Committee against Torture
48th
session
7 May to 1 June 2012
Consideration of reports submitted by
States parties under article 19 of the Convention
ADVANCE
UNEDITED VERSION
Concluding observations of
the Committee against Torture
1.
The
Committee against Torture considered the sixth periodic report of Canada (CAT/C/CAN/6)
at its 1076th and 1079th meetings, held on 21 and 22 May 2012 (CAT/C/SR.1076 and 1079), and adopted
the following concluding observations at its 1087th and 1088th
meetings (CAT/C/SR.1087 and 1088).
A. Introduction
2.
The
Committee welcomes the submission of the sixth periodic report by the State
party, which broadly comply with the guidelines on the form and content of
periodic reports, but regrets that it was submitted three years late.
3.
The
Committee welcomes the open dialogue with the inter-ministerial delegation of
the State party as well as its efforts to provide comprehensive responses to
issues raised by Committee members during the dialogue. The Committee further
commends the State party for the detailed written replies to the list of issues,
which was however submitted three months late, just before the dialogue. Such
delay prevented the Committee from conducting a careful analysis of the
information provided by the State party.
4.
The
Committee is aware that the State party has a federal structure, but recalls
that Canada is a single State under international law and has the obligation to
implement the Convention in full at the domestic level.
B. Positive
aspects
5.
The Committee notes
the ongoing efforts by the State party to reform its legislation, policies and
procedures in areas of
relevance to the Convention, including:
a)
The establishment of the Refugee
Appeal Division within the independent Immigration and Refugee Board by the
2011 Balanced Refugee Reform Act;
b) The establishment of the Internal Inquiry into the Actions of
Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati and
Muayyed Nureddin (Iacobucci
Inquiry), in December 2006;
c) The establishment of the Ipperwash Priorities and Action Committee
by the Ontario Government in 2007 to work on the implementation of the Ipperwash Inquiry Report
recommendations;
d)
The establishment of the Provincial
Partnership Committee on Missing Persons in Saskatchewan in January 2006; and
e)
The Braidwood Inquiry, initiated
by the province of British Columbia in 2008 to examine the case of Robert
Dziekanski.
6.
The
Committee notes with satisfaction an official apology and compensation provided
to Maher Arar and his family, quickly after the release of a report by the
Commission of Inquiry into the Actions of Canadian Officials in Relation to
Maher Arar.
7. The Committee notes with
satisfaction an official apology by Royal Canadian Mounted Police (RCMP) to the mother of Robert
Dziekanski for the loss of her son.
C. Principal
subjects of concern and recommendations
Incorporation of the Convention in the domestic
legal order
8.
While
welcoming the statement made by the delegation that all levels of Canadian
governments take seriously their obligations under the Convention, the
Committee regrets that Canada has not incorporated all provisions of the
Convention into domestic law and that those provisions cannot be argued
independently as the basis for a legal claim in courts other than through
domestic legal instruments. The Committee is of the view that the incorporation
of the Convention into Canadian law would not only be of a symbolic nature but
that it would strengthen the protection of persons allowing them to invoke the
provisions of the Convention directly before the courts. (art. 2)
The Committee recommends that the State
party incorporate all the provisions of the Convention into Canadian law in
order to allow persons to invoke it directly in courts, to give prominence to
the Convention as well as to raise awareness of its provisions among members of
the judiciary and the public at large. In particular, the State party
should take all necessary steps to
ensure that provisions of the Convention that give rise to extraterritorial
jurisdiction can be directly applied before domestic courts.
Non-refoulement
9.
The
Committee notes the State party’s information that the law allowing deportation
despite a risk of torture is merely theoretical. However, the fact remains that
it is the law in force at present. Therefore, the Committee remains seriously
concerned that: (art. 3)
a)
The Canadian law, including
subsection 115(2) of the Immigration and Refugee Protection Act (IRPA),
continues to provide legislative exceptions to the principle of non-refoulement;
b)
The State party continues to
engage in deportation, extradition or other removals, in practice, often using
security certificates under the IRPA and occasionally resorting to diplomatic
assurances, which could result in violations of the principle of
non-refoulement; and
c)
No sufficient information is provided in relation to
investigations into all allegations of
violation of article 3 of the Convention, remedies provided to victims, and
measures taken to guarantee effective post-return monitoring arrangements.
Recalling
its previous recommendation (CAT/C/CR/34/CAN, paras.5(a) and (b)), the
Committee urges the State party to amend relevant laws, including the IRPA,
with a view to unconditionally respecting the absolute principle of
non-refoulement in accordance with
article 3 of the Convention, and take all necessary measures to fully
implement it in practice in all circumstances. Furthermore, the State party
should refrain from the use of diplomatic assurances as a means of returning a person to
another country where there are substantial grounds for
believing that he would be in danger of being subjected to torture.
10. The Committee
regrets the State party’s failure to comply in every instance with the
Committee’s decisions under article 22 of the Convention and requests for interim measures of protection,
particularly in cases involving deportation and extradition (with
reference to communications Nos. 258/2004, Mostafa
Dadar v. Canada and 297/2006, Bachan
Singh Sogi v. Canada), might
undermine its commitment to the Convention. The Committee
recalls that the State party, by ratifying the Convention and voluntarily
accepting the Committee’s competence under article 22, undertook to cooperate
with the Committee in good faith in applying and giving full effect to the
procedure of individual complaints established thereunder. Consequently the
Committee considers that, by deporting complainants despite the Committee’s decisions
or requests for interim measures, the State party has committed a breach of its
obligations under articles 3 and 22 of the Convention. (arts. 3 and
22)
The State party should fully cooperate with
the Committee, in particular by respecting in every instance its
decisions and requests for interim measures. The Committee recommends the State party to review its
policy in this respect, by considering requests for interim measures in good
faith and in accordance with its obligations under articles 3 and 22 of the
Convention.
11. While noting the State party’s
statement that the Canadian Forces assessed the risk of torture or
ill-treatment before transferring a detainee into Afghan custody
(CAT/C/CAN/Q/6/Add.1, para. 155), the Committee is concerned about several
reports that some prisoners transferred by Canadian Forces in Afghanistan into
the custody of other countries have experienced torture and ill-treatment.
(art. 3)
The State party should adopt a policy for
future military operations which clearly prohibits the prisoner transfers to
another country when there are substantial grounds for believing that he or she
would be in danger of being subjected to torture, and recognizes that
diplomatic assurances and monitoring arrangements will not be relied upon to
justify transfers when such substantial risk of torture exists.
Security certificates under the Immigration and
Refugee Protection Act
12.
While
taking note of the system of special advocates introduced by the amended Immigration and Refugee Protection Act (IRPA) in
response to concerns raised by different actors and the judgement by the Supreme
Court in the case of Charkaoui v. Canada, the Committee remains concerned
that: (arts. 2, 3, 15 and 16)
a)
Special advocates have very
limited ability to conduct cross-examinations or to seek evidence
independently;
b)
Individuals subject to the
security certificates have access to a summary of confidential materials
concerning them and cannot directly discuss full content with the special
advocates. Accordingly they cannot properly know the case against them or make
full answer or defence in violation of the fundamental principles of justice
and due process;
c)
The length of this detention
without charges is indeterminate and some individuals are detained for
prolonged periods; and
d)
Information obtained by torture
has been reportedly used to form the basis of security certificates, as
evidenced by the case of Hassan Almrei.
The Committee recommends the State party to
reconsider its policy of using administrative detention and immigration
legislation to detain and remove non-citizens on the ground of national security,
inter alia, by extensively reviewing the use of the security certificates and
ensuring the prohibition of the use of information obtained by torture, in line
with relevant domestic and international law. In that regard, the State party
should implement the outstanding recommendations made by the UN Working Group
on Arbitrary Detention following its mission to Canada in 2005, in particular
that detention of terrorism suspects be imposed in the framework of criminal
procedure and in accordance with the corresponding safeguards enshrined in the
relevant international law (E/CN.4/2006/7/Add.2, para. 92).
Immigration detention
13. While noting the State party’s need
for a legal reform to combat human smuggling, the Committee is deeply concerned
about Bill C-31 (the Protecting Canada’s
Immigration System Act), given that, with its excessive Ministerial
discretion, this Act would: (arts.
2, 3, 11 and 16)
a)
Introduce mandatory detention
for individuals who enter irregularly the State party’s territory; and
b)
Exclude “irregular arrivals” as
well as individuals who are nationals of designated “safe” countries from
having an appeal hearing of a rejected refugee claim. This increases the
risk that those individuals will be subject to refoulement.
The Committee recommends the State party to modify
Bill C-31, in particular its provisions regulating mandatory detention and
denial of appeal rights, given the potential violation of rights protected by
the Convention. Furthermore, the State party should ensure that:
a)
Detention
is used as a measure of last resort, a reasonable time limit for detention is
set, and non-custodial measures and alternatives to detention are made
available to persons in immigration detention; and
b)
All
refugee claimants are provided with access to a full appeal hearing before the
Refugee Appeal Division.
Universal jurisdiction
14. The Committee notes with interest that
any person present in the State party’s territory who is suspected of having
committed acts of torture may be prosecuted and tried in the State party under
the Criminal Code and the Crimes against Humanity and War Crimes Act. However, the
very low number of prosecutions for war crimes and crimes against humanity,
including torture offences, under the aforementioned laws raises issues with respect
to the State party’s policy in exercising universal jurisdiction. The Committee
is also concerned about numerous and continuous reports that the State party’s
policy of resorting to immigration processes to remove or expel perpetrators
from its territory rather than subjecting them to the criminal process creates
actual or potential loopholes for impunity. According to reports before the
Committee, a number of individuals who are allegedly responsible for torture
and other crimes under international law have been expelled, and not faced
justice in their countries of origin. In that regard, the Committee notes with
regret the recent initiative to publicize the names and faces of 30 individuals
living in Canada who had been found inadmissible to Canada on grounds they may
have been responsible for war crimes or crimes against humanity. If they are
apprehended and deported, they may escape justice and remain unpunished. (arts.
5, 7 and 8)
The Committee recommends the State party to
take all necessary measures with a view to ensuring the exercise of the
universal jurisdiction over persons responsible for acts of torture, including foreign
perpetrators who are
temporarily present in Canada, in accordance with
article 5 of the Convention. The State party should enhance its efforts,
including through increased resources, to ensure that the “no safe haven” policy prioritizes criminal or extradition proceedings over
deportation and removal under immigration processes.
Civil redress and state immunity
15. The Committee
remains concerned at the lack of effective measures to provide redress, including compensation,
through civil jurisdiction to all victims of torture, mainly due to the restrictions
under provisions of the State Immunity Act (SIA). (art.14)
The State party should ensure that
all victims of torture are able to access remedy and obtain redress, wherever
acts of torture occurred and regardless of the nationality of the perpetrator
or victim. In this regard, it should consider amending the State Immunity Act
to remove obstacles to redress for all victims of torture.
Torture and ill-treatment of Canadians detained
abroad
16.
The
Committee is seriously concerned at the apparent reluctance on part of the
State party to protect rights of all Canadians detained in other countries, by
comparison with the case of Maher Arar. The Committee is in particular
concerned at: (arts. 2, 5, 11 and 14)
a)
The State party’s refusal to
offer an official apology and compensation to the three Canadians despite the
findings of the Iacobucci Inquiry. Their cases are similar to the case of Arar, in
the sense that all of them were subjected to torture abroad and the Canadian
officials were complicit in the violation of their rights.
b)
Canadian officials’ complicity
in the human rights violation of Omar Khadr while detained at Guantánamo Bay (Canada (Prime Minister) v. Khadr, 2010
SCC 3; and Canada (Justice) v. Khadr, 2008
SCC 28) as well as the delay in approving his request to be transferred to
serve the balance of his sentence in Canada.
In light of the findings of the Iacobucci
Inquiry, the Committee recommends the State party to take immediate steps to
ensure that Abdullah Almalki, Ahmad Abou Elmaati and Muayyed Nureddin receive
redress, including adequate compensation and rehabilitation. Furthermore, the
Committee urges the State party to promptly approve Omar Khadr’s transfer
application and to ensure that he receives appropriate redress for human rights
violations that the Canadian Supreme Court has ruled he experienced.
Intelligence information
obtained by torture
17. While taking note of the State party’s national security priorities,
the Committee expresses
its serious concern about the Ministerial Direction to the Canadian Security
Intelligence Service (CSIS), which could result in violations of article 15 of
the Convention in the sense that it allows intelligence information that may
have been derived through mistreatment by foreign States to be used within
Canada; and allows CSIS to share information with foreign agencies even when
doing so poses a serious risk of torture, in exceptional cases involving
threats to public safety, in contravention to recommendation 14 from the Arar
Inquiry. (arts. 2, 10, 15 and16)
The Committee recommends the State party to modify
the Ministerial Direction to CSIS to bring it in line with Canada’s obligations
under the Convention. The State party should strengthen its provision of
training on the absolute prohibition of torture in the context of the
activities of intelligence services.
Oversight mechanism over security and
intelligence operations
18. The Committee is concerned about the
lack of information on measures taken by the State party to implement proposals
made in the Policy Report from the Arar Inquiry for a model of comprehensive
review and oversight of law enforcement and security agencies involved in
national security activities. (arts. 2, 12, 13 and 16).
The Committee recommends the State party to:
a)
Examine
options for modernizing and strengthening national security review framework in
a more timely and transparent manner;
b)
Consider
urgently implementing the model for oversight of agencies involved in national
security agencies, proposed by the Arar Inquiry; and
c)
Inform
the Committee of changes made with regard to oversight mechanism over security and intelligence operations in the next periodic
report.
Detention conditions
19. While noting a Transformation Agenda
launched by the Correctional Service of Canada (CSC) with a view to improving
its operations, the Committee remains concerned at: (arts. 2, 11 and 16)
a)
The inadequate infrastructure
of detention facilities to deal with the rising and complex needs of prisoners,
in particular those with mental illness;
b)
Incidents of inter-prisoner
violence and in-custody deaths resulted from high-risk lifestyles such as drug
and alcohol abuse which, as acknowledged by the delegation, still circulate in
places of detention; and
c)
The use of solitary confinement, in the forms of disciplinary and administrative segregation, often extensively prolonged, even for persons with
mental illness.
The State
party should take all necessary measures to ensure that detention conditions in
all places of deprivation of liberty
are in conformity with the UN Standard Minimum Rules for the Treatment of Prisoners,
adopted by the Economic and Social Council in its resolutions 663 C (XXIV) and
2076 (LXII). It should, inter alia:
a)
Strengthen its efforts to adopt
effective measures to
improve material conditions in prisons, reduce the current overcrowding,
properly meet the basic needs of all persons deprived of their liberty and
eliminate drug;
b)
Increase
the capacity of intermediate and acute mental health treatment centres for
prisoners;
c)
Limit
the use of solitary confinement
as a measure of last resort for as short a time as possible under strict
supervision and with a possibility of judicial review; and
d)
Abolish
the use of solitary confinement
for persons with serious or acute mental illness.
Violence against women
20. While noting several measures taken by the federal and provincial
governments to combat high violence against Aboriginal women and girls,
including cases of murders and disappearances (CAT/C/CAN/Q/6/Add.1, paras.76 et
al.), the Committee is concerned about ongoing reports that (a) marginalised
women, in particular Aboriginal women, experience disproportionately high
levels of life-threatening forms of violence, spousal homicides and enforced
disappearances; and (b) the State party failed to promptly and effectively investigate, prosecute and punish
perpetrators as well as to provide adequate protection for victims. Furthermore, the Committee regrets the
statement by the delegation that the issues on violence against women fall more
squarely within other bodies’ mandate and recalls that the State bears
responsibility and its officials should be considered as authors, complicit or
otherwise responsible under the Convention for consenting to or acquiescing in
acts of torture or ill-treatment committed by non-State officials or private
actors. (arts. 2, 12, 13 and 16)
The State party should
strengthen its efforts to exercise due diligence to intervene to stop, sanction
acts of torture or ill-treatment committed by non-State officials or private
actors, and provide remedies to victims. The Committee recommends the State
party to enhance its efforts to end all forms of violence against aboriginal
women and girls by, inter alia, developing a coordinated and comprehensive
national plan of action, in close cooperation with aboriginal women’s
organizations, which includes measures to ensure impartial and timely
investigation, prosecution, conviction and sanction of those responsible for
disappearances and murder of aboriginal women, and to promptly implement
relevant recommendations made by national and international bodies in that
regard, including the Committee on the Elimination of Racial Discrimination,
the Committee on
the Elimination of Discrimination against Women, and the Missing
Women Working Group.
Conducted Energy Weapons
21. The Committee notes the various
initiatives taken by the State party to introduced greater accountability and
more restricted standards to govern use of Conducted Energy Weapons (CEWs), including national guidelines issued by the federal
government in 2010. However,
it remains concerned at reports about the lack of consistent and coherent
standards applicable to all policing forces at federal and provincial level as
well as the unclear legal framework for the testing and approval for use of new
forms of such weapons by police forces in Canada. Furthermore, the
Committee regrets that the national guidelines are not binding and do not
establish a consistent and sufficiently high threshold to govern the use of
CEWs across the country. (arts. 2 and 16)
Taking into consideration the lethal and
dangerous impact of CEWs on the physical and mental state of targeted persons,
which may violate articles 2 and 16 of the Convention, the Committee recommends
the State party to ensure that such weapons are used exclusively in extreme and
limited situations. The State party should revise the regulations governing the
use of such weapons, including the national guidelines, with a view to
establishing a high threshold for the use of them, and adopting a legislative
framework to govern the testing and approval for use of all weapons used by law
enforcement personnel. Furthermore, the State party should consider
relinquishing the use of CEWs such as “tasers”.
Police crowd control methods
22.
The
Committee is concerned about reports on the excessive use of force by law
enforcement officers often in the context of crowd control at federal and
provincial levels, with particular reference to indigenous land-related
protests at Ipperwash and Tyendinaga
as well as the G8 and G20 protests. The Committee is
particularly concerned about reports of severe crowd control methods and
inhumane prison conditions in the temporary detention centers. (arts. 11 and
16)
The Committee recommends the State party to strengthen its efforts to ensure
that all allegations of ill-treatment and excessive use of force by the police are
promptly and impartially investigated by an independent body, and those
responsible for such violation are prosecuted and punished with appropriate penaltiesFurthermore, the State party and the
government of the Province of Ontario should conduct an inquiry into
the Ontario Provincial Police handling of incidents at Tyendinaga and into all aspects of the
policing and security operations at the G8 and G20 Summits.
Data collection
23. The
Committee regrets the absence of comprehensive and disaggregated data on
complaints, investigations, prosecutions and convictions of cases of torture
and ill treatment by law enforcement, security, military and prison personnel,
as well as on extrajudicial killings, enforced disappearances, trafficking and
domestic and sexual violence.
The State party should compile statistical
data relevant to the monitoring of the implementation of the Convention
obligations at the national level, including data on complaints,
investigations, prosecutions and convictions of cases of torture and
ill-treatment, detention
conditions, abuse by public officials, administrative
detention, trafficking and domestic and sexual violence as well as on means of
redress, including compensation and rehabilitation, provided to the victims.
24. The
Committee recommends that the State party strengthen its cooperation with
United Nations human rights mechanisms and its efforts in implementing their
recommendations. The State party should take further steps in ensuring a
well-coordinated, transparent and publicly accessible approach to overseeing
implementation of Canada’s obligations under the United Nations human
rights mechanisms, including the Convention.
25. In light of the State party’s
pledges to the Human Rights Council in 2006 and its acceptance of
recommendations by the Universal Periodic Review working group (A/HRC/11/17,
para. 86(2)), the Committee urges the State party to accelerate the current
domestic discussions and to ratify the Optional Protocol to the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
as soon as possible.
26. The Committee invites the State
party to ratify the core United Nations human rights treaties to which it is
not yet a party, namely the International Convention for the Protection of All
Persons from Enforced Disappearance, the International Convention on the
Protection of the Rights of All Migrant Workers and Members of Their Families, and
the Convention on the
Rights of Persons with Disabilities.
27. The State
party is requested to disseminate widely the report submitted to the Committee
and the Committee’s concluding observations, in appropriate languages, through
official websites, the media and non-governmental organizations.
28. The State party is invited to update
its common core document (HRI/CORE/1/Add.91), in accordance with the
requirements of the common core document contained in the harmonized guidelines
on reporting under the international human rights treaties (HRI/GEN.2/Rev.6).
29. The Committee requests the State
party to provide, by 1 June 2013, follow-up information in response to the
Committee’s recommendations related to (1) ensuring or strengthening legal
safeguards for detainees, (2) conducting, prompt, impartial and effective
investigations, and (3) prosecuting suspects and sanctioning perpetrators of
torture or ill-treatment, as contained in paragraphs 12, 13, 16 and 17 of the
present document.
30. The State party is invited to submit
its next report, which will be the seventh periodic report, by 1 June 2016. To that purpose, the Committee invites the
State party to accept, by 1 June 2013, to report under its optional reporting
procedure, consisting in the transmittal, by the Committee to the State party,
of a list of issues prior to the submission of the periodic report. The State
party's response to this list of issues will constitute, under article 19 of
the Convention, its next periodic report.