Committee against Torture hears responses of Canada

AFTERNOON

22 May 2012

The Committee against Torture this afternoon heard the responses of Canada to questions raised by Committee Experts on the sixth periodic report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Responding to questions raised by Committee Members on Monday, 21 May and today, the delegation of Canada, led by Alan Kessel, Legal Advisor, Department of Foreign Affairs and International Trade of Canada, emphasized that all the levels of Government were aware of and took seriously Canada’s international human rights obligations, which were set out in Canada’s Charter, and any laws found to be inconsistent with the Charter could be struck down. In their answers the delegation gave information on proposed changes to Canada’s immigration and refugee system through the draft bill ‘Protecting Canada’s Immigration System Act’, about human rights training for personnel working in law enforcement, including on the use of force and Taser guns, efforts to eliminate drugs from and modernize detention facilities, and details about women’s prisons. Canada’s programme to prosecute or extradite persons accused of war crimes or genocide was discussed, as was the use of administrative segregation (solitary confinement) in places of detention. Delegations also spoke about the case of Omar Khadr in Guantanamo Bay and civil redress for acts of torture.

In concluding remarks, Mr. Kessel said it was clear that today’s societies were a work in progress. The Universal Declaration of Human Rights was formed in a very different world. Canada was learning every day and applied much of the experience gained from interaction with treaty bodies.

Claudio Grossman, Committee Chairperson, thanked Canada for its response to all of the questions and its valuable cooperation.

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 concluding observations and recommendations on the report of Canada will be issued towards the end of the Committee’s session which concludes on 1 June.

The Committee’s next public meeting will be at 3 p.m. on Wednesday, 23 May when the Committee will hear the replies of Cuba.

Response of the Delegation of Canada

All levels of Government in Canada were aware of and took seriously Canada’s international human rights obligations, which were set out in Canada’s Charter. Any laws found to be inconsistent with the Charter could be struck down. Canadian courts considered international human rights treaties to which Canada was party to be domestic law. Federalism enhanced the protection of human rights in Canada by encouraging the federal, provincial and territorial Governments to work in cooperation and find innovative solutions to human rights issues. That permitted jurisdictions across Canada to generate and exchange a broad range of measures to protect human rights. For example, while correctional facilities were subject to the Charter and regulated by law, territorial institutions had some flexibility to adapt their policies and programmes to the detained population’s needs.

The Head of Delegation made a clarification regarding his initial concluding remarks reported in yesterday’s press release. He said that in his reference to Canada’s commitment to a Convention it had worked on many years ago and was keen to implement around the world, he had meant that Canada had worked on the drafting of the Convention against Torture and had been very much with it from its birth, as a midwife, and continued to be part of the Convention’s DNA.

A delegate confirmed that the Supreme Court had ruled that in exceptional circumstances an individual who constituted a serious threat which was more important than the threat to the person themselves, could be sent back to their country of origin. Although that possibility existed in theory it had never been used.

Regarding proposed changes to Canada’s immigration and refugee system, a draft bill titled ‘Protecting Canada’s Immigration System Act’ was currently being looked at in parliament. The draft bill aimed to protect true refugees and clandestine people entering Canada and to punish perpetrators of human smuggling. It worked on two fronts, setting very high criminal sentences for smugglers, up to $1 million and life imprisonment, and also deterrent measures. The principles of non refoulement were perfectly upheld. Detention was not a punitive measure but a protective measure to protect the security of Canada. If a group of people arrived illegally in Canada it was impossible to know whether those people were terrorists who may attack Canadians, or if anybody among them were people smugglers. It took time to verify their identity, if not detained those people would simply disappear into thin air. The situation was reviewed every six months. Conditions were satisfactory and included access to interpreters, health care, private places for prayer, nutritious food that met religious dietary requirements, the right to contact a lawyer and representatives of their own Government, limited local phone calls, written contact, and the right to make complaints. Once granted refugee status individuals were released from custody.

Personnel in public security agencies received ongoing training on all aspects that affected their work, including human rights training and specifically on the Convention against Torture. Training provided to the Royal Canadian Mounted Police on the use of force began from the outset with cadet training and addressed excessive force and the offence of torture. Officers were trained on the preventative techniques available to them as well as defensive tactics and were taught to only use force if necessary and at appropriate levels. Enquiries and studies were carried out into the use of Taser weapons by police, notably following the death of an individual in British Columbia. While the studies did not recommend a moratorium on the use of Taser guns, the recommendations included reclassifying it as an ‘impact weapon’, limiting its use to only certain officers, re-training officers on its use, and amending recommendations for its use to only when there was an imminent threat to a policeman.

Efforts had been made to eliminate drugs from detention facilities and to modernize infrastructure. Approximately 80 per cent of offenders had some problem with drugs or alcohol at the time of their admission, with a sizeable number abusing more than one drug type at the time. In 2008 the Minister of Public Safety announced 120 million Canadian dollars to help eliminate drugs from federal institutions, with a three-pronged approach focusing on prevention, treatment and interdiction. Measures included piloting new technologies to help control the flow of drugs in prisons and increasing staff. The Government recently announced upcoming prison closures including Kingston Penitentiary, a maximum-security prison built in 1835. Overcrowding was related to infrastructure modernization, and the Government would be adding space to existing facilities. From 1999 to 2008/9, 533 federal offenders and 376 provincial offenders died in custody. The Correctional Service took the death of an offender very seriously, and for each death initiated immediate corrective procedures and a follow-up investigation in an effort to prevent such tragedies. The Correctional Service was committed to providing a healthy and safe environment for every inmate, providing all with access to essential services and ensuring every inmate was adequately clothed, fed, and provided with personal articles for health and cleanliness.

With respect to administrative segregation (known as solitary confinement), it was imposed to ensure the safety of inmates, Correctional Service staff and the public. An inmate in administrative segregation had rights and conditions of confinement as did other inmates, such as access to legal counsel, correctional programmes, spiritual support and mental health treatment as required. Just under half of inmates stayed in administrative segregation for 30 days or less, 24 per cent stayed 30 to 60 days and 13 per cent stayed longer than 60 days. There were strict safeguards in place to ensure administrative segregation was a fair and humane detention. A member of staff visited the individual daily to monitor conditions while an administrative segregation review board had to review inmates’ status. Since 2007 significant work had been done to address concerns about the use and length of administrative segregation for offenders generally and for those with mental health issues in particular. Now the mental health of an offender was considered when a decision was being made about putting them in administrative segregation. Addressing the mental health needs of offenders was a Correctional Service priority. Disciplinary segregation was a sanction that could be imposed under Canadian Law for an offender guilty of a serious disciplinary offence and may not exceed 30 days.

With respect to staffing, at women-only penitentiary institutions 75 to 80 per cent of guards on any given shift were women. Other measures included ensuring male staff were accompanied by female staff and not allowing male staff to conduct or witness strip searches or decontamination showers, and ensuring emergency response teams were only comprised of women. The new women’s prison in Manitoba had indeed been completed and was now operational. It had 25 beds.

Intake in Quebec prisons was about 4,000 per year, and that figure included convicts, those on pre-trial detention or community sentencing, and those on parole. The law had formalized partnership between the Government of Quebec and community organizations that offered services in detention centres on areas such as housing or psycho-social support. Those community organizations played a role in the social integration of offenders. Several prisons in Quebec were being modernized, while a new community detention institution was being opened for aboriginal persons and would be run by members of the indigenous community.

Canada was still in the process of considering whether to become party to the Optional Protocol to the Convention. The domestic review process could take a long time as the issues were complex and involved many levels of Government. Canada was careful to ensure it could live up to future commitments, and was committed to enhancing and modernizing its procedures. Today’s discussion was useful in that regard.

Concerning its obligation to extradite or prosecute, Canada’s war crimes programme was based on duel purposes of ensuring Canada would not become a safe haven for persons guilty of torture, war crimes, crimes against humanity and genocide, as well as making an effective contribution to the global effort to reduce impunity for such crimes. The programme incorporated four partner organizations that closely collaborated not only with each other but with organizations abroad. Canada’s process for determining which cases would be prosecuted in its domestic justice system related to the availability of evidence, public interest, reasonable prospects of conviction, the issue of impunity in the event Canada did not prosecute, and other issues. In the case of Mr. Leon Mugesera, who was extradited to face charges of genocide in Rwanda, it was decided that Canadian courts would not be able to obtain the necessary evidence in a reasonably efficient manner and to a level that would meet the standard of proof in criminal proceedings. After very lengthy domestic proceedings the federal court concluded that Mr. Mugesera did not face a substantial risk of torture upon his return to Rwanda. However there was enough evidence to prosecute the cases of Mr. Jacques Mungwarere and Mr. Désiré Munyaneza.

Regarding civil redress for acts of torture, individuals who alleged they were victims of torture in any part of Canadian territory had the right to complain and have their complaint addressed by the courts, if they could substantiate their allegations. Judges had broad discretion to apply any remedy they deemed appropriate in the circumstances.

Mr. Omar Khadr continued to receive consular support in the United States’ Guantanamo Bay Detention Facility. The Minister of Public Safety had received Mr. Khadr’s application for transfer and was currently considering it. The decision to transfer Mr. Khadr would be made in accordance with Canadian Law. The Supreme Court had affirmed the possibility of Mr. Khadr receiving redress. Regarding a separate case, that of Mr. Maher Arar, the judicial review into it made recommendations that led to improved national cooperation, enhanced safeguarding of information shared with other countries, and enhanced consular services for Canadians living abroad.

The Government was very aware that aboriginal women and girls continued to suffer violence at a far higher rate than non aboriginal women, and was very concerned at the continued murders and disappearances of aboriginal women. The Government’s approach to those problems included improving investigations into cases, enhancing victim services, and support for their families. Ultimately Canada was aware that that type of violence was not within the parameters of this Committee, and the issue was being addressed by other bodies such as the Committee on the Elimination of Discrimination against Women and the Committee on Elimination of Racial Discrimination. Canada had also provided extensive information on that topic to the Inter-American Commission on Human Rights, and suggested it would be appropriate for the Committee against Torture to refer consideration of that issue to those other bodies. Over the last 25 years Canada had shown its dedication to the Convention against Torture. It took its reporting obligations to human rights treaty bodies very seriously, and was keen to show how, as a modern democracy, Canada adapted its policies in step with a changing world. Canada welcomed the Committee’s comments.

Follow-Up Questions from Experts

ALESSIO BRUNI, Committee Expert serving as Rapporteur for the Report of Canada, said he was grateful for the amount of information given by the delegation although he still had some unanswered questions. He referred to the draft bill on migration and the issue of detention, and said he understood the need to identify individuals and ensure they had no criminal past. He thought a review every six months seemed quite a long time. Concerning solitary confinement, the Rapporteur again referred to experts who said the effects of a person being detained in solitary conferment longer than 15 days could be irreversible. He also raised the possibility that information obtained through mistreatment may be used by the courts, which was not in conformity with the Convention.

The Rapporteur returned to the case of Mr. Omar Khadr, who was a young person, only 14 years old when he was arrested by the United States and taken to Guantanamo Bay. How could such a young person, who had been eligible for transfer to a Canadian prison since October 2011, possibly represent a risk to Canadian society? Furthermore, was the Government aware of statements made by Mr. Khadr alleging mistreatment, if not torture, during his detention in Guantanamo Bay? Whether he was a terrorist or not, it was a very important point. An Expert said he had been informed that Canada believed that diplomatic assurances were a promise, not a guarantee, and asked about the protocol for the giving of diplomatic assurances in the case of Canadian citizens abroad?

Issues of assault towards children and violence against women were raised by an Expert, who said torture by non-State actors was an issue that sometimes seemed not to be taken as seriously as it should be. Such acts included severe violence against women and children, such as female genital mutilation, burning, cutting, imprisonment by families, whipping and severe sexual and psychological violence. Those acts may be performed in a non-State situation, but investigation, protection, prevention and redress were very important. In gravity those crimes shared aspects of the definition of torture, as well as its discriminatory effect, the Expert said, and torture by non-State actors should be taken up, in particular in terms of awareness-raising. Torture was not something that happened only to one gender: it happened to women and children as well.

CLAUDIO GROSSMAN, Committee Chairperson, noted the delegation’s invitation for the Committee not to consider acts of domestic violence, but said unfortunately that was an invitation the Committee could not affect due to its obligations to the Convention; discriminatory treatment for women or men that could constitute torture was clearly listed in article 16. It was true, there were committees on the rights of child, prevention of discrimination against women and racial discrimination, and so on, but if the Committee was to do that it would end up only considering acts of torture that were committed against white males.

Response by the Delegation

Canada considered solitary confinement, referred to in Canada as administrative segregation, as a measure of last resort and a preventative measure not a punitive one. It was only used when there was no reasonable alternative. For 2011/2012, the average time inmates spent in involuntary administrative segregation was 32 days, and for voluntary administrative segregation the average time was 52 days. A delegate confirmed that any type of detention in Canada was subject to the guarantees of the Charter, there was no differentiation between types of detention as to which guarantees applied.
Regarding State immunity in respect of acts of torture committed by other States, Canada recently amended the State Immunity Act to allow Canadian victims of terrorism committed on or after January 1 1985 in certain countries to sue for redress. It was Canada’s policy not to communicate on individual communications, but to communicate in private, in writing, with the Committee.

Canada was firmly committed to the elimination of violence against women both domestically and around the world, and was both aware of and committed to its due diligence obligations to prevent, investigate and punish any instances of violence against women. Canada responded, in its written answers, at length about measures it was taking to address violence against aboriginal women and children. The delegation was trying to encourage the Committee to look at information Canada had already provided to other United Nations bodies on the subject.

There was considerable interest in the case of Omar Khadr, and the Committee was correct that he has been eligible to return since October 2011, and Canada recently received a request from the United States to that effect, which was currently being reviewed by the Minister for Public Safety. Throughout Mr. Khadr’s incarceration the Government exercised its right to provide services to him and had been in contact with him on a regular basis. Mr. Khadr had already exercised his right to the judicial system of Canada and litigation regarding redress was currently in the courts.

The Head of Delegation thanked the Committee for the follow-up, which was very important as it allowed a dialogue in real time rather than a set-piece discussion. In answer to a question about diplomatic assurances, they were rarely relied on, and of the thousands of deportations carried out during the reporting period Canada only relied on diplomatic assurances four times. Assurances were fully disclosed to individuals who were subject to them and they were given opportunity to challenge these assurances. What constituted sufficient safeguards against torture was highly case-specific. Canada believed diplomatic assurances were highly effective, as nothing was more effective than the embarrassment of a State in the international realm, there were strong reasons for States to accept.

Concluding Remarks

ALAN KESSEL, Legal Advisor, Department of Foreign Affairs and International Trade of Canada, expressed Canada’s appreciation for the opportunity to share views. All the Committee’s comments would be noted and referred to the Government, and concerns would be relayed to the appropriate authorities. Canada again reiterated its point that it may be useful for treaty bodies to look at information submitted to other treaty bodies in the past. It was clear that today’s societies were a work in progress. The Universal Declaration of Human Rights was formed in a very different world. Canada was learning every day and applied much of the experience gained from interaction with treaty bodies.

CLAUDIO GROSSMAN, Committee Chairperson, thanked Canada for its response to all of the questions and its valuable cooperation.

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For use of the information media; not an official record