Measures Adopted by the Government of Canada

Article 2: Legislative, administrative, judicial and other measures

5. Previous periodic reports outlined a series of constitutional and legislative measures directed at preventing torture. There is no new legislation to report.

6. Since the Committee against Torture has indicated an interest in anti-terrorism legislation, the following is a description of Canada's anti-terrorism legislation, including safeguards it contains to protect human rights.

7. Following the terrorist attacks against the United States of 11 September 2001, Canada undertook a comprehensive review of criminal, security and other relevant legislation with a view to addressing the new threat. The review resulted in the Anti-terrorism Act[1], which was given Royal Assent on 18 December 2001. Most of the provisions came into force on December 24, 2001, and with the last proclamation on 6 January 2003, it is now fully in force. The preamble to the Anti-terrorism Act recognizes that terrorism is a matter of national concern but this concern must be addressed while continuing to respect and promote the values reflected in, and the rights and freedoms guaranteed by, the Canadian Charter of Rights and Freedoms (the Charter).

8. The Act addresses a number of specific areas and implements Canada's international obligations under Security Council resolution 1373 of 28 September 2001. Specific amendments include a definition of "terrorist activity",[2] new criminal offences and sentences, changes to evidence laws, and powers and procedures for dealing with the financing of terrorism.

9. The amendments contain new provisions respecting the arrest and detention of persons to prevent terrorist activities, based on existing criminal law powers. Those suspected of involvement in criminal offences are subject to the normal process of investigation and prosecution. As a preventive measure, however, any peace officer who believes on reasonable grounds that a terrorist activity will be carried out may obtain a judicial arrest warrant and those suspected of involvement and identified may be arrested and detained, if there are grounds to suspect that the arrest is necessary to prevent the terrorist activity. Where there are exigent circumstances, suspects may be arrested without a warrant. Anyone arrested must be taken before a judge within 24 hours if a judge is available and otherwise as soon as possible. Once before the judge, the suspect can be directed to comply with a court order to keep the peace and meet any specific requirements imposed. If the suspect agrees to the order, he or she must be released, subject to re-arrest and prosecution if the order is not complied with. If the suspect refuses to agree, he or she may be detained for up to 12 months. At the end of this period, the suspect must be released, subject to the possibility of the State bringing a further recognizance application. In all proceedings, once the suspect has been arrested, the burden of establishing the existence of the circumstances needed to obtain a recognizance order lies with the State.

10. The legislation also contains powers to conduct judicial investigative hearings (s. 83.28 of the Criminal Code), at which attendance by anyone specified by the judge to have direct and material information related to a terrorism offence is mandatory, and those ordered to attend, may be arrested and detained for failure to attend or if there is reason to believe they might be about to flee. The compatibility of these provisions with the Canadian Charter of Rights and Freedoms has been examined by the Supreme Court of Canada. On June 23rd 2004, in Application under s. 83.28 of the Criminal Code (Re), the majority of the Court stated that the challenge for democracies in the battle against terrorism is to balance an effective response with fundamental democratic values that respect the importance of human life, liberty and the rule of law.[3] The Court concluded that, subject to interpretive comments, the impugned provisions (s. 83.28 of the Criminal Code) meet that challenge.

11. In that same judgment, the Supreme Court of Canada reiterated what it had expressed in previous cases (Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; United States v. Burns, [2001] 1 S.C.R. 283) concerning the seriousness with which it views deportation or extradition to countries where torture and/or death are distinct possibilities. In that context, the Supreme Court also held that evidence collected at an investigative hearing should be subject to an order preventing its subsequent direct or derivative use in extradition or deportation proceedings where the potential for such use by the state exists.

12. The Anti-Terrorism Act contains rigorous safeguards to uphold the rights and freedoms of those affected by it. These safeguards include, with respect to preventive arrest and investigative hearings, requiring prior consent of the Attorney General where the proceedings take place; a judicial authorization; and requiring the Attorney General and Solicitor General of Canada, provincial Attorneys General and Ministers responsible for policing to report annually to Parliament on the use of the preventive arrest and investigative hearing provisions in the new Act. In addition, the Parliament has directed that a comprehensive review of the legislation be conducted within 3 years of its adoption, and a review commencing in late 2004 is expected. It also imposed a "sunset" requirement under which the specific powers relating to preventive detention and investigative powers cease to apply unless extended by a legislative resolution.

13. Nothing in any of the new offences, investigative powers or other provisions affects any of the safeguards already in place against torture and related activities. Criminal Code subsection 269.1(4), which bars the use of any statement obtained by torture for any purpose except as evidence that it was in fact obtained by torture, applies in full to all of the new procedures.

14. In addition, the Royal Canadian Mounted Police (RCMP) has developed internal policies that add additional safeguards with respect to the use of these provisions. Among other requirements, the policy requires that the RCMP Deputy Commissioner of Operations personally approve all requests from RCMP officers to make use of these provisions, before a request is made for the consent of the Attorney General.


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Article 3: Prohibition of expulsion and extradition

15. A new immigration act, entitled the Immigration and Refugee Protection Act (IRPA) came into force on June 28, 2002. IRPA includes as an objective and as a rule of interpretation the importance of fulfilling Canada's international obligations, in particular to refugees.

3. (2) The objectives of this Act with respect to refugees are

(b) To fulfil Canada's international legal obligations with respect to refugees and affirm Canada's commitment to international efforts to provide assistance to those in need of resettlement.

3. (3) This Act is to be construed and applied in a manner that

(f) complies with international human rights instruments to which Canada is signatory.

16. The risk of torture is recognized under IRPA as one of the grounds for conferring refugee protection. Torture is defined in the Act (s.97(1)(a)), by reference to article 1 of the Convention Against Torture. Another new ground leading to refugee protection under IRPA is the risk to life and the risk of cruel and unusual treatment or punishment (s.97(1)(b)). Refugee protection is conferred primarily by the Refugee Protection Division of the Immigration and Refugee Board. However, IRPA also provides for a Pre-Removal Risk Assessment (PRRA), prior to the removal of failed asylum claimants or others who are the subject of a removal order (s.112), including persons ineligible for a hearing by the Refugee Protection Division on grounds of security, human or international rights violations, serious criminality or organized criminality. The protection grounds under the PRRA also include the risks mentioned in s.97, including the risk of torture (ss.113(c) and (d)). All PRRA officers receive extensive training on a number of international conventions, including the Convention against Torture. In making decisions on PRRA applications, officers have continuous access to these conventions, as well as to the PRRA policy manual: http://www.cic.gc.ca/manuals-guides/english/pp/pp03e.pdf.

17. As a rule, Canada will not remove persons to a country where they risk being tortured (s.115). The risk of indirect refoulement to torture is also addressed in IRPA. A country can only be designated as a safe third country, i.e. where an asylum seeker can be removed to have their claim examined without that claim having been examined in Canada, if the proposed designated country complies both with article 33 of the 1951 Convention relating to the Status of Refugees and article 3 of the Convention Against Torture (s.102).

18. The government of Canada takes its international obligations to protect people at risk of persecution, torture and other cruel and unusual treatment or punishment very seriously. The government also has an obligation to maintain the security of Canadian society. IRPA allows for the removal of foreign nationals who constitute a danger to the public or the security of Canada; however, this is to be done only in exceptional circumstances and after the risk to the individual has been carefully balanced against the risk to Canadian society. During this process the foreign national is given the possibility to present submissions and the Minister's decision is subject to review by the courts. The Supreme Court of Canada ruled in the case of Suresh v. Canada (Minister of Citizenship and Immigration) ([2002] 1 S.C.R. 3) that while deportation to torture will generally violate the principles of fundamental justice protected by the Canadian Charter of Rights and Freedoms, it might be justified under the balancing process, in exceptional circumstances.


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Article 7: Prosecution of persons alleged to have committed torture

19. An Interdepartmental Operations Group, comprised of officials from Citizenship and Immigration[4], the Department of Justice and the Royal Canadian Mounted Police (RCMP), was created in 1998 and coordinates Canada's War Crimes Program. Allegations of war crimes or crimes against humanity come from victims, witnesses, foreign governments, ethnic communities, non-governmental organisations, and from active citizenship and immigration files in which the applicant has testified before the Immigration and Refugee Board of his or her own criminal wrongdoing.

20. The Interdepartmental Operations Group has identified more than 80 suspects as individuals whose cases merit further attention. The cases are prioritized according to defined criteria which includes: the nature of the allegation, the seriousness of the crimes, the strength of the investigation, the position occupied by the individual, the ability to conduct documentary research to test the credibility of the allegation and the ability to secure cooperation from other countries or international tribunals in order to conduct the investigation. The investigations are complex and lengthy as they generally deal with crimes committed several years before on foreign territory. In some countries, the people are often struggling to overcome the full impact of the atrocities committed in their homes or in their neighbourhoods. In some circumstances, the conflicts have not completely ceased, making investigations even more difficult. Therefore, it can be difficult to gather reliable evidence that will be accepted in a Canadian court of law. Once the investigations are complete, if there is evidence of torture sufficient to create a reasonable likelihood of conviction by Canadian courts, appropriate charges may be laid.

21. The RCMP, with the assistance of the Department of Justice, has conducted modern war crimes investigations in at least 15 countries in the last year, including the Former Yugoslavia, Rwanda and other parts of Africa, Latin America and the Middle East. The Government of Canada is entering into agreements with other governments to allow Canadian officials to seek evidence in more countries.

22. There are several remedies available to deal with alleged war criminals and persons who have committed crimes against humanity-from extradition, to prosecution, to deportation. The Canadian government applies its immigration laws to deny entry and exclude such persons from using the protection accorded to genuine refugees. Canadian immigration legislation includes measures so that Canada does not become a safe haven for persons who commit acts of torture and cruel, inhuman or degrading treatment. The goal of Canada's War Crimes Program is to select the appropriate remedy in every situation. Where there is a reasonable prospect of a conviction and it is in the public interest to launch a criminal prosecution, the Canadian Government will do so. Since 1999, an annual report has been issued that details the activities of the War Crimes Program. All annual reports can be found at http://www.cic.gc.ca/english/pub/index-2.html.

Article 10: Education and training

23. The Fourth Report provides details on training pertaining to the Correctional Service Canada, RCMP, Canadian Forces, and Immigration Enforcement officers. Additional information is provided below.

24. Canadian Immigration Enforcement provides training and information to all immigration officers, as well as other law enforcement partners, about the Convention Against Torture as it pertains to immigration-related matters. Immigration training is comprehensive in that it considers Canada's international obligations, as well as the Canadian Charter of Rights and Freedoms.

25. The Enforcement Training Program and the Examining Officer training, which are mandatory for all officers who perform enforcement functions, discuss policies and procedures in place when performing an arrest and detention, including the treatment of individuals in custody.

26. The Canadian Forces (CF) have measures in place to ensure that CF personnel do not commit torture or other acts of cruel, inhumane or degrading treatment or punishment. Canadian Forces members are also trained to recognize and report any such acts if they observe them. The CF continue to train its military personnel on the standards of the Convention, by conducting the training that incorporates prohibitions against torture either as part of Law of Armed Conflict (LOAC) or Code of Conduct training.

27. This training is enhanced by initiatives such as the self-study package in Operational Law and draft manual of Operational Law prepared by the Office of the Judge Advocate General. These refer to international law, including international human rights law, that may be applicable to CF international operations. These materials also reiterate the legal obligations of the CF and all CF personnel to ensure that all detainees in CF control, regardless of legal status, are treated humanely. Operational Law encompasses both LOAC and international human rights law as two of the many legal regimes that impact on CF operations.


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Article 11: Treatment of persons arrested, detained or imprisoned

Correctional Service Canada (CSC)

28. The Corrections and Conditional Release Act (CCRA) remains the core piece of legislation governing Correctional Service Canada. Section 69 of the CCRA provides that no person shall administer, instigate, consent to or acquiesce in any cruel, inhumane or degrading treatment or punishment of an offender who is or has been incarcerated in a penitentiary. This section prohibits the use of corporal punishment as a disciplinary sanction.

Use of Force

29. Correctional staff are accountable for using only as much force as is believed, in good faith and on reasonable grounds, to be necessary to carry out their legal duties. Every reasonable step is taken to explore and assess alternatives to the use of, or escalation in the use of, force. The use of force must be proportional to the risks and circumstances.

30. As noted in the Fourth Report, CSC policy requires that Use of Force Reports be completed, describing and justifying the type and amount of force used in specific contexts. All inmates are to be examined by health care professionals following any use of force situation. CSC policy also dictates that an Institutional Head must formally call for an investigation when he has reason to suspect that the amount of force used in a situation may have been excessive.

Inmate Discipline

31. Since Canada's Fourth Report, CSC has revised its policy on inmate discipline (http://www.csc-scc.gc.ca/text/plcy/cdshtm/580-cde_e.shtml). The new policy, which incorporates the former policy on disciplinary segregation, contains a number of changes that contribute to a fair and transparent disciplinary system that promotes the accountability and individual responsibility while contributing to public safety and an orderly, safe correctional environment. These changes include:

  • that each institution assign a major court disciplinary advisor and an alternate to ensure consistency in the implementation and operation of the disciplinary process;
  • a clearer set of guidelines for determining the category of an offence;
  • a requirement to document the reasons for delays in the disciplinary process where exceptional circumstances apply; and
  • clear direction on the cell effects allowed in disciplinary segregation.

Special Handling Unit

32. As CSC's most secure facility, the Special Handling Unit (SHU) is reserved for inmates who have proven to be too dangerous for the safety of staff and other inmates to be managed in any other maximum security facility. In September 2002, CSC amended Commissioner's Directive 551 - Special Handling Unit (http://www.csc-scc.gc.ca/text/plcy/cdshtm/551-cde_e.shtml). The amendments ensure that the decision-making responsibility for placements to and from the SHU rest with one person, the Senior Deputy Commissioner, instead of being split between the Commissioner and the National Review Committee. The Commissioner retains responsibility for responding to third level offender grievances related to SHU placements.

33. The policy regarding the SHU has also been amended to ensure that an external representative will participate as a member of the SHU Advisory Committee, which advises the Special Deputy Commissioner on SHU decisions. The participation of an external member provides further openness and accountability and is an effective means to ensure administrative fairness.


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Women Offenders

34. Three Reports are discussed here: the Arbour Report; the Final Report of the Cross Gender Monitor; the Canadian Human Rights Commission's report entitled "Protecting Their Rights: A Systematic Review of Human Rights in Correctional Services for Federally Sentenced Women".

35. Canada's Fourth Report refers to the positive impact that the Commission of Inquiry into Certain Events at the Prison for Women in Kingston (the Arbour Report) has had on CSC by making the organization and its culture more respectful of the rights of both male and female offenders. The most significant developments stemming from the Arbour Report are outlined in Canada's Fourth Report. To date, CSC has taken decisive action on all recommendations in the Arbour Report that are within its jurisdiction.

36. In March 2004, CSC opened its sixth correctional facility for federal women offenders and the first of its kind in CSC's Pacific region. Located in British Columbia, the institution is currently comprised of seven houses, each with six individual bedrooms. These houses accommodate both minimum and medium security women.

37. During 2001, CSC implemented Structured Living Environment houses in the regional facilities to address an identified need for a more intensive response to minimum and medium security women with significant cognitive limitations or mental health concerns. The Structured Living Environment houses accommodate up to eight women and are staffed on a full-time basis with individuals who have been trained in specialized mental health intervention.

38. At the time of Canada's Fourth Report, approximately 15 percent of federally sentenced women were living in three units co-located within existing male facilities in Saskatchewan, Quebec and Nova Scotia. This was an interim measure to be used while CSC built specially designed Secure Units for women classified as maximum security. By February 2003, Secure Units were operational in CSC's Atlantic, Quebec and Prairie regions. The Secure Unit in the Ontario region is expected to be operational by the summer of 2004. It is anticipated that the Secure Unit in the Pacific region will be operational by the summer of 2005.

39. As noted in Canada's Fourth Report, an independent Monitor the Cross Gender Monitor was appointed to provide a three-year review of the policy and operational impacts of cross gender staffing in the federal women's facilities. The Final Report of the Cross Gender Monitor (Final Report) was released in April 2001. Results revealed that over 80% of staff working in the regional women's facilities and over 80% of women offenders support the use of male front-line staff in selected functions. The Final Report further stated that 84% of staff and 68% of women offenders agree that having male staff working in a facility has positive effects. Despite these findings, the Final Report made eleven recommendations, the most significant of which was the termination of cross gender staffing in the regional women's facilities and healing lodge. The remaining recommendations focus on staff training and screening, sexual misconduct issues, and monitoring activities.

40. Following release of the Final Report, CSC conducted extensive internal and external consultations with regard to the Monitor's main recommendation. Despite some disagreement, the majority of parties indicated that they are in favour of maintaining a percentage of men as front-line staff in women's institutions. CSC has since developed a working group to evaluate the impact that male front-line workers have on operational practices in women's institutions. This working group will determine the frequency with which operational practices are dictated by mandated, gender-specific policies. Such a determination will result in the opportunity to examine privacy and dignity issues, the impact on daily operations and financial implications. Once the working group has determined the frequency with which operational practices are impacted by mandated, gender-specific policies, CSC will review this data to establish the most appropriate response to the Final Report.

41. In January 2004, the Canadian Human Rights Commission released a report on federally sentenced women entitled, Protecting Their Rights: A Systematic Review of Human Rights in Correctional Services for Federally Sentenced Women. The Report reviews the extent to which federal corrections provides services that respond to the specific needs of women, and identifies "ways of bringing the correctional system into line with the purpose of the Canadian Human Rights Act." It notes that CSC has made progress in developing a system specific to the needs of women offenders. However, the Report also raises a number of issues related to federally sentenced women including: the assessment and classification of women offenders; health issues; programming; reintegration; accountability; and, external redress. In addition, the Report includes 19 recommendations related to risk and need assessment; safe and humane custody and supervision; rehabilitation and reintegration programming; and mechanisms for redress. CSC is currently studying the recommendations and will prepare a comprehensive response to the report. The full report can be viewed at: www.chrc-ccdp.ca/legislation_policies/consultation_report-en.asp.


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Aboriginal Offenders

42. The over-representation of Aboriginal people in the federal correctional system continues to be a pressing challenge for the criminal justice system as a whole. Aboriginal people make up two percent of the Canadian adult population, but account for 17% of all federal offenders.

43. Since Canada's Fourth Report, CSC's strategic direction regarding the Aboriginal offender population has moved from a focus on individual programs to a broader focus on the entire correctional continuum. This means providing a whole range of integrated, aboriginal-specific services from intake to discharge. This integrated approach includes: the intake assessment process; intervention and treatment initiatives; and, maintenance and release opportunities. In addition, CSC and the broader Aboriginal community continue to provide a range of services to the Aboriginal offender population through placements in Healing Lodges.

44. Placements at Healing Lodges help address the needs of the Aboriginal offender population through traditional Aboriginal teachings, ceremonies, contact with Elders and children, and interaction with nature. Service delivery is premised on individualized plans, a holistic approach, interactive relationships with the community and a focus on preparation for community release. As of April 2004, there are eight Healing Lodges in operation with the capacity to manage 339 offenders in total.

45. In November 2002, CSC published a report entitled, An Examination of Healing Lodges for Federal Offenders in Canada. The report examined both Healing Lodges run by CSC and those run by the Aboriginal community. The report raises a number of issues, all highlighting the need to strengthen current Healing Lodges before endeavouring to create new ones. The key issues raised in the report include: human and financial resources, staff training, the efficiency of the transfer process, the effectiveness of communications between Healing lodges and CSC institutions and the amount of community involvement in the operations of the Healing Lodges. CSC has developed an action plan to respond to the aforementioned report, and a final report on the Action Plan is to be delivered to CSC's Executive Committee in October 2004.

46. Since 2000-2001, CSC has hired Aboriginal Community Development Officers (ACDOs) in each region, in order to develop a national infrastructure for the consistent delivery of Aboriginal community correctional initiatives. The key legislative provision is section 84 of the Corrections and Conditional Release Act, which provides that where an inmate who is applying for parole has expressed an interest in being released to an aboriginal community, the Service shall, if the inmate consents, give the aboriginal community adequate notice of the inmate's parole application, and an opportunity to propose a plan for the inmate's release to, and integration into, the aboriginal community.

47. The ACDOs roles and activities have centered on the following areas: promoting the provisions of section 84 and increasing Aboriginal community involvement through awareness and training; carrying out awareness training for parole officers and the National Parole Board; promoting the provisions of section 84 of the Act and increasing offender awareness; promoting the involvement of the Aboriginal community in institutions; implementing measures to ensure consistent follow-up where section 84 has been identified as an option. Since 2000/2001, 175 section 84 release plans were undertaken by Aboriginals.

48. CSC has also developed a strategy for working with Aboriginal offenders in institutions that provides for enhanced programs and services for those who wish to pursue a healing path. Entitled Aboriginal Pathways in Federal Corrections, or the Aboriginal Pathways Strategy, the strategy deals with the establishment of healing environments at all security classifications and is designed to provide intensive Aboriginal programs to address personal development as well as the opportunity to learn effective social skills, responsible behavior and attitudes. One of the goals of Pathways is to build a continuum of Aboriginal specific services from intake to release within existing correctional facilities. In 2002, this concept was piloted in the Prairie region at Saskatchewan Penitentiary and Stony Mountain Institution. It is running currently also at La Macaza Institution in Quebec. It is intended to be introduced in other regions in the near future.

Inmate Suicides

49. In September 2002, CSC modified and expanded its policy entitled "Commissioner's Directive 843 - Prevention, Management and Response to Suicide and Self-Injuries" (http://www.csc-scc.gc.ca/text/plcy/cdshtm/843-cde_e.shtml). The following key elements were added to the policy to ensure continuous improvement in prevention and intervention efforts with respect to suicide and self-injury: an outline of the responsibilities of the Institutional Head, District Director, psychologists or appropriate health service professionals and other staff; and a requirement that within 24 hours following the transfer of an offender from one CSC facility to another, the sections of the Offender Intake Assessment pertaining to suicide must be re-administered.


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Royal Canadian Mounted Police

50. The RCMP reviewed its interview and interrogations procedures in the fall of 2003 to ensure consistency with the spirit and the intent of the Convention against Torture, recent case law and best practices. RCMP policy with respect to the treatment of persons arrested, detained or imprisoned take into account all relevant factors of the Convention. A person in RCMP custody will also be treated in accordance with rights provided under Canadian law.

51. The RCMP actively seeks the input of Aboriginal peoples through mechanisms such as the RCMP Commissioner's National Aboriginal Advisory Committee, which is comprised of 13 Aboriginal community members from across Canada who meet twice a year to advise the RCMP on issues affecting Aboriginal people.

52. The Public Safety Cooperation Protocol between the Assembly of First Nations (AFN) and the Royal Canadian Mounted Police (RCMP) was signed on May 18, 2004. The Protocol is the first of its kind between the two national organizations and is the result of proactive discussions. The purpose of the Protocol is to establish a trusting and reciprocal relationship with a focus on public, community and police officer safety.

Immigration

53. The Government of Canada has taken measures to address the circumstances of those who are detained pursuant to the Immigration and Refugee Protection Act (IRPA). National standards of care and treatment for detainees in facilities have been implemented, and a detention monitoring agreement has been signed with the International Committee of the Red Cross. An information brochure for detainees outlining their rights, policies that may affect them and other general information has been published. It is entitled "Deprived of freedom" and can be found on Internet at: http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList528/. 

54. A national detention data reporting system has also been established to collect sex disaggregated data. Where possible and appropriate, detention facilities are being modified to accommodate women who wish to have their children with them. In a special initiative, one provincial facility in Quebec has provided a home for use in the event that a woman wishes to have her children detained with her.

55. The IRPA affirms as a principle that a minor child shall be detained only as a measure of last resort and that such decisions shall take into account the best interests of the child.

Sedation

56. The current policy regarding the involuntary sedation of clients under removal is found in Enforcement Manual 10 - Removals, Section 24 (http://www.cic.gc.ca/manuals-guides/english/enf/index.html). It states that under no circumstances will any foreign nationals be taken to a physician solely for the purpose of that foreign national being placed under sedation for removal from Canada. Where a foreign national has been taken to a physician for some other legitimate medical reason, the physician may address the question of sedation for removal as a secondary issue. If the physician decides to prescribe medication, the foreign national concerned must be asked if he or she wishes to take such medication, and if not, no medication is to be administered.

Hearings

57. The current policy regarding the role of hearings officers in preparing a case for intervention before the Immigration and Refugee Board and during an intervention hearing is found in Enforcement Manual 24 - Ministerial Interventions, Section 7 (http://www.cic.gc.ca/manualsguides/english/enf/index.html). Hearings officers represent the Government and, as such, they are instructed to always act professionally. The guidelines make it very clear to hearings officers that they have a duty to assess the sensitivity of each case when preparing for an intervention. Issues such as a claimant having been tortured, witnessed massacres or having been detained in a place where torture was practised, should be of specific concern to the hearings officers. It is even suggested that a pre-hearing conference be held to limit the areas of sensitivity during the hearing. During an intervention hearing, the officer is reminded to carefully consider the necessity of asking a particular question related to a sensitive issue, such as those listed above. The officer is tasked with monitoring a claimant's reaction to such questions and will consider modifying their approach to make the claimant more comfortable.


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National Defence

58. In light of recent events highlighting concerns respecting torture of detainees by countries allied with Canada, the Canadian Forces (CF) has undergone a review of its policies and procedures regarding the detention and handling of individuals in order to ensure compliance with the Convention Against Torture and other relevant international legal instruments.

59. Specifically the CF has reviewed its procedures related to interrogation and tactical questioning. It has been noted that the primary aim of interrogation and tactical questioning is the timely extraction of information from a prisoner of war in a humane manner. As a part of CF policy, all interrogation will comply with relevant international law, including conventions and agreements such as the Third Geneva Convention and the Convention Against Torture.

60. All individuals used for interrogation purposes are instructed that all individuals subject to interrogation or tactical questioning shall be treated humanely. No physical or mental torture, nor any other form of coercion, may be inflicted on an individual to secure from them information of any kind. Individuals who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.

Article 12 : Impartial and immediate investigation, and

Article 13 : Allegations of torture or abuse by authorities

Correctional Service Canada (SCC)

61. In March 2003, CSC released a Policy Bulletin on Harassment which clarifies CSC's policies and redress procedures pertaining to harassment. A further policy clarification was issued June 9, 2003, regarding the investigation of allegations of harassment made by offenders. The clarification incorporates the procedural safeguards outlined in the anti-harassment policy for government employees, notably that a trained harassment investigator from outside the institution or parole office from which the complaint originated will conduct a thorough investigation. The institutional head, Regional Headquarters or National Headquarters, can convene an investigation. In late 2003 and early 2004, CSC conducted training to reinforce the processes involved in handling offender harassment complaints (including allegations of staff misconduct). A monitoring system is currently being developed to ensure that responses to these complaints are in compliance with CSC policy.

62. From April 2000 to March 2004, CSC recorded a total of 89,272 offender complaints and grievances. The majority of these complaints and grievances (71,483) were investigated and responded to at the operational level (complaint and first level). Of the remainder, 11,912 were managed at the regional (second) level and 5,877 were examined and responded to at the national (third) level.

Royal Canadian Mounted Police (RCMP)

63. The Commission for Public Complaints Against the RCMP continues to operate as outlined in the Fourth Report; however, reports are forwarded to the Minister of Public Safety and Emergency Preparedness, which is now the Minister responsible for the RCMP.[5] By way of additional information, it can be noted that, at any stage of the complaint process, the Commission Chair may also conduct an investigation where the Chair considers it advisable in the public interest, regardless of whether the RCMP has investigated or disposed of the complaint. On completion of the investigation, the Chair prepares and delivers to the Commissioner of the RCMP and the Minister of Public Safety and Emergency Preparedness a written report setting out findings and recommendations. After receiving the Commissioner's response, the Chair prepares a final report that is distributed to all parties, the RCMP Commissioner and the Minister of Public Safety and Emergency Preparedness.

64. Since May 2000, a number of public complaints against the RCMP alleging improper use of force, oppressive conduct, and improper arrest and search have been made. The events which gave rise to the majority of these complaints occurred at the time of arrest or during transportation to detention facilities.

65. For the Commission, isolated public complaints that may meet the "reasonable person" criteria for cruel, inhuman or degrading treatment or punishment, as stated in Article 16 of the Convention include:

  • extended period of detention without justification;
  • cellblock overcrowding;
  • failure to provide a prisoner a meal at a normally scheduled mealtime;
  • failure to provide a prisoner his / her own medication;
  • failure to provide the amenities or maintain clean cells;
  • incarcerating a youth with an adult;
  • assaulting a detainee in a cellblock area; and
  • failure to conduct a strip search in an appropriately sheltered location.

66. Some complaints have alleged failure to seek medical attention for a detainee who appears ill or injured or who claims to be ill or injured.

67. The Commission and the RCMP have addressed these complaints. The Commission's reports can be found at: http://www.cpc-cpp.gc.ca/DefaultSite/index.aspx.

68. From May 2000 to March 2004, the Commission received a total of 4,787 complaints. Generally, the Commission receives half of all the complaints lodged, the other half being received by the RCMP directly. After receiving a response to their complaint by the RCMP, 844 of these complainants requested a review by the Commission. During this time period the Commission produced 678 reports in which the Commission was satisfied with the conduct of the RCMP members in question; and 168 interim reports, where the Commission concluded that the subject members or the subject members' conduct, behaviour, or performance failed to conform to the standard prescribed in law or policy.

69. The Commission reviewed a number of complaints between May 2000 and March 2004 regarding the care and treatment of detainees. While some of the complaints were found to be unsubstantiated, the Commission did make the following comments, among others, to the RCMP:

  • RCMP members should continue to refer to their Incident Management/Intervention Model to determine which level of force is appropriate in a situation;
  • medical care must be provided to detainees when requested;
  • RCMP members must treat detainees with dignity; and
  • RCMP detachment members should be reminded that they are responsible for the care and well-being of detained persons.

70. In cases where the Commissioner of the RCMP agreed with the Commission's findings and recommendations, depending on the cases, he may have directed that policy be created or amended, that training be designed and/or provided, that apologies be extended, and/or that operational guidance be provided. Operational Guidance is the process of coaching, training or directing the member, in a non-disciplinary fashion, toward the prescribed standard.

71. There have also been allegations with respect to the release of persons into adverse climates. These allegations have involved persons who were not detained, but whose vehicle was impounded, or detainees who were released from incarceration. Remedial action was taken in cases where the allegations were determined to be founded.

72. On January 28, 2004, the Government of Canada announced an inquiry into the actions of Canadian officials in the case of a specific individual. In addition to the factual inquiry being conducted by a judge appointed as the Commissioner of the inquiry, the inquiry mandate includes making recommendations on an independent arm's length review mechanism for the RCMP's national security activities.


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Asia-Pacific Economic Cooperation (APEC) Conference Inquiry

73. An RCMP interim report on the results of the public interest hearing on complaints surrounding the RCMP's involvement in the Asia-Pacific Economic Cooperation (APEC) Conference was completed on July 31, 2001. The Chair of the Commission for Public Complaints Against the RCMP submitted her final report on March 25, 2002. The RCMP responded to the Commission's recommendations and has made policy changes in the following areas, among others: policing public order events; opportunity for protest; relations with protestors; body search policy; privacy for personal searches; and release of prisoners.

74. Overall, the Commissioner of the RCMP accepted that errors were made in planning security arrangements at the University of British Columbia site and that the RCMP had failed to achieve a high state of readiness. Additional observations included that the RCMP:

  • Learned considerably from the experience and that, since APEC, has gained valuable experience at several major public order events such as the Francophone Summit in Moncton, New Brunswick (September 1999); the meeting of the Organization of American States in Windsor, Ontario (June 2000); and the Summit of the Americas in Quebec City (April 2001).
  • Conducted an extensive review of their readiness and response to major public order events, including initiating ongoing consultations with other police agencies, nationally and internationally, to share information and identify best practices in the provision of security.

75. The recommendations from the APEC public hearing report have been implemented or are actively being addressed. This report has had a positive impact on the RCMP's approach to major public order events.

76. In 2000, the RCMP created a national public order-working group. As a result of the group's recommendations, a public order unit was established in the newly formed Critical Incident Program to ensure better preparedness in policing major incidents whether scheduled events or spontaneous occurrences.

77. The Critical Incident Program presently maintains the national program coordination for the Negotiators, Incident Commanders, Public Order/Tactical Troops, Emergency Response Teams, Emergency Medical Response Teams, and Emergency Planning. Coordinators have the mandate to ensure that policies and training for the respective areas of expertise is maintained.

78. A Tactical Operations Manual has been re-written and covers the following areas:

  • New training course for tactical troop commanders
  • Basic courses for troop members, instructors and chemical weapons instructors
  • Use of Police Service Dogs
  • Deployment of less lethal/chemical munitions
  • Warnings to crowds
  • Training requirements to perform specialty duties
  • Formal Emergency Medical Response Team status

79. The National Tactical Troop Training Committee was formed to ensure the existing training courses are current and to oversee the development of new public order training courses (arrest team, bicycle team response, object removal teams).

80. The Critical Incident Program is also working with several other major Canadian police agencies to formalize a training program for public order liaison/negotiators to deal with protestors and activist groups in a proactive manner before, during and after an event to minimize confrontation. It is now standard practice to use negotiation-trained personnel or those assigned to specialty liaison teams to perform a similar duty.

Summit of the Americas

81. The Commission reviewed a complaint regarding the actions of some RCMP members at the April 2001 Summit of the Americas (SOA) Conference in Québec City. This complaint involved the treatment of protestors by the RCMP. At the SOA Conference, the RCMP used baton rounds and tear gas to disperse protestors when a section of the perimeter security fence had been breached, which posed a threat to the Internationally Protected Persons in attendance.

82. The Commission recommended clarifying the policy on warnings to allow sufficient time for protestors to vacate an area prior to using force to remove them. The RCMP Commissioner agreed with the majority of the findings. (It should be noted that this event took place before the Commissioner had responded to the Commission's report on the events at the APEC conference.)

83. The RCMP has incorporated some of the Commission Chair's recommendations on policy. For example, all members, immediately before assignment to an event such as the SOA, must undergo instruction in existing tactical operations policy, and must demonstrate knowledge of it annually. Moreover, current instruction on warnings given at the Tactical Troop Commander's pilot course will be reviewed and modified to reinforce the importance of allowing a crowd sufficient time to disperse.


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National Defence - Somalia Inquiry

84. Following the events in Somalia in 1993 a number of individuals were charged in respect of the death of a Somali teenager. All proceedings related to the incident have been concluded with the exception of those against MCpl Matchee who has yet to stand trial for the murder and torture of Shidane Arone, as he has been declared unfit to stand trial. Reviews take place every two years to determine whether he is fit to stand trial pursuant to section 202.12 of the National Defence Act, to determine whether sufficient evidence can be adduced to put the accused person on trial.

Article 14: Redress, compensation and rehabilitation

85. One of the integration programs for Canadian permanent residents, Immigrant Settlement and Adaptation, helps immigrants, including refugees, settle, adapt and integrate into Canada by supporting orientation, para-professional counselling, referral to professional services in the community, etc. For example, in 2003-04, $307,602 in contribution funding was provided under this program to the Canadian Centre for the Victims of Torture to assist newcomers to Canada who had been victims of torture prior to their arrival in Canada.

86. The Government of Canada also currently provides $60,000 per annum in funding to the United Nations Voluntary Fund for Victims of Torture.

Article 16: Prevention of other acts of cruel, inhuman or degrading treatment or punishment

87. Canada's Fourth Report had noted that section 43 of the Criminal Code, which provides a limited justification in cases where a parent or person acting in the place of a parent uses reasonable force in the correction of a child, was the subject of a legal challenge under several provisions of the Canadian Charter of Rights and Freedoms. At the time of the Fourth Report, the matter was on appeal to the Supreme Court of Canada. On 30 January 2004, in the case of Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), the Supreme Court upheld the legislation. According to the Court, limitations in the statutory and case law provided adequate procedural safeguards to protect the right to fundamental justice and the provision did not authorize the use of force likely to cause harm. The requirement that any force used must be reasonable also ensured that criminal liability would apply in appropriate cases. Further, provided that any force met the statutory reasonableness requirement, it could not be said that it amounted to cruel or unusual treatment or punishment. Finally, taking into account the need to provide a safe environment for children, the need for appropriate guidance and discipline, and the fact that, absent the justification, Canada's criminal law of assault would apply even to the most minor application of force, the justification did not offend the constitutional prohibition on discriminatory measures[6]. The Government of Canada continues to maintain its previously-stated policy in support of measures that advocate against the use of corporal punishment of children, but it also recognizes the need for limitations on the criminal law of assault insofar as it would otherwise apply in such cases. It also notes that, in addition to the application of the criminal law in cases of child-abuse, extensive child-welfare and child-protection legislation remains in effect at both the federal and provincial levels.

Note:

[1] All federal legislation can be found at: http://laws.justice.gc.ca/en/a-11.7/2092.html. http://laws.justice.gc.ca/en/C-46/41632.html.

[2] Definition of "terrorist activity" at section 83.01 (1) http://laws.justice.gc.ca/en/C-46/41632.html.

[3] The full text of all the judgments rendered by the Supreme Court of Canada can be found at the following website addresses: http://www.canlii.org or http://www.lexum.umontreal.ca/csc-scc/en/index.html.

[4] As of December 12, 2003, the Canadian Border Services Agency has replaced CIC as a member of the Interdepartmental Operations Group.

[5] The Office of the Solicitor General was incorporated with the new Department of Public Safety and Emergency Preparedness Canada in early 2004.

[6] Full text of the judgment is available on-line at: http://www.lexum.umontreal.ca/csc-scc/en/rec/index.html.

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