CCVT Reports
Report on Canada's Compliance to the Convention Against Torture (CAT)
By Ezat Mossallanejad
This year, the Canadian Centre for Victims of Torture submitted a report on Canada's compliance to the Convention Against Torture to the Government for Canada's Fourth Report on the Convention Against Torture. This report was subsequently accepted by the Government, who committed to pass it on to the United Nations Committee Against Torture in Geneva, Switzerland. In addition to the settlement and rehabilitation services CCVT provides, we have published scores of articles, essays, pamphlets and books on the issue of the global prevalence of torture and the need for rehabilitation of torture survivors. The CCVT monthly bulletin and its quarterly journal "First Light" aids community workers all over the country make their work more effective in terms of assisting survivors of torture. We have also produced two videos as educational tools in this respect.
Moreover, CCVT has also provided advocacy and public education services to people in limbo, i.e. Convention refugees and many others who are falling between the cracks due to gaps in the Immigration Act and/or the bureaucratic nature of our system (e.g., due to lack of ID documents). Being caught in limbo results in prolonged anguish and separation from loved ones, and aggravates the impact of the torture experience on survivors. In such cases, our advocacy work has included on-going contact with Canadian and UN officials, providing education, information and special counseling to refugees, lobbying the government for policy change, and on-going collaboration with sister organizations such as the Inter-Church Committee for Refugees and the Canadian Council for Refugees.
In its struggle towards the prevention of torture, CCVT has been active in monitoring national and international instruments relevant to survivors of torture, war, and organized violence. We have collaborated with the government in monitoring the implementation of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and other relevant international instruments in different countries of the world through regular communication and participation in annual consultations with the Ministry of Foreign Affairs. We have attended U.N. seminars on the prevention of torture and the rehabilitation of survivors and similar conferences in countries like Switzerland, Denmark, Ethiopia, the former Yugoslavia, Chile and Nigeria. CCVT is hoping to get consultation status with the U.N. Social and Economic Council in July 2001.
Given our knowledge and expertise on the multiplicity of physical, psychological and social issues faced by torture survivors, we welcome this opportunity to share our insights on how Canada has so far complied with the principles of the CAT.
CANADA'S COMPLIANCE
Article 1
In applying Article 1, Canada has gone beyond the CAT definition of torture by including gender-related persecution as a type of torture. The Immigration and Refugee Board (IRB) has issued guidelines on dealing with cases of female refugee claimants fearing such persecution. Examples of gender-related persecution include rape, domestic violence and persecution due to nonconformity with gender-discriminatory religious and cultural laws.
Article 2
Canada has partially complied with this article. For example, Section 291 of the Criminal Code of Canada states that torture is illegal and is considered a punishable offence in this country. However, there remains an urgent need for Canada to incorporate the CAT into the Immigration Act. At present, there is inadequate attention paid to the incorporation of the CAT into the new amendments to the Immigration Act (Bill C-31). It is very important to specifically incorporate the principle of non-refoulement to torture.
Article 3
This article is one of the most important tools of advocacy in favour of torture survivors. Article 3 explains the principle of non-refoulement, i.e. that, under no circumstances, should a person be returned to a country in which he/she will be at risk of torture. This is regarded by human rights and torture rehabilitation centres as an absolute and cannot be balanced with such considerations as danger to the security of the public or risks to national security.
Unfortunately, we have serious concerns regarding Canada's compliance with this very important article, particularly in the case of Manickavasagan Suresh, a Sri Lankan Tamil, who came to Canada in 1990 and was recognized as a Convention Refugee. However, his application for landed status was rejected, because he was deemed inadmissible to Canada on grounds of him being a risk to national security. Such decision stemmed from allegations that Mr. Suresh had links to the Liberation Tigers of Tamil Eelam (LTTE). Mr. Suresh was then subsequently made the subject of a deportation order. The Federal Court of Canada confirmed the decision of the Ministry of Citizenship and Immigration and did not pay attention to the principle of non-refoulement to torture. A leave to appeal was filed with the Supreme Court of Canada and was granted recently.
This case is a matter of grave concern to us with regards to Canada's compliance with Article 3 of the CAT. Because, in light of recent events going on in Sri Lanka, Mr. Suresh will likely be subjected to torture or death, if he is returned. As such, this decision is in direct violation of Article 3 and the principle of non-refoulement. It also sets a dangerous precedent for future cases in which refugee claimants, especially torture survivors, may be wrongly labeled as security risks and end up being deported and face torture. This is also contrary to similar decisions made by European human rights courts.
Article 4
Although, like many other countries, police violence does occur in Canada too, torture is not used here as part of a systematic, political strategy of repression and we feel lucky and proud in this regard. The issue of police violence, in our opinion, cannot be dealt with under torture, and should be dealt with on its own merit.
Article 6
We admire Canada for establishing a War Crimes Unit within the Immigration department and we commend the recent activities of the Ministry of Justice pertaining to this matter. Canada has allocated over $40 million dollars for the prosecution of war criminals and persons who have committed crimes against humanity.
Nevertheless, many problems remain in the implementation of such objectives. Even though it has been more than 12 years since Canada ratified CAT and incorporated torture into its Criminal Code, to date, there have been only a few cases of initiating prosecution for international fugitive torturers in this country. The case of Finta in 1994, which illustrates the difficulties of winning such cases, may explain this lack of prosecutions. Since then, Canada's War Crimes Unit seems to have changed its focus from criminal prosecutions to the revocation of citizenship and deportation.
We are against deportation, we are for prosecution. We strongly believe that deportation should not act as a substitute for punishment. Through deportation, war criminals could even escape prosecution and punishment and may even end up engaging in further human right violations, once they are returned to their home countries.
We strongly propose that Canada work with international law experts and non-governmental organizations to explore legal routes of prosecution of torturers, war criminals and people who have committed crimes against humanity.
Article 10
The Canadian Centre for Victims of Torture (CCVT) has provided training for IRB officers and also for officials who make PDRCC determinations. In this training, we have focused on torture as a crime against a family of nations, its impact on survivors and the need for its prevention. Such training is very much lacking for staff in enforcement centres, the police and prison authorities in Canada. Unfortunately, there remains a gap in education and training with regards to the Article 10 of the CAT.
Article 11
Detention of refugee claimants under removal orders is a matter of serious concern, due to the broad discretionary power (and the subsequent lack of accountability) given to Immigration officers in making the decision to detain persons and in interviewing detainees over set periods of time (within 48 hours, after 7 days and after every 30 days thereafter). There are two broad reasons for detention: (1) either a person is considered a danger to the public, or (2) because he/she is considered unlikely to present him/herself at their immigration hearing or for removal and deportation if the case is rejected. We have documented cases of people who are wrongly detained and kept in detention for a long period of time.
We would like to add that the post-claim risk review that is supposed to address the risks facing claimants who are not found to be refugees, is almost an empty process. The limitation period for applying is too stringent, and many failed claimants miss it, in particular those who are detained, and do not have access to regular counsel.
We currently have a very serious problem in Ontario with the detention of unaccompanied minors, who are now being detained at the Toronto Celebrity Inn, a facility designed for adults. Even immigration has admitted that it is an inappropriate place, but after five months they are still there!
Article 12
Canada has demonstrated its willingness and ability to conduct investigations into allegations of torture. In 1993, for example, the Canadian forces held an inquiry into the actions of Canadian peacekeepers in Somalia, following the deaths of two Somali men while they were in the soldiers' custody. The inquiry resulted in the prosecution and subsequent imprisonment of the soldiers involved. This, in our opinion, has sent a message to the Canadian as well as the world community on the zero percent tolerance of the Canadian government in dealing with the crime of torture.
Article 14
There is a need for public education in this regard for people who have been tortured in other countries and are now living in Canada and may have, over the course of time, become permanent residents or citizens of this society. There is no permanent system for torture survivors to ask for compensation from their torturers in their country of origin. There is also a need for legislative provisions and institutions in Canada to deal with this issue.
Article 15
There is a difference between persecution and prosecution. Sometimes, people have been prosecuted in tyrannical regimes for crimes they have not committed. Human rights activists often serve lengthy prison sentences for their non-criminal actions.
There is a need for Canada to make sure that these types of confessions and convictions are never used against genuine refugees and immigrants. Bill C-31, the draft for the New Immigration Act, so far, does not seem to note the distinction between persecution and prosecution. According to this bill, refugee claimants are automatically deemed inadmissible to Canada (and, therefore, denied access to the refugee determination system) if they have been convicted of crimes outside Canada that, if committed in Canada, would warrant a maximum term of 10 years.
Article 16
There is a need for Canada to define cruel, inhumane, or degrading treatment or punishment and to develop mechanisms for the accountability and prosecution of officers who commit such offences. We have had countless reports of such treatment being inflicted by prison authorities, detention officers, enforcement personnel, Minister's Representatives at IRB, and, occasionally, even Board members themselves.
CONCLUSION
Canada has accepted a long-term commitment towards eliminating torture, investigating its practice and supporting its victims. In fact, Canada is among the first States parties to the Convention Against Torture. Yet, although Canada has made sincere efforts towards the prevention of torture and rehabilitation of survivors, there is much work to be done for the achievement of such challenging goals. Canada ought to do more in mobilizing international communities in this respect. The recent ruling in the Suresh case may put the Canadian global leadership against torture at stake. With the intervention of various human rights organizations, it is hoped that the Supreme Court of Canada would reverse the decision and would help the government to regain its leadership position.
Canada has also consistently played an active role in the Working Group on the Optional Protocol to the CAT. The Optional Protocol proposes the creation of an international monitoring mechanism that will enable the effective implementation of the UN Convention Against Torture. Its objective is to enhance the worldwide protection of persons deprived of liberty from torture and other cruel and degrading treatment or punishment. Unfortunately, 7 years after the Protocol's initial draft, the ratification of the Optional Protocol has been hindered by debates over issues such as the requirement of unlimited access to all possible sites where torture may be occurring.
It is frustrating that the Optional Protocol was not on the agenda of the UN Commission of Human Rights (CHR) in its 55th session last year. It is expected that Canada will give voice to torture victims in the next session of CHR. The pre-requisite for this task is a genuine effort by the Canadian government to reform its own domestic legislation and regulation with regards to refugee determination, enforcement and detention.
(For the full text of this report, please contact CCVT at (416) 363-1066 or email the Executive Director)
Ezat Mossallanejad is the Policy Analyst for the Canadian Centre for Victims of Torture
Email: ezat@ccvt.org
