Canada has ratified The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) but not the Optional Protocol to the Convention.
Adoption: The CAT was adopted and opened for signature, ratification, and accession by General Assembly (resolution 39/46) on 10 December 1984. An Optional Protocol was adopted on 18 December 2002 (resolution A/RES/57/199) and entered into force on 22 June 2006.
Entry into force: 26 June 1987.
Number of signatories and ratifications/accessions: As of February 2021, there are 171 state parties to the Convention. An additional 5 states have signed but not ratified the Convention. There are 91 state parties to the Optional Protocol to CAT. An additional 13 states have signed but not ratified the Optional Protocol.
The Convention promotes, protects, and ensures “the inherent dignity of the human person” providing that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Unlike other international agreements and declarations condemning the practice of torture, the CAT provides a definition of torture. State parties are required to “take measures to end torture within their territorial jurisdiction, and to criminalize all acts of torture.” In addition, they are forbidden from “expelling, returning, or extraditing a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.”
The Convention established the Committee Against Torture to review reports submitted by State parties in order to “monitor State compliance with Convention obligations, investigate allegations of systematic violations by State parties, make recommendations for improving compliance, and submit annual reports to CAT parties and the UN General Assembly.”
The Optional Protocol to the Convention establishes “a preventive system of regular visits to places of detention, convinced that the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment can be strengthened by non-judicial means of a preventive nature.”
The CAT was adopted by the General Assembly of the United Nations on 10 December 1984 (resolution 39/46). Consisting of 33 articles, the Convention entered into force on 26 June 1987 after it had been ratified by 20 states.
The Optional Protocol was adopted on 18 December 2002, after the UN General Assembly determined that further measures are necessary to achieve the purpose of the Convention. The Optional Protocol entered into force on 22 June 2006.
Canada has ratified the Convention but not the Optional Protocol.
The development of the CAT followed decades of horrific abuses and atrocities, plus growing efforts made by Amnesty International and other organizations to protect human rights, “recognizing torture as a crime against humanity, and calling upon regimes to respect, implement, and improve the national and international laws prohibiting torture.”
Between 1968 and1980, Amnesty gathered reports from all over the world of people being tortured, and launched their first campaign against torture in 1972. In 1973, the UN denounced torture and in 1975 adopted a non-binding Declaration against Torture (the “Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”), proclaimed as a “guideline for all States and other entities exercising effective power.” However, depending upon voluntary domestic measures to uphold such guidelines was considered unrealistic. In response, Amnesty and others argued a need to adopt a legally binding Convention.
In 1977, the United Nations General Assembly took the first step toward the drafting and adoption of a legally binding instrument on torture, and used the principles enunciated in the 1975 Declaration as a guide for the Convention. The General Assembly adopted the CAT in 1984. After being ratified by 20 states, the Convention entered into force on 26 June 1987.
The CAT’s prohibition of torture was absolute: “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.” This blanket prohibition was viewed by the drafters of the CAT as “necessary if the Convention is to have significant effect, as public emergencies are commonly invoked as a source of extraordinary powers or as a justification for limiting fundamental rights and freedoms.”
The purpose of the Convention is to affirm the right of every person not to be “subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
The preambular paragraphs of the Convention recall relevant parts of the UN Charter, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the 1975 Declaration against Torture, in order to affirm the equal and inalienable rights of all members of the human family, and the inherent dignity of the human person, as well as provisions that specifically provide that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Accordingly, State parties “shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.”
Some of the obligations of State parties include:
- Outlawing torture or other cruel treatment in all circumstances, and punishing acts of torture with appropriate penalties;
- Prohibiting their nationals from engaging in torture within territories not under their jurisdiction.
- Ensuring that education and information regarding the prohibition against torture are included in the training of public officials involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.
- Ensuring that their legal systems provide victims of torture [with] the ability to obtain civil redress in the form of fair and adequate compensation including the means for as full rehabilitation as possible.
- Submitting a report to the committee detailing the “measures it has taken to give effect to the provisions of CAT [within a year of ratification], as well as supplementary reports every four years on any new measures taken, in addition to any other reports the Committee may request.”
Canada has ratified the Convention but not the Optional Protocol.
Canada signed the CAT on 23 August 1985, and ratified the Convention on 24 June 1987.
On 13 November 1989, Canada made declarations under article 21 & 22 of the Convention, “recognizing the competence of the Committee against Torture to receive and consider communications (complaints) whereby a state party claims that another state party is not fulfilling its obligations under the Convention (article 21), and to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State party of the provisions of the Convention (article 22).”
Although Canada was involved in its drafting, Canada has not signed the Optional Protocol, which establishes “a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.” In May 2016, then Foreign Minister Stéphane Dion stated that the Optional Protocol “will no longer be optional for Canada in the future”, and that Canada would begin a process to join it. However, since that time, progress towards the goal has been exceedingly slow and to date the country has still not signed the Protocol. However, in February 2021, the Canada OPCAT Project reported that Canada had joined Convention Against Torture Initiative’s (CTI) Group of Friends “an inter-governmental initiative to strengthen institutions, policies and practices and reduce the risks of torture and ill-treatment by applying the UN Convention against Torture.”
Canada’s responsibilities to the CAT are shared between the federal, provincial and territorial governments. According to the Department of Canadian Heritage, “Each report is prepared under the auspices of the Continuing Committee of Officials on Human Rights, which includes representatives from all jurisdictions.”
The Committee against Torture carries out the functions of monitoring State compliance with Convention obligations, investigating allegations of systematic CAT violations by State parties, making recommendations for improving compliance, and submitting annual reports to CAT parties and the UN General Assembly.
Through the Secretary-General of the United Nations, States Parties must submit reports to the Committee on measures they have taken to give effect to their undertakings under the Convention, within one year after the entry into force and thereafter at least every four years or whenever the Committee so requests.
The Secretary-General of the United Nations shall transmit the reports to all States Parties. The Committee may decide to include any comments in its annual report, together with the observations thereon received from the State party concerned. According to the CAT, “If the Committee receives reliable information which appears to contain well-founded indications that torture is being systematically practiced in the territory of a State party, the Committee shall invite that State party to co-operate in the examination of the information and to this end to submit observations with regard to the information concerned.”
Canada submitted its seventh report (CAT/C/CAN/7) to the Committee on 5 August 2016. The report focused on “key measures adopted in Canada to enhance implementation of the Convention since Canada’s last appearance before the Committee in May 2012.”
With respect to Canada, the Committee’s most recent report (CAT/C/CAN/CO/7) was released in December 2018.
The Committee commended Canada for work on several issues including the launch of the Civilian Review and Complaints Commission for the RCMP; implementation by the Correctional Service of Canada of a national indigenous plan to respond to the needs of indigenous offenders, including the creation of aboriginal intervention centres; adoption of the National Action Plan to Combat Human Trafficking; and Canada’s continuing engagement on the issue of refugee settlement.
The Committee also welcomed “for the first time in nearly 30 years”, the convening of a meeting of federal, provincial and territorial ministers responsible for human rights, in December 2017, to discuss key government priorities related to Canada’s international human rights obligations.
The committee expressed numerous concerns including:
- conditions of detention in prisons, specifically with respect to overcrowding, insufficient food and arbitrary practices such as extended questioning, sleep deprivation and abusive strip-searches and body cavity searches;
- over-representation in prisons of members of indigenous peoples and other minority groups and a marked increase in the number of inmates with disabilities, in particular mental health disabilities and “that correctional institutions lack the appropriate capacity, resources and infrastructure to manage serious mental health conditions, a problem that is particularly acute in women’s institutions.”
- the continued use of prolonged and indefinite solitary confinement, in the form of disciplinary and administrative segregation;
- the absence of independent oversight bodies to inspect psychiatric institutions;
- exceptions to the principle of nonrefoulement in the Immigration and Refugee Protection Act;
- the lack of a clear response as to whether Canada is considering launching a full inquiry into the its handling of the transfer of hundreds of detainees to the Afghan National Defence and Security Forces during its military mission in Afghanistan;
- the impact of the Safe Third Country Agreement on potential asylum seekers arriving from the United States who currently fear deportation;
- the continued use of mandatory detention for non-citizens designated “irregular arrivals” and that the time limit for such detention is not defined by law, that there is no effective mechanism to review the lawfulness of the detention and that the medical and mental health-care services in federal immigration detention facilities are inadequate;
- the absence of prosecutions related to Canadian involvement in the alleged offences in the detention and mistreatment of Ahmad Abou-Elmaati, Abdullah Almalki and Muayyed Nureddin in Syria and Egypt and reports that Canada has been obstructing the efforts of Abousfian Abdelrazik to obtain redress for the alleged complicity of Canadian officials in his treatment in Sudan; and
- the continued and consistent reports of disproportionate levels of violence against indigenous women and girls and reports of extensive forced or coerced sterilization of indigenous women and girls including recent cases in the province of Saskatchewan.
The Committee expressed regret that Canada has not taken any measures to amend the State Immunity Act in order to ensure that all victims of torture are able to access remedy and obtain redress, wherever acts of torture have occurred and regardless of the nationality of the perpetrator or victim, as recommended previously by the Committee. The Committee requested that Canada “ensure that the principle of absolute prohibition of torture is strictly applied in accordance with article 2 (2) of the Convention, which stipulates that no exceptional circumstances whatsoever, whether a state of war or threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”
The Committee also requested Canada to “take the necessary legislative or other measures to ensure that all counter-terrorism legislation, policies and practices are in full compliance with the Convention and that adequate and effective legal safeguards are in place.” This was in reaction to concerns that even an amended Anti-Terrorism Act would still allow the Government “to bar special advocates – court-appointed lawyers with security clearance – from reviewing classified evidence on the grounds of national security.”
The Committee also invited Canada to submit its eighth periodic report by December 2022.
Congressional Research Service, Report for Congress, U.N. Convention Against Torture (CAT): Overview and Application to Interrogation Techniques, 26 January 2009, United Nations, Congressional Research Service, 7-5700, RL32438
Danelius, Hans. Introductory Note: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, The UN Audiovisual Library of International Law: Historic Archives