Justice Canada

Ministerial Memorandum On Canada’s Future NPM

There exists increasing evidence to suggest that Justice Canada has developed a vision of how Canada might implement the OPCAT.

While in the absence of an official public statement on the issue, one cannot be 100% certain of the shape and form of the future Canadian NPM, as a federal state it is very possible that it will be a multi-body mechanism, comprising existing human rights entities with a focus on detention (please see below).   

Whether such an approach would ensure adequate coverage of all places of deprivation of liberty in the country in a suitably preventive manner, however, would be a matter for future discussion.

Unless there is an unexpected surge in political will to create an entirely new structure as the country’s future NPM, of which there has been, to date, no public indication, a multi-entity NPM structure appears the most probable outcome.

Of the limited information that could be gleaned from Justice Canada’s recent response to a request filed by the Canada OPCAT Project under the Access to Information Act (ATIP), it seems clear that Justice Canada has developed its overall approach to OPCAT implementation and has undertaken limited consultation on this basis (please see below).

As was recently highlighted on this website, a June 2018 ATIP request to obtain a copy of Justice Canada’s legal analysis of accession to the OPCAT resulted in the handing-over of a highly redacted report. Some 240 pages were withheld, while those released were mostly censored.

Ministerial MemorandumNonetheless, among the released 41-pages, a ministerial memorandum was highly significant. The memorandum, prepared by the Human Rights Law Section of Justice Canada and dated 28 March 2018, informed Justice Minister Jody Wilson-Raybould that Justice Canada’s legal analysis of accession to the OPCAT (which was initiated in June 2016) had then been completed.

In the ministerial memorandum it was stated that the Minister of Justice’s signature was required by 18 April 2018 on three letters, which “… wrap up Justice Canada’s leadership role on the file, by summarizing the work done so far and general conclusions on how Canada could implement the OP-CAT.”

One can conclude from this four-page memorandum (two pages of which are illustrated above and below) that Justice Canada appears to have at least one model in mind of how Canada might implement the OPCAT. Unfortunately, no concrete information is detectable from the redacted ATIP response about the exact structure of the country’s potential NPM.

Ministerial Memorandum

Common approaches to the implementation of the OPCAT

As is well known, future OPCAT States Parties have a certain latitude when implementing the instrument in terms of the structure of the NPM, as the OPCAT text does not prescribe any specific organizational form. In practice, however, NPMs generally fall into one of the four following categories:

  • NPMs as a stand-alone specialized structure;
  • NPMs as part of an Ombudsperson’s Office or Human Rights Commission;
  • NPMs as an Ombudsperson’s Office or Human Rights Commission collaborating with civil society actors (the so-called ‘Ombudsperson-plus’ model);
  • Multiple-body NPMs, sometimes found in federal or politically devolved states.

For Canada due to its decentralized, federal political structure options 1 and 4 above seem the most appropriate, of which the most probable is a multi-body NPM structure, unless the Canadian Government is willing to commit significant resources for the creation of an entirely new structure for the purposes of the OPCAT.

Multi-body NPM approaches have been undertaken in various countries, most notably in the Netherlands, New Zealand and the United Kingdom. Federal state Australia is also currently in the process of considering such an approach.

As with any approach to OPCAT implementation, there exists different advantages and disadvantages associated with designating a multi-body mechanism, particularly when involving existing complaints-handling mechanisms with limited track-records in preventive monitoring.

Nonetheless, until the Canadian Government ultimately shares more widely its detailed vision of how the OPCAT might be implemented in the country, Canadian civil society will remain in the dark about this important human rights issue.

 

Ministerial memorandum transcript

What follows below is a transcript of an excerpt from the aforementioned ministerial memorandum (with redactions highlighted in bold). The memorandum also outlines the process of consultation hitherto undertaken by the Human Rights Law Section of Justice Canada, which is itself of note:

As a first step, a discussion paper explaining the legal implications if Canada were to accede was circulated to federal departments and the PTs [provinces and territories] in September 2016 (Annex 1, Attachment A). To raise awareness of the OP-CAT and gather feedback, departmental officials met with colleagues in the affected federal departments and agencies, presented to several FPT tables, and had substantive in-person discussions with PT officials in Iqaluit, Victoria, Fredericton, and Québec …INFORMATION REDACTED… By mid-2017, written feedback had been received from all PTs and affected federal departments, outlining the accountability mechanisms currently in place and providing some initial reactions on accession.

In early November 2017, a policy consultation paper was circulated to the PTs and affected departments and agencies (Annex 1, Attachment B) … REMAINDER OF PARAGRAPH REDACTED.

Canada’s potential accession to the OP-CAT was briefly discussed at the December 2017 meeting of the FPT Ministers Responsible for Human Rights. After a high-level summary of the treaty presented by Global Affairs Canada, all PT representatives stated their support for continued consideration of OP-CAT accession …… REMAINDER OF PARAGRAPH REDACTED.

Departmental officials had initial discussions with some arm’s-length federal bodies – most notably, the Office of the Correctional Investigator (OCI) and the Canadian Human Rights Commission. They also had preliminary discussions with some civil society groups, including Amnesty International Canada, the federal Elizabeth Fry and John Howard organizations, and the Geneva-based Association for the Prevention of Torture. All of these bodies and organizations are strongly in favour of Canada’s accession to the OP-CAT, and have called for timelines to be expedited. Engagement with Indigenous governments and organizations has not yet begun, although preparatory work to identify the scope and purpose of consultation has been done.

Considerations

The legal assessment stage of OP-CAT accession – comparing the obligations of the treaty to Canada’s current legal and institutional framework – has been completed. REMAINDER OF PARAGRAPH AND SUBSEQUENT PARAGRAPH REDACTED.

Recommendation

It is recommended that you sign the three letters in Annexes 1, 2, and 3. These letters will wrap up Justice Canada’s legal assessment of the OP-CAT, …REMAINDER OF SENTENCE REDACTED. The first letter, PART OF SENTENCE REDACTED, contains much of the information about the consultation process and the legal analysis that was provided in this note. The other two letters, which were less detailed, PART OF SENTENCE REDACTED and the Correctional Investigator of Canada.

It should be noted that, of the key Annexes referred to above, Annexes 1 and 2 were entirely suppressed in the response of Justice Canada to the Canada OPCAT Project’s ATIP request. No detailed information was therefore offered in this response regarding the envisaged NPM.

Posted by mp in NPMs, OPCAT

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