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COMMITTEE AGAINST TORTURE BEGINS REVIEW OF REPORTS OF CANADA

04 May 2005

Committee against Torture
4 May 2005


The Committee against Torture this morning began its consideration of the fourth and fifth periodic reports of Canada on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Oonagh Fitzgerald, Acting Chief Legal Counsel, Public Law Sector, Department of Justice Canada, introduced the reports, saying that the Canadian Criminal Code provided a definition of torture that was in accordance with the definition contained in article 1 of the Convention against Torture. Any act falling within the Convention's definition of torture was a criminal offence in Canada.

Ms. Fitzgerald said Canada was committed to international efforts to prevent and eliminate torture. Canada was concerned about torture globally and it was also worried about a number of cases of Canadians or immigrants in Canada who had allegedly been subjected to torture abroad.

Serving as Rapporteur for the reports of Canada was Committee Expert Andreas Mavrommatis who thanked the delegation for the information provided in the reports and in the written responses. He said that Canada should find a way to ensure that article 3 of the Convention was fully complied to with regard to expelling, returning or extraditing a person to another State where there were substantial grounds for believing that he or she would be in danger of being subjected to torture.

Felice Gaer, the Committee Expert serving as Co-Rapporteur for the reports,
also thanked the delegation for the reports and the written responses and said that the reports were exemplary in their presentation and content. She asked if the policies of the Government were in line with article 2 of the Convention, which required that each State party should take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisprudence.

Other Committee Experts raised questions on issues pertaining to, among other things, isolation of young persons for corrective purposes, application of the Convention to members of peacekeeping missions, and detention of individuals suspected of being terrorists. Almost all the Experts appreciated the State party's efforts in combating acts of torture both internally and internationally.

Also representing the delegation of Canada were Representatives of the Department of Justice Canada, the Permanent Mission of Canada to the United Nations Office at Geneva, the Department of Public Safety and Emergency Preparedness Canada, Canadian Border Services Agency, Correctional Services Canada, the Royal Canadian Mounted Police, the Department of Heritage Canada and the Office of the Attorney General of the Province of Ontario.

The delegation will return to the Committee at 4 p.m. on Friday, 6 May, to provide its response to the questions raised this morning.

Canada is among the 139 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.

When the Committee reconvenes at 10 a.m. on Friday, 6 May, it will begin its review of the fourth periodic report of Switzerland (CAT/C/55/Add.9).

Reports of Canada

The fourth and fifth periodic reports of Canada, contained in documents CAT/C/55/Add.8 and CAT/C/55/Add.3, reflect the principal changes in federal, provincial and territorial policies, laws and programmes. The previous reports outlined a series of constitutional and legislative measures directed at preventing torture. Following the terrorist attacks against the United States of 11 September 2001, Canada undertook a comprehensive review of criminal, security and other relevant legislation with a view to addressing the new threat. The review resulted in the Anti-terrorism Act, which contained new provisions with respect to the arrest and detention of persons to prevent terrorist activities, based on existing criminal law powers. Those suspected of involvement in criminal offences are subject to the normal process of investigation and prosecution. The act contains rigorous safeguards to uphold the rights and freedoms of those affected by it.

According to the reports, a new immigration act came into force on 28 June 2002 to fulfil Canada's international obligations, in particular to refugees. The risk of torture is recognized under the new law as one of the grounds for conferring refugee protection. Torture is defined in the act by reference to article 1 of the Convention against Torture. Another new ground leading to refugee protection under the act is the risk to life and the risk of cruel and unusual treatment or punishment. Canada will not remove persons to a country where they risk being tortured. The risk of indirect refoulement to torture is also addressed by the new act.

The Government of Canada takes its international obligations to protect people at risk of persecution, torture and other cruel and unusual treatment or punishment very seriously, the reports note. The Government also has an obligation to maintain the security of Canadian society. The new law on immigration allows for the removal of foreign nationals who constitute a danger to the public or the security of Canada; however, this is to be done only in exceptional circumstances and after the risk to the individual has been carefully balanced against the risk to Canadian society.

Presentation of Report

OONAGH FITZGERALD, Acting Chief Legal Counsel, Public Law Sector, Department of Justice Canada, said the Canadian Criminal Code provided a definition of torture that was in accordance with the definition contained in article 1 of the Convention against Torture. It was no defence to a charge of torture that the accused was ordered by a superior or a public authority to perform an act of torture or that the torture was alleged to have been justified by exceptional circumstances, including a state of war, a threat of war, internal political instability or any other public emergency. Any act falling within the Convention's definition of torture was a criminal offence in Canada.

Ms. Fitzgerald said the Government of Canada did not sanction torture or cruel, inhuman or degrading treatment. If torture did occur, victims had full access to the courts in order to pursue their claims should the need arise and might be entitled to various remedies, including compensation.

Canada had also demonstrated its strong support for combating impunity for acts of torture through the Crimes Against Humanity and War Crimes Act, Ms. Fitzgerald said. The act created offences for crimes against humanity, including torture. It also affirmed that any immunities otherwise existing under Canadian law would not bar extradition to the International Criminal Court or to any international criminal tribunal established by a resolution of the Security Council. The act also allowed for the investigation and prosecution in Canada of subjects who had committed offences outside of Canada, but now lived in Canada.

Ms. Fitzgerald said in addition to being a criminal offence and contrary to government policy, there were a number of stringent mechanisms in place both federally and provincially to guard against torture occurring in places of detention. Those included the courts, human rights commissions, police oversight agencies, and ombudsman offices. In the Canadian federal prison system, for example, there was a Correctional Investigator, independent of the Correction Service, who acted as an ombudsman for detained federal offenders.

An area of concern with regard to the criminal justice system was the over-representation of Aboriginal people within it, she said. More needed to be done to reduce and eliminate the over-representation of Aboriginal men, women and children in detention. Aboriginal alternative justice institutions and mechanisms should also be officially recognized and fostered with the full participation of Aboriginal communities. While some initiatives had met with success, Canada was aware that it still had significant challenges to overcome with regard to Aboriginals in the criminal justice system.

Ms. Fitzgerald said Canada had adopted laws and policies to protect the security of its democracy and the safety of the Canadian people from threats to national security, including acts of terrorism. In 2001, Canada, through Bill C36 on anti-terrorism, amended the Criminal Code, in part creating offences that specifically addressed terrorist activity. It also amended or created several other statutes to allow Canada to combat terrorism more effectively. One of the key principles behind that legislation was that of human security. That included both protecting the values and institutions of democracy and protecting human rights.

The Government of Canada was committed to protecting Canada's security while at the same time preserving the principles of freedom and human rights that were at the core of the beliefs of its society, she said. The Government intended to develop a range of alternatives to immigration removals that were both consistent with domestic and international human rights standards and effective in protecting its collective security.

In conclusion, Ms. Fitzgerald said Canada was committed to international efforts to prevent and eliminate torture. Canada was concerned about torture globally and it was also worried about a number of cases of Canadians or immigrants in Canada who had allegedly been subjected to torture abroad.

Response by Delegation

The delegation responded to a series of written questions prepared by the Committee in advance and sent to the State party beforehand.

Concerning a question on the compatibility of the Immigration and Refugee Protection Act with article 3 of the Convention, the delegation noted the Canada faced difficult choices as it sought to take effective measures against terrorism while respecting human rights law. Traditionally, removals had been an important tool available to the Government in reducing public safety and security risks created by non-Canadians. The act authorized removal to a substantial risk of torture where, following a balancing of state and individual interest, the risk to national security or the security of person was considered to outweigh the risk to the individual. Those provisions applied both to terrorists and to serious criminals. Prior to removal, the foreign national could apply for a pre-removal risk assessment wherein the balancing process would take place.

Asked about cases of refoulement, the delegation affirmed that to date, Canada had not deported anyone to a country where the person was determined to face a substantial risk of torture. There were currently a few cases where it was determined that the risk to the Canadian society outweighed the risk to the person concerned that were pending before the Federal Court of Canada. From 1996 to 2000, four persons were deemed ineligible for a hearing before the Refugee Protection Division, on grounds of security. As well during 2000-2004, two persons were determined ineligible for the same reason.

With regard to the number of criminal and disciplinary proceedings instituted and sanctions imposed, the delegation indicated that 4 charges of torture were laid in 1999-2000; 2 charges in 2001-2002 and 2 charges were laid in 2003-2004. The charges laid in 1999-2000 and in 2001-2002 were stayed or withdrawn. In 2003-2000, one charge was stayed or withdrawn and one charge was pending. No complaints with regard to torture or torture-related conduct were filled against the Royal Canadian Mounted Police, nor were any criminal or disciplinary proceedings imposed since the examination of Canada's last report.

Responding to a question on whether Canada envisaged the ratification of the Optional Protocol to the Convention against Torture, the delegation said Canada had actively participated in the negotiation of the Protocol and had voted in favour of its adoption by the United Nations. Canada supported the fundamental elements of the Optional Protocol regarding the establishment of an international mechanism to conduct visits to places of detention to prevent torture. Domestically, Canada had a number of mechanisms in place to protect persons in places of detention from torture. Consultation and analysis were currently being undertaken to determine whether the existing mechanisms met the requirements of the Protocol.

On the issue of preventing and prohibiting of equipment designed to inflict torture, the delegation said while the Canadian Criminal Code did not contain offences specifically aimed at weapons that were designed for the purposes of torture, there were many criminal offences for acts involving the unauthorized possession, use, trafficking in, or export or import of a "weapon", which was broadly defined as intended for use in causing death or injury to any person. Because Canada considered that its existing criminal offences adequately addressed the public safety objectives behind prohibiting the trade and production of equipment specifically designed to inflict torture, Canada was not currently considering adopting legislation that would prohibit such trade or production.

Questions by Experts

ANDREAS MAVROMMATIS, the Committee Expert serving as Rapporteur for the reports of Canada, welcomed the delegation and thanked it for the reports and the written responses which the State party provided to the Committee.

He said Canada was at the forefront of combating acts of torture globally. Some people said that Canada was more interested in human rights outside Canada than in Canada itself, although he himself did not share this opinion. He asked the delegation for its point of view.

Canada should find a way to ensure that article 3 of the Convention was fully complied to with regard to expelling, returning or extraditing a person to another State where there were substantial grounds for believing that he or she would be in danger of being subjected to torture. The process of balancing between the risk and the national security was not acceptable. Mr. Mavrommatis emphasized the need for full compliance of article 3 in its entirety.

Did the new anti-terrorism act create new immunity, he asked. With regard to the case of Maher Arar, a Canadian who held dual citizenship with Syria and who was stopped while travelling through New York City and deported to Syria, Mr. Mavrommatis said Canada should have intervened to protect the individual from being sent to Syria.

FELICE GAER, the Committee Expert serving as Co-Rapporteur for the reports of Canada, thanked the delegation for the reports and the written responses and said that the reports were exemplary in their presentation and content. She asked if the policies of the Government were in line with article 2 of the Convention, which required that each State party should take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisprudence.

On the question of female inmates, Ms. Gaer said in many countries the number of females incarcerated in prisons was estimated to be about 10 per cent of the whole prison population. The Canadian reports had set the rate of female prisoners at only 2.75 per cent. Could the delegation elaborate on why it was so low?

With regard to detention facilities, the reports had indicated that 75 acts of major violence had taken place in prisons, resulting in deaths, injuries and suicide. What measures had been taken to reduce such incidents?

In the past, the Committee had recommended that the State party establish a separate commission to receive complaints from individual victims of torture, Ms. Gaer said. How many allegations of torture or cruel treatment had been dealt with? She also asked for information on the number of criminal and disciplinary proceedings instituted and sanctions imposed on the complaints of torture or torture-related conduct filed against law enforcement personnel.

Other Committee Experts also raised a series of questions. An Expert said that the issue of isolation of young persons for corrective purposes had been a concern. What was the national policy towards this kind of punishment?

Another Expert expressed his appreciation to the State party for its reports and oral responses. He asked about the position of Canada on the detention of individuals suspected of being terrorists and detained in another territory, and who were allegedly tortured.

An Expert asked the view of the delegation on the applicability of the provisions of the Convention with regard to Canada's members of peacekeeping missions or those participating in armed conflicts? What measures did the Canadian authorities take in the event that a Canadian victim of torture did not receive compensation while he or she was abroad?

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This press release is not an official record and is provided for public information only.

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