Canada and the Prevention of Torture: Time to End the Foot-Dragging

In 2002 the United Nations adopted an important new human rights treaty focused on preventing torture. A laudable goal to say the least. And one which one would expect Canada would have supported quickly and enthusiastically by ratifying as soon as possible. 67 countries have signed up – about 1/3 of the members of the United Nations – including many of Canada’s closest allies. But more than a decade later, Canada is not yet on that list.

The treaty came in the form of an Optional Protocol to the UN’s existing Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. The Optional Protocol recognizes that one of the most significant reasons that torture continues to occur with such alarming frequency and brutality – right around the world – is secrecy. Torturers carry out their crimes far from watching eyes. What could make it easier to keep it up then?

The Optional Protocol aims to pierce that secrecy through inspections of detention centres. Those inspections focus on identifying the conditions and circumstances that facilitate torture and pressing authorities to make changes. That may include issues related to the training of prison guards, use of incommunicado detention, poor prison conditions, and the existence of complaint bodies when abuse does take place.

States that commit themselves to the Optional Protocol agree to put in place independent national bodies that will carry out inspections. They also agree to accept occasional visits from an expert UN body, the Subcommittee on Prevention of Torture. This combination of national and international inspections is not only intended to help with identifying necessary reforms and improvements. The prospect of an inspection should also keep authorities on their toes and dissuade them from allowing or facilitating torture in the first place, assuming that they won’t want to get caught.

Canada has promised the international community on two separate occasions that we were going to get around to ratifying this important treaty. But as the years go by the rhetoric of those assertions has, to say the least, worn thin.

In 2006 Canada was standing for election to be among the first group of members of the newly established UN Human Rights Council. Under a new election process, meant to bring greater integrity to this new UN body, aspiring members were required to lay out a series of public human rights pledges. One of the pledges Canada made at the time was to “consider ratifying” the Optional Protocol if elected. Canada was elected and served a three year term on the Council. Those three years came and went without any announcement of ratification; and no visible sign of a serious process of considering doing so. So much for keeping election promises.

Then in 2009 Canada went through a new UN human rights review process, known as Universal Periodic Review (UPR). Under the UPR, for the first time in UN history, the human rights record of every member of the UN is assessed on an ongoing basis, once every four years. The review, unlike other UN processes, is carried out by other governments, bringing a degree of political and peer pressure that is missing in reviews carried out by independent experts. Many states recommended that Canada move to ratify the Optional Protocol. In its June 2009 response to the UPR Canada again committed to “consider ratifying” the Optional Protocol. But again, nothing happened.

The wording – to “consider” ratification – has been carefully chosen. But by any measure surely seven years is more than enough time to move from consideration to ratification.

And now, in April 2013, Canada has had its second turn in the UPR. Even more states – 16 in fact – recommended that Canada ratify the Optional Protocol. It was one of the most frequently repeated recommendations. Some expressed puzzlement as to what was standing in the way. We are now waiting to hear what Canada will say in reply; that response will be delivered to the Human Rights Council in September 2013.

Groups that campaign against torture, like Amnesty International and the Canadian Centre for Victims of Torture – along with organizations working with prisoners in Canada, such as the Elizabeth Fry and John Howard Societies – have repeatedly called on Canada to ratify. We have highlighted that it is of value both domestically and globally.

By no means is anyone arguing that there is an epidemic of torture and cruel treatment in Canadian detention centres. However, cases do arise. The current ongoing inquest into the Ashley Smith case is a tragic reminder of that. Being part of this new oversight system would help bring greater vigilance and guard against abuses.

The international dimension is perhaps what is paramount however. Torture is rampant in so many countries. And while in Canada there are bodies that do provide some oversight and the prospect of going to court exists; in many countries that is far from the case. In fact, in many parts of the world the absence of the rule of law is a key contributing factor to widespread, unchecked torture. In those situations, the national and international inspections required through the Optional Protocol could play a vitally important role. Canada should be pushing other countries to become parties to the Optional Protocol as part of a wider effort to work towards eradication of torture around the world. But we can hardly do so if we have not ratified ourselves.

So what is the problem? How could Canada possibly have problems with this? There is no clear answer to that question.

There have been concerns raised about the fact that the inspection bodies would have the right to access prison records, including details about prisoners, and that this may have privacy-related ramifications. That is certainly surmountable.

There has also been complexity because of the fact that detention centres in Canada fall within the jurisdiction of multiple different governments. There are federal penitentiaries and federally-run immigration detention centres. There are jails and remand centres run by provinces and territories. There are holding cells operated by various First Nations police forces. Figuring out that complexity might explain a two or three year delay. It is a lame excuse for a decade of inaction.

The main problem, without a doubt, is simple lack of political will and leadership. It is a textbook example of the ways that Canada’s approach to international human rights obligations is a shambles. There is no clearly designated Minister who is responsible for steering a process like this. Instead, there are numerous federal Ministers who have a piece of it, meaning that no one leads.

The Minister of Heritage is responsible for coordinating information flows and consultations among federal, provincial and territorial governments about international human rights matters. The Minister of Foreign Affairs is obviously engaged because ultimately he would deliver Canada’s ratification to the UN. The Minister of Public Safety has a role, because Corrections Canada and immigration detention both come within his department. The Minister of Justice likely has views, particularly if ratifying would require any changes to Canadian laws. And the Minister of Aboriginal Affairs has an interest, given that First Nations police do hold prisoners. So many Ministers involved. No surprise then perhaps that none of them is in charge. In fact, it is likely that, if asked, most of these Ministers would have to admit they have not heard of the Optional Protocol or are not familiar with the status of possible ratification.

Groups concerned about torture and the rights of prisoners remain hopeful that Canada will finally announce ratification when delivering its UPR report to the UN Human Rights Council in September. If not, this issue will move from being a source of frustration to a source of embarrassment. Canada should be leading the world’s efforts to tackle torture, not dragging its feet.