committed to Change: Protecting the Rights of Involuntary Patients under the Mental Health Act, reveals some unsettling findings regarding the far-reaching extent to which mental health law-related safeguards are ignored in practice by health-care practitioners in the province of British Columbia, as the Infographic below succinctly illustrates.

Committed to Change
Committed to Change Infographic (March 2019)

Patient rights in B.C. are protected through a series of legal procedures which practically take the shape of written forms to be completed on admission. These crucial forms bring to life an array of key detention-related safeguards. Routinely these forms must be completed upon admission of a person to psychiatric detention, demonstrating that the detention criteria has been met, consent to treatment has been obtained, there has been a notification of the patient’s rights, and his or her relatives have been notified. As the Commitment to Change report reveals, these basic rights have frequently been ridden roughshod over in practice.  

The press release accompanying the report quotes B.C. Ombudsperson Jay Chalke as stating:

“Involuntary detention and treatment is the most intrusive form of mental health care available. This is a failure to comply with the Mental Health Act, the law that allows people who are gravely ill – our friends, daughters, sons, parents and grandparents – to receive timely treatment while protecting their legal rights … The state, when it uses such an extraordinary power, has a critically important duty to follow the law. This includes properly completing documentation of what is happening to an individual and why. To not do so is not only unacceptable, it is contrary to law.”

The report’s findings were based on an investigation that reviewed admission records of every involuntary admission in the province that took place in June 2017. In 2016-2017 alone, some 15000 persons were involuntarily admitted to mental health institutions in the province.

A detailed analysis of mandatory admission forms from June 2017 found that across the province, all of the required forms were completed in only 28% of involuntary patient admissions, as the above Infographic illustrates. Key findings include:

  • A number of directors of designated facilities admitted and detained people involuntarily without adequate information and reasons to demonstrate how the patient met the criteria for admission;
  • There was no consent for treatment form in 24% of patient admissions across all health authorities;
  • A number of directors of facilities  permitted the psychiatric treatment of involuntarily detained patients in circumstances where the patient objected to treatment and no Consent for Treatment form was completed;
  • There was no rights advice form for more than half of the involuntary patients. This form advises the patient of their legal rights including how to get legal advice and challenge their detention;
  • The health-care authorities acted unreasonably in failing to adequately monitor, audit and address designated facilities’ compliance with the involuntary admission procedures under the Mental Health Act.

Interested readers may also wish to watch the following short animation, which captures the main findings of the B.C. Ombudsperson’s report.

According to the report, there exists in the province of British Columbia some 77 acute in-patient mental health units and other psychiatric facilities. Canada-wide, the Canada OPCAT Project has calculated at least 234 such facilities (please see chapter 3 of the 2018 report, Instituting An NPM in Canada – Lessons Based on Global OPCAT Practice). The wide-spread disregard of fundamental safeguards in detention in British Colombia is therefore especially worrying in view of the large numbers of such facilities.

In its Executive Summary the report states:

“We were disappointed to find significant levels of non-compliance when we reviewed the forms. In many cases, forms were simply not completed. In many other cases, the forms were completed late or in a manner that did not provide anything close to adequate reasons.” (p.6)

It also underscored the key point:

“Failure to complete these forms is not just a matter of missed paperwork; it is a failure to follow the law. The safeguards in the Mental Health Act protect the inherent rights and dignity of some of the most vulnerable people in our society. When they are not observed, the balance between individual rights and society’s interest in protecting people with mental illness is upset.” (p. 7)

The B.C. Ombudsperson’s Office report makes 24 recommendations, all of which have reportedly been accepted in principle by government and health authorities.

In this same connection it bears noting a recent report of the Special Rapporteur on the rights of persons with disabilities, Catalina Devandas Aguilar. In her 2019 report, which was presented at the 40th session of the UN Human Rights Council on 5 March 2019, the UN Special Rapporteur has questioned the very notion of deprivation of liberty on the basis of impairment. Her reports merits a close reading, as it goes a considerable way in questioning the international legality of this extremely wide-spread practice.

From an oversight perspective, however, the UN expert’s report also stresses:

“National preventive mechanisms, national human rights institutions and independent mechanisms for the promotion, protection and monitoring of the implementation of the Convention must be expressly mandated to carry out inquiries and investigations in relation to the deprivation of liberty of persons with disabilities and provide them with assistance in accessing representation and legal remedies. Disability-specific settings of deprivation of liberty, such as psychiatric facilities and other institutions, must be effectively monitored. Having accurate data on the numbers of persons with disabilities deprived of their liberty will also allow monitoring of the trends and changes over time, thus enabling better preventive and deinstitutionalization strategies.”

If and when Canada ever ratifies the OPCAT, NPMs under the OPCAT will have a key role in monitoring Canada’s in-patient psychiatric facilities.

Under the OPCAT NPMs should regularly monitor psychiatric institutions and social care homes. For example, in England and Wales the Care Quality Commission undertakes this vitally important function, issuing a range of reports on mental health institutions, residential care and nursing homes as well as its flagship annual report on the implementation of the Mental Health Act. Similarly, the Parliamentary Ombudsman of Norway annually visits a significant number of such facilities, some reports of which can be found in English.  The monitoring of such domains is also currently a priority area for the Swiss NPM, the Commission nationale pour le prévention de la torture. There additionally now exist useful practical tools on the monitoring of such detention settings (please see under Other Resources).


Read the full report, Committed to Change: Protecting the Rights of Involuntary Patients under the Mental Health Act.

Browse the accompanying press release.

Examine the related Infographic.

Committed to Change

Read the UN Special Rapporteur on the rights of persons with disabilities 2019 report, Ending Deprivation of Liberty on the Basis of Disability.

Watch the presentation of the 2019 report of the UN Special Rapporteur on the rights of persons with disabilities at the 40th session of the UN Human Rights Council on 5 March 2019.

Study the New-Brunswick Ombud’s 2019 report on the deliberate ill-treatment of mental health patients at a facility in the province.

Posted by mp in Health care, Oversight bodies, Psychiatric detention