A central aspect of committing to the crucial treaties that make up the world’s vital international human rights framework is the agreement of states that their record of compliance and implementation with UN treaties will be reviewed periodically by expert and independent United Nations committees. Canada has signed on to seven of the main UN treaties, which means that those valuable review sessions come around fairly regularly. This month it has been the turn of the UN Committee against Torture, which last took a look at Canada’s record with respect to torture prevention back in 2005.
The review is a three day process, with time slots juggled with sessions dealing with other matters on the Committee’s agenda over that same time period. It begins with an opportunity for members of the Committee to meet with interested civil society groups, such as Amnesty International, and explore and hear directly about areas of concern. Then there is a back and forth of presentations, questions and responses between the Committee and an official government delegation, spread over two days, during which time a wide range of issues are discussed. That has wrapped up, and I was there throughout. We now await the final report from the Committee – known as “Concluding Observations” – which constitute a set of important UN recommendations that Canada is certainly expected to take up.
No one is suggesting that there is widespread torture taking place within Canada. There are, of course, some areas of concern on that front – particularly with regard to unjustified or excessive police force used in response to Indigenous land and resource occupations and protests, or other mass demonstrations such as the events that played out on the streets and detention centres of Toronto during the 2010 G20 protests, or more recently in relation to the student protests in Quebec. Excessive force in those circumstances may be tantamount to torture or, at least, ill-treatment (both of which are banned under international law). The ways in which Taser guns have been used on occasion in Canada also give rise to concerns about possible torture or ill-treatment.
What is widespread, however, is the concern that Canada is – in a multitude of ways – complicit in torture committed by others: be that torture abroad or the failure to take adequate steps to ensure that Indigenous women are protected from the alarming levels of violence they have experienced for decades here in Canada. Also of concern is the fact that Canada comes up short in taking the required steps to ensure that foreign torturers face justice, a key plank in the global torture-prevention agenda.
It was clear, even before arriving in Geneva for this review, but underscored by participating in and listening to the exchanges, that concerns about complicity in torture abroad so very often arise in relation to Canada’s national security laws, policies and practices. Consider the following list of troubling issues, all of which were raised – sometimes repeatedly – by the Committee.
There is the fact that Canadian law (both in legislation and a 2002 Supreme Court of Canada ruling) maintains that in exceptional circumstances it is okay to deport an individual to a country where there is a serious risk that he or she will be tortured. Most often this arises in cases where Canadian officials assert that the person concerned poses a threat to national security or public safety. But it blatantly contravenes Canada’s obligation under the Convention against Torture – sending someone off to a substantial risk of torture is never allowed, no matter the circumstances.
Canadian officials tried to convince the Committee that this is just a theoretical possibility, and that no one has ever been sent away from Canada facing a serious risk of torture. But the Committee was having none of that. First, there are unfortunately a growing number of cases where it does appear that individuals deported from Canada, who argued against deportation because of concerns about torture, have in fact been tortured upon return to their countries. In one case, the Committee had even asked Canada to hold off on the deportation to give them time to examine it more closely. Canada refused to do so and the man was tortured in India after he was deported. Furthermore, government lawyers spend a lot of time in court, such as in the immigration security certificate cases, forcefully arguing for deportations to go ahead despite torture concerns — an odd legal strategy for something that is just “theoretical”.
Canada’s notorious immigration security certificate system was also certainly a heated topic for discussion. Numerous Committee members highlighted concerns about the fact that individuals are denied access to the bulk of the information being used against them in certificate proceedings, making it very difficult to mount a defence. The government insisted that the introduction of Special Advocates in 2008 has addressed those concerns. They glossed over the fact, however, that once Special Advocates have been given access to “secret” information in government files, they are barred from communicating with the person subject to a certificate (unless they obtain an exceptional judicial order allowing them to have contact), making it almost impossible to determine the best way to challenge the information they have seen.
Canada was asked about various individual cases, particularly that of Omar Khadr and the trio of cases that were the subject of former Supreme Court of Canada Justice Frank Iacobucci’s 2008 inquiry report, Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin. For the most part delegates tried to duck those questions, relying on the fact that those cases are currently before the courts. What they failed to point out is that they are before the courts because the government has consistently and defiantly, for years, refused to provide redress or ensure accountability for the overseas human rights violations, including torture and ill-treatment, that all of those men have experienced, in Afghanistan, Guantánamo Bay, Syria and Egypt. There are authoritative findings of Canadian complicity in what happened to them: in Omar Khadr’s case we see it in two Supreme Court of Canada rulings; for the other three men it is catalogued in the pages of Commissioner Iacobucci’s thorough report. The complicity is clear. But still, there is no redress on offer.
In total distinction to how those cases have been handled, the government was rightly commended for having provided an official apology and compensation to Maher Arar for Canada’s role in his unlawful detention, torture and other human rights violations in the United States, Jordan and Syria. There was concern, however, about the fact that almost six years after the Arar Inquiry wrapped up, Commissioner Dennis O’Connor’s detailed proposal for a comprehensive new model for reviewing the activities of Canadian agencies involved in national security has gone nowhere.
There also was much discussion about the Ministerial Direction to CSIS regarding intelligence information and torture that recently came to public attention through an Access to Information Request. That Direction establishes that in exceptional circumstances involving threats to public safety, CSIS agents are free to make use of intelligence information that may have been derived through torture abroad and also that they should go ahead and share intelligence information with foreign agencies even if doing so is very likely to result in torture. The delegation highlighted the provisions in the Ministerial Direction that very broadly require CSIS to act in compliance with Canada’s international obligations; but did not explain to the Committee how allowing intelligence information to be used in these ways complies with Canada’s unconditional obligations to prevent and punish torture under the Convention.
The Committee’s Concluding Observations should be available by the beginning of June. But then will come the hard work of encouraging Canada to comply with what has been suggested; not Canada’s strong suit when it comes to international human rights obligations. For instance, the Committee has twice before called on Canada to amend legislation to ensure that no one, in any circumstances, will ever be deported in the face of a substantial risk of torture. Those previous recommendations, from 2000 and 2005, have been utterly disregarded.
One step at a time. First we await final word from the Committee. In addition to the national security front, concerns have been raised about violence against Indigenous women, refugee protection, the use of Tasers, corrections facilities policies with respect to such practices as segregation, justice and redress for survivors of torture, policing of Indigenous and other protests and much more. There was also discussion about the fact that six years after Canada made a UN pledge to “consider” signing on to an important torture prevention treaty, the Optional Protocol to the Convention against Torture – a pledge that was repeated in 2009 – there appears to have been very little progress towards that goal.
When we have the Committee’s report, then we must all make it clear to federal, provincial and territorial governments across Canada, that this time we expect full compliance. Canada’s longstanding commitment to a strong international human rights system merits nothing less.