Date: September 18, 2020

Canada still hasn’t ratified OPCAT, revealing apathy of Canadian politicians toward human rights standards

Protocol against torture

Not only has the COVID-19 pandemic revealed cracks in Canada’s social services, but it has also shone a stronger light on the shameful conditions endured by inmates in both criminal and immigrant detention centres. Now Canada is facing increasing scrutiny of detention conditions and how they exacerbate racial and economic discrimination.

Earlier this spring, for example, refugees detained at the Laval Immigration Holding Centre held a hunger strike against the abusive treatment meted out by guards and the Canadian Border Services Agency (CBSA). Well into June, over a hundred inmates at the super-jail in Lindsay, Ontario went on a hunger strike to protest unsanitary conditions and disregard for dietary needs and restrictions. And just a few months ago, the Canadian military was sent in to report on Québec’s long-term care homes, where the province’s worst COVID-19 outbreaks resulted in thousands of preventable deaths, and where seniors were subject to despicable neglect and deprived of their dignity.

What these cases have in common is a lack of consistent oversight and accountability mechanisms to ensure humane treatment. But here in Canada, the connection has rarely been made with a solution that has been embraced by many other countries.

Over 30 years ago, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment came into force as most of the world’s countries agreed to ban the use of torture and establish international standards to hold one another accountable. Through an arduous 11-year process, the United Nations followed this up with another agreement, requiring countries to adopt a preventative mechanism for inspections and oversight of state detention facilities.

This treaty came to be known as the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). It entered into force in 2006—the same year that Canada was elected to the UN Human Rights Council. But somehow, despite early leadership in developing the Convention Against Torture, almost 15 years of successive Canadian governments have failed to make the prevention of torture in Canadian facilities a priority.

The definition of torture is wide-ranging; it includes “severe pain or suffering, whether physical or mental” that is intentionally inflicted to obtain information, to punish, to intimidate or coerce, or “for any reason based on discrimination” with the instigation or consent of a public official. OPCAT is thus relevant not only to police and military facilities, but also any places where people are deprived of freedom. These include immigration detention facilities, senior care centres, psychiatric facilities, and group homes.

OPCAT forces government departments and institutions to decide on how they will meet standards of humane treatment. For Canada to ratify OPCAT would mean creating what’s known as a National Preventative Mechanism (NPM), which would serve as an independent body that visits places of detention to ensure that conditions conform to international standards. It would also integrate existing inspections and oversight mechanisms, like Canada’s Office of the Correctional Investigator.

While torture is illegal in Canada, ratifying OPCAT would make Canada accountable as a nation to international human rights standards, rather than individual institutions subject only to ad hoc and inconsistent governmental oversight.

Ivan Zinger, the Correctional Investigator of Canada, has recommended that Canada ratify OPCAT since stepping into the position over 14 years ago. “It’s been excessively difficult to carry out my mandate,” he said during a phone conversation with Canadian Dimension, comparing the conditions during the pandemic with the investigations he was able to conduct before the onset of COVID-19. “I think it’s an even more pressing need as we struggle with the COVID environment,” he added.

Zinger said his office had spent about 450 days in penitentiaries since the last fiscal year. “That had to go down to almost zero, and now we’re only starting to do short little visits within driving distance of Ottawa.”

As he described it, the Office of the Correctional Investigator is “very reactive,” able to act only on allegations and complaints. There is little in the way of preventative measures to hold Canadian prisons and detention centres to account. Similar ombuds offices act as a last resort, like the CBSA’s Recourse Directorate for “compliments, comments and complaints.”

“Countries that are most progressive will have both systems in place,” he said.

Zinger also emphasized the independence of the NPM from the government. “We can’t rely on the government to criticize itself and move forward, and reform,” he said. Though even here, the mechanism would depend on the federal government to act on its recommendations.

To date, over 100 countries have signed OPCAT, and the majority of these have already designated their NPMs through human rights commissions or decentralized units within an ombuds office. That Canada has still not ratified the treaty reveals a glaring lack of transparency from the federal government with regard to the process itself, and a disturbing reticence regarding accountability for institutions that deprive people of their freedoms.

Since it has not signed or ratified the treaty, Canada has little involvement in ongoing international oversight on the prevention of torture. This does not augur well for Canada’s self-proclaimed role as a “strong voice for the protection of human rights.” Canadian media has also failed to hold the government accountable for repeated misleading promises and demonstrated apathy toward torture—no less in its failure to educate the public about an international law that could prevent deaths and inhumane treatment in detention. Based on the experience of advocates who have worked on this issue for almost two decades, this story also shows a troubling decline in the very democratic principles that Canadian officials supposedly endorse.

Losing hope

Ezat Mossallanejad is a settlement counsellor and policy analyst at the Toronto-based Canadian Centre for Victims of Torture (CCVT), which connects refugees with medical treatment, counselling and legal assistance. The CCVT assists thousands of survivors of torture every year; in 2019 alone, the Centre served 2,600 people, almost 70 percent of whom were women, seniors, children and youth.

Himself a survivor of torture in Iran in the 1980s, Mossallanejad has been involved in the development of OPCAT since 1991, when the UN established a working group to draft the protocol. Over the years, he has gone to Geneva as an observer, occasionally intervening on behalf of the CCVT.

But when Canadian Dimension reached out to Mossallenejad at the CCVT, he admitted, “After 18 years of inaction, we were very frustrated and lost our hope.”

Mossallanejad described a long process of speaking with numerous ministers throughout the early drafting period. He recalled his meetings in a critical period under Jean Chrétien’s Liberal administration, when the Canadian government offered some resistance to US-led invasions of Afghanistan and Iraq. Mossallanejad spoke with Minister of Immigration and Citizenship Sergio Marchi in 1998; and later Minister Lloyd Axworthy, who argued for reducing sanctions against Iraq. He also talked to Foreign Affairs Minister Bill Graham and even his successor, Minister John Manley, who flipped the narrative and advised Stephen Harper to extend Canada’s military mission in Afghanistan indefinitely.

But even with its initial leadership on the Convention Against Torture, Canada developed a reputation early on for shifting its position on OPCAT. “[CCVT] came to know that Canada changed its position, and was going to either abstain from voting,” Mossallenejad said, or cast a “negative vote” at the UN Human Rights Commission in April 2002 to submit OPCAT to the UN General Assembly.

Although Canada eventually voted in favour and OPCAT was in force, Mossallanejad recalled the disappointment when Canada failed to ratify the agreement. “We were expecting Canada to accede to this marvelous piece of international law. But Canada did not.”

Zinger mentioned that he and his predecessor at the Office of the Correctional Investigator, Howard Sapers—with whom he worked for about eight years—had referred to OPCAT in numerous reports.

Sapers himself had worked under both Liberal and Conservative governments, having been appointed first in 2004 by Paul Martin, and then re-appointed under the subsequent Harper and Trudeau governments. When it came to actually doing anything to put OPCAT into action, he said, “There was certainly no sense of urgency.”

He sees the NPM as an umbrella organization that could be administratively housed within the Canadian Human Rights Commission. “It is particularly important that there be robust external oversight,” he said. “There is currently no mechanism that has the ability to look at police lock-ups, provincial remand centres, provincial custody institutions, immigration detention centres, and federal places of custody.”

The election of the Liberals in October 2015 changed nothing; the issue of OPCAT continued to be stalled. In May 2016, however, then Foreign Minister Stéphane Dion made a widely reported statement that seemed to shatter the silence on OPCAT, claiming that it “will not be optional anymore for Canada.”

According to Mossallanejad, however, the conversations that followed the announcement were contradictory, revealing continued reticence around both administrative issues and the broad application of the law—which other countries have somehow managed to successfully implement.

A 2016-2017 report by Zinger’s office invoked OPCAT in connection with the overrepresentation of Black inmates in Canadian prisons and their greater likelihood of being placed in maximum security institutions and being segregated or put in isolation. The report refers to findings by the UN Working Group of Experts on People of African Descent which examined the human rights situation of African-Canadians and explicitly recommended that Canada ratify OPCAT.

In 2018, the UN Committee Against Torture found that Canada did not have sufficient protections against body cavity searches and was lacking in infrastructure for prisoners with physical disabilities as well as resources for mentally ill patients. It also pointed to deficiencies in sanitation and hygiene, along with a concerning use of solitary confinement. By this point, responsibility for OPCAT had been transferred from the DOJ to Global Affairs.

Leading up to the October 2019 election it appeared that the Liberal government was finally signaling a deeper commitment by holding a new consultation with the Department of Justice and the Office of the Correctional Investigator.

Ignoring marching orders

For Mossallanejad, one of the arguments raised against the ratification of OPCAT is that it is “a very broad protocol” and creates challenges for “the administration of jails and detention centres by provincial governments.” Once Canada ratifies OPCAT, the NPM would have to coordinate between provincial and territorial ombuds offices, the Correctional Investigator, as well as with First Nations that operate their own places of custody.

He also mentioned a lack of consultation with civil society groups, particularly concerning given CCVT’s advocacy for torture survivors. In Mossallanejad’s view, “the real issue is that Canada doesn’t want to expose its detention centres and jails to an outside subcommittee, or any UN or global oversight.”

Zinger points out that there are many federal states like Germany and Argentina, that have signed and ratified OPCAT and able to navigate the complexities.

After shameful exposés leading to public pressure that included prisoner strikes that actually called for the enforcement of OPCAT, Australia ratified OPCAT in 2017, and this past June issued recommendations for how to implement the treaty. “It’s not more or less complicated than Canada in terms of how they are constitutionally set up,” said Zinger.

“I’m actually quite concerned when a duly elected government provides marching orders to the public service to move on a file and we don’t see very much action,” said Zinger. “I think it’s the public servants that have to take some of the blame for stalling on this particular file.”

Yet the conversation around OPCAT has once again fallen off the Canadian radar, revealing a long-standing lack of transparency on the part of Global Affairs. Since Global Affairs took the lead on OPCAT, there has been no information about its decisions and no legal analysis has been made public. Matthew Pringle, who leads the Canada OPCAT Project, has been documenting his attempted ATIP requests under the Access to Information and Privacy Act—which have either gone unanswered or have resulted in heavily redacted files.

“There’s been absolutely zero information put out into the public domain in Canada regarding why there’s been no development since the Stéphane Dion statement,” he said. “Perhaps one of the most frustrating parts of the overall process is: where is this open, transparent and inclusive national debate about how the OPCAT can be implemented?”

It should be a matter of serious concern that the bureaucracy staffing Parliament is reticent to act on the mandates of elected officials ostensibly because it’s too much work. And we should be even more disturbed that Global Affairs has shut out organizations representing survivors of torture from dialogue on torture prevention. How can any meaningful democratic debate about one of the most essential protections for human rights and dignity happen without government transparency and public access to information?

Lital Khaikin is an author and journalist based in Tiohtiá:ke (Montréal). She has published articles in Toward Freedom, Warscapes, Briarpatch, and the Media Co-op, and has appeared in literary publications like 3:AM Magazine, Berfrois, Tripwire, and Black Sun Lit’s “Vestiges” journal. She also runs The Green Violin, a slow-burning samizdat-style literary press for the free distribution of literary paraphernalia.

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