#RatifyOPCAT

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 days (the initial 30 + 45 additional days) 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 mid-March 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

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

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!

***

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