#CAT65

The UNCAT 65th Session: Important OPCAT Lessons for Canada

The UN Committee against Torture reached a remarkable milestone in its lifetime earlier this month, having successfully completed its 65th session, some 34 years after the adoption of the UN Convention. Nonetheless, it was business as usual for this body of international experts, who had another tranche of states to review in Geneva from 12 November to 7 December.

Canada numbered one of the six countries whose periodic reports were examined by the UN Committee, the others being Guatemala, Maldives, Netherlands, Peru and Viet Nam. Over the past week or two the outcome of this review of Canada has been explored in some detail on this website.

In particular, UN Committee key recommendations have been discussed in relation to the need for independent oversight of immigration detention as well as psychiatric care settings, and the urgency for Canada to push ahead with the ratification of the OPCAT. In this latter connection it will be recalled that the UN Committee urged Canada to:

“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”

Unfortunately, to date, the process of consultation has mainly sought the opinions of the different provincial and territorial governments and not those of civil society and the country’s many Indigenous groups.

UNCAT 65th session Canada Probed
Palais Wilson – Office of the United Nations High Commissioner for Human Rights in Geneva by UN Photo/Jean-Marc Ferre

Surprisingly, among the six countries examined by the UN Committee during the 65th session, only Canada and Viet Nam have yet to ratify the instrument – not a human rights comparison usually made between these two countries. Similar to Canada, the UN Committee called on Viet Nam to consider acceding to the OPCAT as well as, in the interim, to establish a national mechanism that independently, effectively and regularly monitors and inspects all places of detention in the country without prior notice (see §34-35).

Even though Canada has yet to ratify the instrument, certain of the OPCAT-related outputs of the other country reviews have possible direct relevance in the Canadian context, particularly at a moment when the country is considering how it might implement the instrument.

UNCAT 65th session concerns vis-à-vis the OPCAT

During the 65th session the UN Committee advanced recommendations in relation to all four countries under review which are States Parties to the OPCAT. As will be revealed, certain common concerns arose repeatedly.

The UN Committee’s concerns about the Guatemalan NPM were far-reaching and related primarily to the election process of the different members of the National Office for the Prevention of Torture and its general ineffective operation and performance in practice. However, other serious concerns existed, including the NPM’s alleged use as a tool to pressurize anti-corruption judges and the limited involvement of civil society in the NPM’s activities (§14). A whole raft of recommendations were directed at Guatemala in order to address such extensive concerns (§15).

The UN Committee’s concerns about the Netherlands’ NPM were also relatively sweeping, several of which had previously been voiced by other key UN human rights actors, most notably the UN Subcommittee on Prevention of Torture (SPT) during a 2015 visit to the Netherlands.

As in a small number of other states, the Dutch NPM is a multi-body mechanism, comprising four monitoring bodies. These include: its coordinating body, the Inspectorate of Security and Justice; Health Care Inspectorate; Inspectorate for Youth Care; and the Administration of Criminal Justice and Protection of Juveniles. In 2015 the SPT regretted that the four NPM bodies had not been allocated additional financial and human resources to take on the NPM mandate and adequately fulfil its related functions (§46). It also found the almost complete absence of an independent legal basis for the NPM’s activities had marred the operation of the Dutch NPM (§14-15).

During its 65th session the UN Committee echoed these sentiments, stating that it was concerned “… about consistent reports on the NPM’s lack of both resources and independence.” (§22) The Committee urged the country to address these and other shortcomings (§23).

UNCAT 65th session
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An absence of resources and autonomy also arose in relation to Peru, where the Ombudsman was belatedly designated as the country’s NPM. It noted:

“…the Committee regrets that the national preventive mechanism does not enjoy the functional autonomy required for the normal exercise of its functions, nor does it still have the human, material and technical resources necessary for its proper functioning (Article 2).” (§14)

The country was urged to address such shortcomings (§15).

Regrettably, a shortfall in resources commonly afflicts national torture prevention bodies. In relation to the Maldives it was significant that the UN Committee also commented negatively on the financial base of the country’s NPM, the Human Rights Commission of the Maldives. In so doing, it stated that the Maldives should provide it with additional financial resources “… in order to enable it to carry out more visits and better fulfil its functions as National Preventive Mechanism, including the function of conducting unannounced visits to all places of deprivation of liberty”. (§38a)

It is an incontrovertible reality that a significant number of NPMs struggle to operate effectively with the financial, human and material resources made available to them. Even NPMs located in the stronger economies of Western and Northern Europe have been found to be poorly resourced.

For Canada the challenge of securing adequate resources for its future NPM will be significant. Irrespective of whether existing human rights institutions are re-purposed as NPMs or whether new entities are established, the task of effectively implementing the OPCAT at the national level will require a significant government commitment of resources. It therefore remains important for Canada to draw on the above lessons and to ensure that its future NPM has the resources to effectively tackle the task at hand.


Read the Concluding observations on Canada’s seventh periodic report.

Read OMCT’s E-Bulletin from November-December 2018 on the 65th session of the Committee against Torture in English.

Posted by mp in OPCAT, UNCAT

COPCAT Shorts: Open Up OPCAT Process – UN Committee against Torture

Open UpThe Committee appreciates the information provided by the delegation regarding the consultations held with territorial and provincial Governments and within the federal Government in the framework of the review process of the potential accession of Canada to the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It also welcomes the assurances of the delegation that civil society and Indigenous groups will be consulted as soon the federal, provincial and territorial government consultations are finished, but remains concerned that no fixed time frame was specified for the completion of the overall process (arts. 2, 11 and 16).

The State Party should:

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.

UN Committee against Torture, Concluding observations on Canada’s 7th periodic report, issued 7 December 2018 (§20-21).

 

See the full Concluding observations on Canada in English.

Read an overview of the UNCAT session on Canada.

Learn more about the UNCAT’s focus on the OPCAT during the session.

Examine again Canada’s publicly stated commitment to future transparency on the OPCAT process.

In the coming days the Canada OPCAT Project will present a more in-depth analysis of Canada’s overall examination by the UN Committee against Torture and possible next steps in relation to the OPCAT.

Posted by mp

Canada: Greater OPCAT Transparency, No Time-Frame Commitment

Canada has publicly committed to ensuring greater transparency of its consultation process to consider ratification of the OPCAT. It declined, however, to provide a fixed time-frame for the completion of the overall process.

During today’s exchange with the UN Committee against Torture in Geneva, Global Affairs Canada formally acknowledged civil society’s concerns about the lack of transparency of the OPCAT consultation process, the latest phase of which was initiated in September 2016.

Greater transparency

Palais Wilson, Geneva by UN Photo/Jean-Marc Ferré.

The Deputy Director of Global Affairs Canada’s Human Rights & Indigenous Affairs Policy Division, Stéphanie Bachand, publicly stated that her agency was henceforth committed to a transparent process. Civil society and Indigenous groups would be consulted, it was observed, as soon as the federal, provincial and territorial government consultation process had been completed.

Regrettably, so far there has been only very limited OPCAT consultation in Canada with civil society, as underscored in the declassified pages of an April 2018 ministerial memorandum. It can therefore only be hoped that government OPCAT deliberations have not progressed so far as to render civil society input on this crucial issue tokenistic.

Nonetheless, during the Canadian delegation’s interventions today in Geneva detailed information was helpfully provided about the steps thus far taken in the context of the OPCAT consultation process. It was noted by Global Affairs’ Stéphanie Bachand that “a great deal of progress had been made, but more was to be done.”

When asked by the UN Committee’s Co-rapporteur on Canada, Bakhtiyar Tuzmukhamedov, for a reasonably detailed time-frame for the conclusion of the overall OPCAT consultation process, Global Affairs Canada declined to commit to a specific date. Conversely, Stéphanie Bachand underpinned the complicated nature of the OPCAT ratification process for Canada as a federal state.

Transparency of OPCAT

Representatives of Justice Canada & Global Affairs Canada in Geneva, the latter leading on the OPCAT in Canada.

Regrettably, Canada’s federal political structure has been cited as the standard refrain in government circles for the difficulties in making OPCAT-related progress over the years.

Even so, Canada should henceforth use this week’s exchange with the UN Committee against Torture as a reason to push quickly ahead with the process and, in so doing, liaise closely with Canadian civil society and Indigenous groups.

Quite simply, Canada should not wait until the 2022 review of its eighth periodic report under the UN Convention to ratify the OPCAT, as that time is now.

The UN Committee against Torture’s Concluding observations on Canada will be published before the close of its 65th session on 7 December 2018.

Readers who wish to watch this week’s UN Committee’s examination of Canada can do so on demand at UN Web TV.

Posted by mp in OPCAT, Ratification

Deep Probe Of Canada’s OPCAT Intentions At UN

Canada’s human rights track-record to prevent acts of state and non-state abuse was deeply probed earlier today, when it reported to the UN Committee against Torture in Geneva, Switzerland.

Among the many issues discussed, the matter of Canada’s long-awaited, if not long overdue ratification of the OPCAT arose during the morning’s deliberations.

A busy meeting room at Palais Wilson, headquarters for OHCHR in Geneva, saw a 14-person Canadian delegation present its 7th periodic report to the UN Committee against Torture. In anticipation of this United Nations review some 13 civil society entities had submitted shadow-report information to the UN body of experts (available here).

Canada Probed

Palais Wilson – Office of the United Nations High Commissioner for Human Rights in Geneva by UN Photo/Jean-Marc Ferré.

During Canada’s opening 20-minute presentation Laurie Wright, Senior Assistant Deputy Minister of Justice Canada and Head of Delegation, stated that regarding the OPCAT “significant progress has been made and Canada continues to take the process seriously.”

 

She underscored the “extensive consultations” which had thus far taken place in Canada and noted Justice Canada’s legal analysis of possible accession to the instrument, including the identification of potential implementation gaps through the analysis of existing oversight bodies. Significantly, however, no fixed time-line for the process of domestic consultation was mentioned, nor was reference made to consultation with civil society.

Somewhat surprisingly, only one of the 10-member UN Committee probed Canada’s intentions to ratify the OPCAT, a task which fell to Co-rapporteur Bakhtiyar Tuzmukhamedov. The latter explored this matter with great diligence and in considerable detail.

The Russian representative drew attention to the fact that Canada had first stated it would ratify the OPCAT as long ago as 2006 and in 2012 the UN Committee against Torture had urged Canada to accelerate the domestic consultation process. He also observed that, more recently, Canada had stated it was considering the possible ratification of the instrument and a final decision had not been made in this regard, seemingly reflecting a weakening of language in relation to the OPCAT.

Canada probed at UN

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The UN expert therefore inquired about the nature and content of Canada’s OPCAT consultation process, the impediments which exist preventing ratification, and whether civil society and Indigenous groups had been involved in the process? He also posed the highly relevant question of how Canada was interpreting the scope of deprivation of liberty and whether social care and educational settings were being considered?

Concern was also expressed about the absence of oversight over specific detention domains, namely psychiatric care and immigration detention. In this same connection the Co-rapporteur queried Canada’s reluctance to provide for permanent arms-length oversight over immigration detention, despite the existence of an agreement with the Canadian Red Cross to monitor the country’s three Immigration Holding Centres as well as some provincial prisons. He therefore asked for information about the modalities of the Canadian Red Cross’ monitoring of immigration detention and any related reports.

Limitations to the powers of existing oversight bodies were also identified, including the Office of the Correctional Investigator. The representative also sought information about the composition of OCI delegations when visiting prison settings and whether medical professionals were included in such delegations?

Many other pressing issues were discussed during the morning’s exchange, to all of which the Canadian delegation has the opportunity to reply in the afternoon of 22 November. For Canadian human rights observers the UN Committee’s examination of Canada can be followed live at 9 am ET on UN Web TV.

Today’s session will also be available later in the day to watch on demand in both English and French.

The Canada OPCAT Project will continue to publish updates about Canada’s examination by the UN Committee against Torture, so please return tomorrow for further information. Alternatively, you can receive live updates on Twitter. See you soon!

Posted by mp in OPCAT, Ratification, UNCAT

Critical Moment For Canada During UN Review

At a critical moment when Canada’s human rights record will be laid bare before the UN Committee against Torture in Geneva, it is high time for the country to finally put words into action and to ratify the OPCAT.

For over 12 years Canada has repeatedly garnered international praise for stating it would consider ratifying the instrument, but doing precious little in practice during this time to make this intention a human rights reality.

In the meantime scores of other countries have done so, and successfully put in place National Preventive Mechanisms.

Far too often Canada’s federal structure has been used as an excuse for inaction vis-a-vis OPCAT ratification. Yet political structure has not prevented other federal states from doing so, including Argentina, Australia, Austria, Brazil, Germany, Mexico and Switzerland.

Critical moment UNCATDuring the reviews of Canada by the UN Committee against Torture in 2005 and 2012 the country was twice called on to consider ratification of the OPCAT. In 2012 the UN Committee urged Canada “… to accelerate the current domestic discussions and to ratify (the OPCAT) as soon as possible.”

Six years on, there is no clear sign that OPCAT ratification is on the near horizon.

For this week’s UN Committee examination of Canada, 13 civil society entities have submitted shadow-reports for the consideration of this expert body (all shadow-reports can be read here). Of these submissions, six civil society actors have advanced information on the OPCAT, making key recommendations (please see the examples below).

This time around, Canada needs to use this critical moment to reflect on these key recommendations and to make good on its repeatedly verbalized intention to consider OPCAT ratification.

UN Web TV will broadcast the UN Committee’s examination of Canada live on 21-22 November. Interested persons can tune-in in real time at 4 am ET on 21 November and 9 am ET on 22 November. Alternatively, readers can watch audio-visual recordings of the process on demand afterwards.

The Canada OPCAT Project will issue updates on the UN review process as the week unfolds. Please watch this space!

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The Canada OPCAT Project’s shadow-report can be read here.

Critical moment for CanadaAmnesty International’s recommendation to Canada: “Reconfirm that Canada intends to accede to the Optional Protocol to the Convention against Torture, provide a public report on the progress of consultations with provincial and territorial governments, and seek to accelerate those consultations towards a successful outcome.”

 

Critical moment for Canada

The Canadian Human Rights Commission has urged: “That Canada ratify the OPCAT and ensure that it provides the NPM with an appropriate legislative mandate and adequate resources to effectively carry out its work.”

 

 

 

Critical moment for Canada

L’ACAT Canada et la FIACAT invitent le Comité contre la torture à recommander au Canada, en partenariat avec les gouvernements des provinces et des territoires, de : (1) Respecter sa promesse de ratifier, dans les plus brefs délais, le Protocole facultatif à la Convention contre la torture (OPCAT); (2) Assurer la mise en place à tous les niveaux de mécanismes de suivi et de contrôle de tous les lieux privatifs de liberté en conformité avec l’ensemble des exigences définies par l’OPCAT et mettre en place un processus public de suivi de la mise en œuvre des recommandations de ces instances.”

Critical moment for Canada

ICLMG’s shadow-report: “We recommend that CAT urge Canada, once again, to ratify the Optional Protocol as soon as possible.”

 

Critical moment for CanadaThe APT’s shadow-report has called on the Canadian authorities to: “Accelerate the current consultation process with all relevant stakeholders on the implications of OPCAT ratification. Based on those consultations, ratify the OPCAT and designate or establish one or several NPMs, ensuring that those mechanisms are independent and granted with the legal mandate and necessary financial and human resources to effectively carry out their work, in accordance with the OPCAT.”

Posted by mp in OPCAT, Ratification, UNCAT