Committee against Torture considers report of Canada

21 May 2012

The Committee against Torture this morning began its consideration of the sixth periodic report of Canada on how it implements the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Introducing the report, Alan Kessel, Legal Advisor, Department of Foreign Affairs and International Trade of Canada, said 2012 marked the twenty-fifth anniversary of Canada’s ratification of the Convention which was implemented domestically through the Constitution, the Bill of Rights, the Criminal Code, the Immigration and Refugee Protection Act and the Extradition Act. Canada was committed to the safe, secure and humane custody of its detained persons, to not being a safe haven for persons involved in war crimes, genocide or crimes against humanity, and to the global effort to strengthen accountability for crimes of torture as demonstrated through recent prosecutions of persons accused of committing genocide and crimes against humanity in Rwanda. Canada’s asylum-system was world-renowned for its high standard of fairness and generosity and by 2013 Canada would welcome 14,500 refugees through its resettlement programme, accounting for one in ten refugees resettled worldwide.

Alessio Bruni, Committee Expert serving as Rapporteur for the report of Canada, asked whether Canada planned to ratify the Optional Protocol to the Convention against Torture, as it pledged to do in 2006 and 2009 at the Human Rights Council. Mr. Bruni asked about the detention of criminals who could not be deported because they were in danger of being tortured in their destination country, and the ‘exceptional circumstances’ that did allow deportation in cases that threatened national security.

Essadia Belmir, Committee Expert serving as Co-Rapporteur for the report of Canada, said Canada was very well-known for its defence of human rights, but unfortunately nobody was perfect and as a result there were some questions to be asked. She raised issues concerning the training of police officers, the use of Taser guns, and the case of a Canadian sent to Syria for questioning who was then tortured.

Committee Experts asked about prison conditions, overcrowding and deaths in custody, the use of solitary confinement in prisons, redress for victims of torture,the use of ‘reasonable force’ against children, and murders and disappearances of indigenous women.

In an initial response, Mr. Kessel said his delegation hoped to leave the Committee tomorrow with a greater sense of Canada’s commitment to a Convention it had worked on many years ago and was keen to implement not only domestically but around the world.

The delegation of Canada consisted of representatives from the Department of Foreign Affairs and International Trade, Department of Public Safety, Department of Justice, Human Rights Department at the Ministry of International Relations of the Government of Quebec, and the Permanent Mission of Canada to United Nations Office at Geneva.

The Committee’s next public meeting will be at 10 a.m. on Tuesday, 22 May, when it begins consideration of the report of Cuba. The replies of Canada will be heard at 3 p.m. on the same day.

Report

The sixth periodic report of Canada can be read here: (CAT/C/CAN/6).

Presentation of the Report

ALAN KESSEL, Legal Advisor, Department of Foreign Affairs and International Trade of Canada, said 2012 marked the twenty-fifth anniversary of Canada’s ratification of the Convention against Torture. The Convention was implemented domestically through various means, notably the Constitution, the Bill of Rights, the Criminal Code, the Immigration and Refugee Protection Act and the Extradition Act. Canada was committed to the safe, secure and humane custody of its detained persons. Its national standards for federal correction programmes met and often exceeded internationally-accepted minimums and Canada was considered a world leader in the field. Canada was committed to not being a safe haven for persons involved in war crimes, genocide or crimes against humanity, and to contributing to the global effort to strengthen accountability for crimes of torture. That commitment was demonstrated through recent prosecutions of persons accused of committing genocide and crimes against humanity in Rwanda. Canada believed that wherever possible people accused of such terrible crimes should face justice in the countries in which the crimes occurred. In the area of national security Canada was proud of its record in combating terrorism while respecting fundamental human rights standards, as seen through the Anti-Terrorism Act, which was not emergency legislation and did not derogate in any way the Convention against Torture. Comprehensive training was provided for law enforcement personnel, while review bodies existed to ensure police officers conducted themselves appropriately.

Internationally, the Government took its commitments to protect people at risk of persecution, including displaced populations, very seriously, and Canada was outspoken in its denunciation of regimes which violated the fundamental freedoms of their people and engaged in torture. The asylum-system was world-renowned for its high standard of fairness and generosity, but was currently challenged by long waiting times, a backlog and a complex post-claim process. Those challenges were being addressed by the Balanced Refugee Reform Act, while Canada committed to increase the number of resettled refugees by 2,500 persons; by 2013 Canada would welcome 14,500 refugees through its resettlement programme, accounting for one in ten refugees resettled worldwide. The goal was a fair and efficient asylum system which protected those in need, discouraged abuse of the system by illegal immigrants and economic migrants pretending to be refugees, and upheld Canada’s long humanitarian tradition. Legislation had been passed to address human smuggling, and immigration officials were trained on identifying cases. Forthcoming legislative changes to Canada’s asylum system and anti-people smuggling efforts would ensure the principle of non-refoulement.

Canada was a consistently reliable participant in, and generous contributor to, the United Nations system, was actively involved in the treaty body strengthening process and took its reporting obligations to treaty bodies seriously. Canada was a party to seven principal international human rights treaties which required the preparation of a substantial number of reports and reviews, in addition to Universal Period Review work, which amounted to a significant burden on resources. Canada encouraged the Committee to modernise the reporting process, including conducting video-conferences in lieu of costly in-person delegations. Independently, Canada had already begun to decrease the size of its delegations to the bare minimum needed to respond effectively. There was a problem of coordination and duplication that every State party to multiple treaties faced in terms of its reporting burden: it was unreasonable to expect a country to respond effectively and efficiently to questions from multiple bodies at once. Canada observed that the Committee had asked questions about issues that fell more squarely within other bodies’ mandates, such as issues relating to violence against women and trafficking in persons, and urged the Committee to focus on its core mandates.

Statement by Committee Chairperson

XUEXIAN WANG, Committee Vice-Chairperson, noted the State party’s criticism and suggestions regarding the work of the Committee, and said they were open to such comments, as there were problems with the working methods of the Committee. The Chairperson thanked the State party for its valuable comments and criticism, and said they would be taken into consideration in coordination with other treaty bodies.

Questions from Rapporteurs on Canada

ALESSIO BRUNI, Committee Expert serving as Rapporteur for the Report of Canada, regretted that the State party’s replies to the written questions (amounting to a 90-page document) were considerably delayed, and only received last Thursday. That delay was an obstacle to the preparation of the dialogue and put in danger the reporting process. Did Canada plan to ratify the Optional Protocol to the Convention against Torture, since it made that pledge in 2006 when it was lobbying to be voted onto the Human Rights Council, and again in 2009 during its Universal Period Review? The report referred to the Security Certification Process, a mechanism by which the Government could detain and deport foreign nationals and other citizens living in Canada who were suspected of being a threat to national security. Since 2007 subjects to that process were guaranteed a minimum of legal assistance. Certain individuals who had been declared a threat to the national security of Canada could not be deported because they were in danger of being tortured in their destination country. Therefore those persons were detained indefinitely. As a matter of urgency a final decision needed to be found for those persons. Three individuals were currently in that situation after already being detained for up to ten years. Could all charges against them be made clear, and not just in a superficial summary?

The vast majority of in-custody deaths were due to high risk lifestyles, such as drug abuse, which suggested that high-risk lifestyles conducive to death continued to be tolerated in custody. What were the rates of death in custody over the last three years? The majority of Canadian prisons were old (five were built between 1835 and 1900) and had inadequate infrastructure for prisoners, in particular those who had mental illness. The use of solitary confinement was another subject of concern, as the report said prisoners could be held alone for up to 30 days, in spite of the fact that medical experts agreed that after 15 days the harmful effects of segregation could be irreversible. Administrative segregation for prisoners known to be extremely dangerous was also applied to prisoners who had serious mental difficulties. What about alternatives to segregation?

Updates on measures to prevent expulsion of persons in danger of being tortured in the country of destination had been provided, but the Rapporteur questioned the law that allowed dangerous criminals who represented a threat to the security of Canada – ‘exceptional circumstances’ – to be expelled or extradited even if they faced a risk of being tortured upon removal. No crime justified that under the Convention; even the worst criminal had the right to be protected against torture. It could be argued that trials were costly and it was cheaper and easier to export the criminal, but that was not a good solution. Diplomatic assurances were not adequate as they were not legally binding.

The Rapporteur raised measures to prosecute persons alleged to have committed crimes of torture, citing the example of Désiré Munyaneza, who had been accused of war crimes, genocide and crimes against humanity in Rwanda, and was sentenced to life imprisonment in Canada in October 2009. However, in January 2012 another Rwandan national, Leon Mugesera, was extradited to face trial in Rwanda for very similar war crimes and crimes against humanity. Why was prosecution in Canada chosen in the first case, but in the second case extradition was chosen, for similar crimes against humanity committed against the same country, and subject to the same criminal investigations. In that respect non-governmental organizations reported that in 2011 a list of 30 individuals described as suspected war criminals was published, so that they could be tracked down and deported. Could the delegation say more about that list? Deportation could have as a consequence not only the risk of torture for the individual on their return, but also the possibility of impunity for the individual once they had left Canada.

The Rapporteur raised an internationally well-known case, the Canadian citizen Mr. Omar Khadr who was detained for eight years in Guantanamo Bay detention camp, then in October 2010 was sentenced by the Guantanamo Military Commission to an additional eight years for war crimes and terrorism. Since October 2011 Mr. Khadr had been eligible for deportation to a Canadian prison, but today was still being held in solitary confinement in Guantanamo. Some sources reported that his sentence was based on a confession obtained through torture: what were the delegation’s views? The Rapporteur also asked for an update on prison reform in Quebec. He noted that between 2004 and 2007 nearly 40,000 persons were admitted to prison in Quebec, which seemed a high number given the population of the province which was eight million, and asked why. A new women’s prison in Headingly in the province of Manitoba, had been due for completion by 2009: was it now complete and functioning? With regard to British Columbia it was stated that audio and visual equipment had been installed in police stations to avoid ill-treatment there. Had those measures led to a positive result?

ESSADIA BELMIR, Committee Expert serving as Co-Rapporteur for the Report of Canada, said that Canada was very well-known for its defence of human rights, but unfortunately nobody was perfect and as a result there were some questions to be asked. The police force’s code of ethics was admirable, but how did the State party ensure that instead of just training police officials in theories instruction was given on the use of force? It seemed judges received a lower level of human rights training than the public prosecutors office, although judges actually applied human rights law in courts. The Rapporteur turned to the use of Taser guns by officials, which the Committee believed should not be used as they could cause serious bodily injury and wounds and could be lethal. Taser guns were dangerous weapons which could kill people, as seen in other countries. The Charter set out that Canada did not have jurisdiction in territories outside of its control, but the Rapporteur raised the case of Canadian national Maher Arar, who was deported by officials to Syria for questioning, and tortured there for a year. What measures had been taken to prevent officials from alleged complicity in abuse in non-Canadian territories? On a separate issue, Canada had a concept that ‘reasonable force’ could be used against children, but was not defined. When was the use of force against children considered reasonable, and how much force was permitted?

Questions from the Experts

Statistics suggested that overcrowding in prisons had gotten worse. The State party said that was acceptable because the rate was more or less the same, even if the number of inmate injuries had increased over the last ten years. What were the reasons for that increased number of incidents and were officials trained on preventive measures? In women’s detention centres the majority of prison guards were female; the report said the majority of areas where strip-searches were likely to be carried out were staffed by women, but what percentage was meant by ‘majority’ in such a particularly vulnerable environment?

The disappearance and murders of indigenous women in Canada was a well-known issue, while the high incarceration rate of indigenous women was a cross treaty-body concern. It seemed regional police did not investigate properly. What measures had been taken to instruct police to treat those murders with the same seriousness as other murders?

An Expert raised the internationally-known case of Canadian photo-journalism Zahra Kazemi, who was tortured and raped in an Iranian prison and died as a result. Her death led Canada to lead the Human Rights Council on human rights in Iran. The son of Zahra Kazemi launched a lawsuit in Canadian courts, but it seems to have been rejected. How would Canada provide redress for the family members of Zahra Kazemi, particularly regarding Canada’s acquiescence in Iran’s impunity, and how was the case squared with the new Justice for Victims of Acts of Terrorism Bill?

Canada had an exemplary reputation in terms of protecting human rights both inside and outside of the country, and did not depend on the United Nations. However the very fact that Canada was here today was very good news, an Expert said. The delegation said that the issue of trafficking in persons fell under the remit of other bodies, and thus spoke of smuggling rather than trafficking, as trafficked persons received particular protection in Canada. What protection was given to persons smuggled to Canada?

An Expert agreed with Canada that it was in the interest of treaty bodies to deal with their core mandates, but sometimes, even with the best of intentions, treaty bodies travelled beyond their mandates. The Committee was looking at setting a definition of its own parameters. However, what view did Canada take of the core mandate of the Committee given the fact that torture could take place in everyday life in many ways?

Could the delegation elaborate on what they meant by ‘enhancing offender accountability’, and also about ‘external reviews’ following a public complaint of police officer action. Canada used the word ‘segregation’ to describe solitary confinement, and had two types: disciplinary (which was severe) and administrative. The Committee had been told that any given day 7,500 prisoners in Canada were held in segregation, and of those 16 per cent had spent up to 120 days in solitary confinement. Even to this Committee, 30 days was already a prolonged period, but 120 days was far too long. Had there been an investigation into the case of the young Polish man killed by two Taser shots at Vancouver International Airport?

Initial Response by the Delegation

ALAN KESSEL, Legal Advisor, Department of Foreign Affairs and International Trade of Canada, apologised again for the delay in the submission of the written replies and said he appreciated that Committee members spent much of their weekend reading them. In the limited time available the delegation would answer as many questions as it could, and it hoped to leave the Committee tomorrow with a greater sense of Canada’s commitment to a Convention it had been working on for many years ago and was keen to implement not only domestically but around the world.

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For use of the information media; not an official record