Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Government
of Canada
Gouvernement
du Canada
Convention against Torture and
Other Cruel, Inhuman or Degrading
Treatment or Punishment
Fourth Report of Canada
Covering the period
April 1996–April 2000
Canada’s Fourth Report on the United Nations’
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
FOREWORD
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment was adopted by the United General Assembly on December 10, 1984. Canada ratified
the Convention on June 24, 1987.
States Parties are required to report to the United Nations on measures they have taken to give effect
to the Convention. The present report was submitted to the Committee against Torture in August 2002
and covers the period of April 1996 to April 2000. It was prepared in close collaboration by the
federal, provincial and territorial governments and describes measures and initiatives taken by these
governments with respect to the Convention.
The report is published so that it can be made available to interested groups and individuals. Through its
publication, it is hoped that Canadians will be encouraged to become familiar with the measures
adopted in Canada to ensure the implementation of the Convention and to broaden their understanding
of the obligations contracted by Canada through ratification of this important international treaty.
Copies of the report, in both official languages, may be obtained free of charge from the Human Rights
Program, or at any regional office of the Department of Canadian Heritage. This report is also available
on the Human Rights Program website at: http://www.pch.gc.ca/progs/pdp-hrp/.
Human Rights Program
Department of Canadian Heritage
15-7-B
Hull QC K1A 0M5
Tel: 819-994-3458
Fax: 819-994-5252
E-mail: [email protected]
©Minister of Public Works and Government Services Canada 2002
Catalogue. No. CH4-43/2002E
ISBN 0-662-32712-8
Canada’s Fourth Report on the United Nations’
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Table of Contents
List of Acronyms
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Part I — Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Part II — Measures Adopted by
the Government of Canada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Part III — Measures Adopted by
the Governments of the Provinces* . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Newfoundland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Prince Edward Island . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Nova Scotia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
New Brunswick . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Québec . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Ontario . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Manitoba . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Saskatchewan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Alberta . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
British Columbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
56
58
64
67
73
78
83
87
90
93
Part IV — Measures Adopted by
the Governments of the Territories* . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Nunavut . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Northwest Territories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Yukon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
*
In geographical order, from east to west.
Canada’s Fourth Report on the United Nations’
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
List of Acronyms
APEC
BC
CAPRA
CCRA
CCVT
CF
CIC
CME
CTP
FGM
ICCPR
ICTR
ICTY
IERT
II&SO
IRB
LOAC
NDA
NGO
NRC
OPP
PDRCC
PEI
PFW
PRRA
PSA
RCMP
SHU
UN
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Asia-Pacific Economic Cooperation
British Columbia
Clients, Analysis, Partnerships, Response, Assessment
Corrections and Conditional Release Act (Canada)
Canadian Centre for Victims of Torture
Canadian Forces
Citizenship and Immigration Canada
Continuing Medical Education (British Columbia)
Cadet Training Program (RCMP)
female genital mutilation
International Covenant on Civil and Political Rights
International Criminal Tribunal for Rwanda
International Criminal Tribunal for the Former Yugoslavia
Institutional Emergency Response Teams
Investigation, Inspection and Standards Office (British Columbia)
Immigration and Refugee Board
The Law of Armed Conflict at the Operational and Tactical Level
National Defence Act (Canada)
non-governmental organization
National Review Committee
Ontario Provincial Police
Post Determination Refugee Claimants in Canada
Prince Edward Island
Prison for Women
Pre-Removal Risk Assessment
Police Services Act (Ontario)
Royal Canadian Mounted Police
Special Handling Unit
United Nations
Canada’s Fourth Report on the United Nations’
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Introduction
1.
On June 24, 1987, Canada ratified the United Nations Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention or the
Convention against Torture). This is Canada’s Fourth Report under the Convention, covering
the period from April 1, 1996 to April 1, 2000 (whith occasional references to developments of
special interest which occurred since that time). Part I contains general information on Canada’s
constitutional structure as it relates to the Convention. Part II updates from the Third Report the
measures undertaken at the federal level to give effect to the provisions of the Convention and
includes the response of the federal government to the concluding observations of the
Committee after the presentation of Canada’s Third Report in November 2000. Parts III and
IV include an update on measures undertaken at the provincial and territorial levels.
2.
This report reflects the main changes in federal, provincial and territorial policies, laws and
programs since the submission of Canada’s Third Report under the Convention. Unless
necessary, the information contained in Canada’s previous reports is not repeated here and
only significant changes are mentioned. For a complete picture of measures to implement the
Convention, the previous reports should be consulted as well as reports submitted under other
treaties, in particular the report submitted to the Human Rights Committee.
Consultations with Non-Governmental Organizations
3.
The Government of Canada has written to many non-governmental organizations (NGOs),
inviting them to give their views on the issues to be covered in the federal portion of this report.
These organizations were invited to provide the names of other organizations that might be
interested or to forward to them a copy of the government’s letter.
4.
Responses were received from the Canadian Council for Refugees and from the Canadian
Centre for Victims of Torture. Most of the observations made by these NGOs deal with
refugee issues and the immigration legislation that was drafted to replace the Immigration Act
— the Immigration and Refugee Protection Act (Bill C-31). These consultations were made
prior to the dissolution of Parliament in October 2000 and the Bill was not passed. The House
of Commons adopted a new Bill (Bill C-11, Immigration and Refugee Protection Act) in
June 2001, which entered into force in June 2002. The provisions of Bill C-11 are in many
aspects similar to the provisions of Bill C-31. Changes will be described in Canada’s Fifth
Report.
Introduction
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Canada’s Fourth Report on the United Nations’
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
5.
The Canadian Council for Refugees noted that, unlike the Immigration Act, Bill C-31 contains
an explicit reference to the Convention against Torture. Despite a step towards recognizing the
obligations under the Convention, the Canadian Council for Refugees indicates that the Bill
does not fully respect article 3 of the Convention because the prohibition against removing a
person to torture does not apply to people who are inadmissible on grounds of serious
criminality or security. The Council deplores the fact that there have been no prosecutions of
torturers in Canada and that there is no indication that efforts are under way to investigate
allegations of torture committed by persons in Canada. It also raises concerns about the
implementation of article 10 of the Convention for immigration officers and guards involved in
detention. The Council continues to urge the development and adoption of guidelines for
survivors of torture before the Immigration and Refugee Board (IRB). The Canadian Council
expressed concerns regarding the fact that the new Extradition Act provides that a refugee
claim submitted by a person whose extradition is requested will be determined by the Minister
of Justice in consultation with the Minister of Citizenship and Immigration, and not by the IRB
following a quasi-judicial procedure.
6.
The Canadian Centre for Victims of Torture (CCVT) indicates that, in applying article 1,
Canada has gone beyond the Convention definition of torture by including gender-related
persecution as a type of torture. Canada’s refugee determination system has been cited as an
example for the international community. This system, used by the Convention Refugee
Determination Division of the IRB to examine refugee claims, including those of alleged torture,
is non-adversarial. The CCVT, however, has raised concerns regarding instances where
hearings have, in its view, become adversarial due to the intervention of panel members, refugee
hearings officers and representatives of the Minister of Citizenship and Immigration who may,
with the concurrence of the Chair of the IRB, attend certain refugee hearings. The CCVT says
that Canada has partially complied with article 2 of the Convention. Section 269.1 of the
Criminal Code states that torture is illegal, but there remains an urgent need for Canada to
incorporate the Convention into the Immigration Act. The CCVT has serious concerns
regarding Canada’s compliance with article 3 of the Convention, since a person recognized as a
Convention refugee, but who poses a danger to public security or national security, could be
deported to a country where he/she will likely be subjected to torture or death. The CCVT
underlines that torture in Canada is not used as a part of systematic, political strategy of
repression. As for article 6 of the Convention, the CCVT deplores the fact that there have been
only a few cases of initiating prosecution for international fugitive torturers in Canada. It
indicates that Canada has changed its focus from criminal prosecutions to the revocation of
citizenship and deportation. The CCVT supports prosecution and is against deportation. As for
article 10 of the Convention, the CCVT has provided training for IRB officers and for
immigration officers who make decisions with respect to Post Determination Refugee Class in
Introduction
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Canada’s Fourth Report on the United Nations’
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Canada (PDRCC). Regarding article 11 of the Convention, the CCVT expresses concerns in
regards to detention of refugee claimants. Some people have been detained and kept in
detention for a long period of time. Another cause of concern is related to disregarding the
dignity and humiliation faced by detained refugee claimants. Concerning article 12, the CCVT
reports that Canada has demonstrated its willingness and ability to conduct investigations into
allegations of torture. Under article 14, the CCVT indicates that there is a need for public
education for people who have been tortured in other countries and are now living in Canada.
As for article 15, the CCVT mentions the need for Canada to make sure that confessions and
convictions for crimes not committed are never used against genuine refugees and immigrants.
Finally, the CCVT underlines the need to define cruel, inhuman or degrading treatment or
punishment and to develop mechanisms for the accountability and prosecution of officers who
commit such offences.
7.
The comments received from these organizations were taken into consideration in the
preparation of the federal section of this report. All the contributions received will be forwarded
to the United Nations under separate cover. Copies of all the contributions received were
forwarded to the federal departments and agencies with the main responsibilities for the
implementation of the Convention.
Introduction
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Canada’s Fourth Report on the United Nations’
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
PART I
Overview
Canada’s Fourth Report on the United Nations’
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
The Constitutional Structure of Canada
8.
Canada is a federal state made up of 10 provinces and three territories. The third territory,
Nunavut, was officially created on April 1, 1999.
9.
Pursuant to the Constitution Act, 1867, and amendments thereto, legislative powers are
divided according to subject matter between the federal government and the 10 provincial
governments. For example, Canada’s Constitution gives each province jurisdiction within its
territory over the administration of justice, property and civil rights, and hospitals. Examples of
matters within federal jurisdiction are criminal laws and procedures, naturalization and aliens,
and residual power for the peace, order and good government of Canada.
10.
The legislative, executive and judicial branches of government share responsibility for the
protection of human rights in Canada. Relevant legislation is enacted by Parliament and the
provincial and territorial legislatures, according to the division of powers described in the
Canadian Constitution. Due to this division of powers, federal, provincial and territorial
governments are all involved in the implementation of the provisions of the Convention against
Torture. Prior to ratification, the federal and provincial governments engaged in extensive
consultations which resulted in provincial governments undertaking to ensure compliance with
those provisions of the Convention falling within their exclusive authority. The legislature is
presumed to respect the values and principles enshrined in international law, both customary
and conventional. International human rights law plays an important role as an aid in interpreting
domestic law. It is also a critical influence on the interpretation of the scope of the rights
included in the Canadian Charter of Rights and Freedoms.
11.
With respect to prosecutions in Canada, constitutional responsibility is shared between the
federal and provincial governments.
12.
There is an overlap with respect to criminal law in that the federal government is responsible for
enacting criminal law and procedure which applies throughout Canada as set forth in the
Criminal Code. The enforcement of the Criminal Code, the prosecution of offences
prescribed in that Code and the administration of justice within the province are generally
matters under provincial responsibility. However, prosecutions under specific federal statutes,
such as the Crimes Against Humanity and War Crimes Act, fall generally under federal
jurisdiction.
13.
The Government of Canada has submitted a Core Document Forming Parts of the Reports
of State Parties. The Core Document examines, in detail, Canada’s constitutional structure,
political framework and general framework for the protection of human rights. The latter
Overview
5
Canada’s Fourth Report on the United Nations’
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
includes a discussion of constitutional and legislative protections for human rights, remedies
available for redress of human rights violations, and the relationship between international
human rights instruments and domestic law. This Fourth Report under the Convention should be
read in conjunction with the Core Document.
Overview
6
Canada’s Fourth Report on the United Nations’
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
PART II
Measures Adopted by
the Government of Canada
Canada’s Fourth Report on the United Nations’
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Article 2: Legislative, Administrative, Judicial or Other Measures
14.
Canada’s previous reports outlined a series of constitutional, legislative, regulatory and
administrative measures directed at preventing torture and punishing those who commit an act
of torture. These included:
•
The Canadian Charter of Rights and Freedoms and, in particular, the right not to be
subjected to any cruel and unusual treatment or punishment (s. 12), the right to life, liberty
and security of the person (s. 7), and the right not to be arbitrarily detained or imprisoned
(s. 9). Section 32 of the Charter guarantees the rights of private persons against action by
the federal and provincial legislatures and governments. This section has been interpreted
by the courts to apply to the full range of government activities, including administrative
practices and the acts of the executive branch of government, as well as to edicts of
Parliament or the legislatures.
•
Section 269.1 of the Criminal Code provides a definition of torture that is similar to the
definition contained in article 1 of the Convention. This section of the Code provides that
torture means: any act or omission by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person, for a purpose including obtaining from the
person or from a third person information or a statement; punishing the person for an act
that the person or a third person has committed or is suspected of having committed; and
intimidating or coercing the person or a third person; or for any reason based on
discrimination of any kind, but does not include any act or omission arising only from,
inherent in or incidental to lawful sanctions.
•
Section 269.1(3) of the Criminal Code establishes that it is no defence to a charge under
this section that the accused was ordered by a superior or a public authority to perform the
act or omission that forms the subject matter of the charge, or that the act or omission is
alleged to have been justified by exceptional circumstances, including a state of war, a
threat of war, internal political instability or any other public emergency.
•
Other Criminal Code offences relating to the prohibition against torture and cruel, inhuman
or degrading treatment or punishment, such as: assault; causing bodily harm with intent to
wound a person or endanger their life; murder; administering a noxious substance;
extortion; and intimidation.
•
Legislative, regulatory and administrative provisions governing the use of force by police
and correctional agencies such as the Royal Canadian Mounted Police Code of Conduct
Government of Canada
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Canada’s Fourth Report on the United Nations’
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
offences, ss. 68 and 69 of the Corrections and Conditional Release Act (CCRA), and
the Penitentiary Service Regulations.
15.
Important developments occurred since the last report presented by Canada. The Act
respecting genocide, crimes against humanity and war crimes and to implement the Rome
Statute of the International Criminal Court, and to make consequential amendments to
other Acts (Crimes Against Humanity and War Crimes Act, S.C. 2000, c. C-24) entered
into force on October 23, 2000. It implemented the Rome Statute of the International
Criminal Court (the “Rome Statute”), adopted in Rome on July 17, 1998, and replaced the
war crimes provisions of the Criminal Code. The Crimes Against Humanity and War
Crimes Act also made consequential changes to Canada’s extradition and mutual legal
assistance legislation to enable Canada to comply with its obligations to the International
Criminal Court. The Crimes Against Humanity and War Crimes Act affirms that any
immunities otherwise existing under Canadian law will not bar extradition to the International
Criminal Court or to any international criminal tribunal established by resolution of the Security
Council of the United Nations (UN). Canada has been a driving force behind the creation of
the International Criminal Court. Canada ratified the Rome Statute on July 7, 2000. Section 4
of the Act deals with genocide, crimes against humanity and war crimes committed in Canada,
and section 6 of the Act deals with genocide, crimes against humanity and war crimes
committed outside Canada. Both provide a definition of crime against humanity which includes
torture. Torture is defined in the Schedule of the Act, which reproduces article 7(2)(e) of the
Rome Statute.
16.
As a general rule, available justifications, excuses or defences under the laws of Canada or
under international law, at the time of the offence or at the time of the proceedings, may be
relied upon by persons accused of genocide, crimes against humanity, war crimes and breach
of responsibility by a military commander or by a superior (s. 11 of the Crimes Against
Humanity and War Crimes Act). However, there are exceptions. It would not be a defence
that an offence of genocide, a crime against humanity, a war crime, or a breach of responsibility
by a military commander or a superior was committed in obedience to the law in force at the
time and in the place of its commission (s. 13 of the Crimes Against Humanity and War
Crimes Act). Generally, the Act adopts the Rome Statute’s approach to the defence of
superior orders. The defence would not apply as a defence to genocide or crimes against
humanity, because these offences are per se manifestly unlawful. The defence could only apply
to war crimes if the orders are not manifestly unlawful. However, the defence of superior orders
has been restricted further under the Act. The Act provides that the defence of superior orders
cannot be based on a belief that the order was lawful where the accused’s belief was based on
information about a civilian population or an identifiable group of persons that encouraged, was
Government of Canada
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Canada’s Fourth Report on the United Nations’
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
likely to encourage or attempted to justify the commission of inhumane acts or omissions against
the population or the group (s. 14 of the Crimes Against Humanity and War Crimes Act).
17.
The Canadian Forces requires its members to obey the lawful commands of superiors. It is not
an offence to refuse to obey an unlawful command. Under section 83 of the National Defence
Act (NDA), it is an element of the offence of disobeying a lawful command that the command
be proven to be lawful. Members of the Canadian Forces are subject to the Criminal Code
and would be subject to prosecution for any act of torture or other violation of the provisions of
the Criminal Code dealing with cruel or inhuman treatment. An order to inflict torture upon a
detainee would be a crime under section 269.1 of the Criminal Code of Canada and is
punishable under section 130 of the NDA. Therefore, an order to commit an act of torture
which is refused cannot result in a successful prosecution for disobeying a lawful command.
18.
In 1997, the Canadian Forces adopted its Code of Conduct which provides explicit instructions
about respect for the Convention against Torture, the prohibition of torture and inhuman
treatment. Rule 6 says that all detained persons must be treated humanely in accordance with
the standard set by the Third Geneva Convention. Any form of abuse, including torture, is
prohibited. The Code explains that any form of physical or psychological abuse is prohibited.
19.
The Code of Conduct also requires that any breaches of the Code of Conduct or international
humanitarian law be reported without delay, and that “any attempt to cover up a breach of the
law or the Code of Conduct is an offence under the Code of Service Discipline.” The Code
recognizes that it may be difficult to report a breach, for example, if a junior ranked member
believes a member of a higher rank has committed a breach. Consequently, a number of
mechanisms for reporting are provided — either to superiors in the chain of command, military
police, a legal officer or to the independent Director of Military Prosecutions, whose office was
established in 1999.
Article 3: Expulsion or Extradition
Immigration: The Assessment of the Risk of Return before Removal from Canada
20.
The formal refugee determination process which was set out in detail in Canada’s Third Report
has not changed during this reporting period. An independent and impartial tribunal is charged
with assessing whether the claimant has established that he meets the definition of “refugee” as
described in the Convention Relating to the Status of Refugees. In addition to the formal
refugee determination process, the Immigration Act and the Regulations allow the Minister to
facilitate the admission of a person, for example, because the person could face a risk of torture
if removed to his/her country. To that effect, there are two avenues.
Government of Canada
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Canada’s Fourth Report on the United Nations’
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(a) Post Determination Refugee Claimants in Canada Class
21.
The Post Determination Refugee Claimants in Canada Class (PDRCC) is available to persons
who, although determined not to be Convention refugees, may face personal risk should they be
returned to their country of origin. The Regulations provide for some exceptions to access to
PDRCC. The PDRCC review assesses risk to life, inhumane treatment or extreme sanctions. A
positive PDRCC assessment allows persons in Canada who are not accorded refugee status
under the Convention Relating to the Status of Refugees to apply for landed immigrant status
from within Canada. PDRCC decisions are made by Post-Claim Determination Officers who
are specially trained to assess risk and who have access to information on the human rights
situation around the world.
22.
The PDRCC risk assessment process has been determined to be a viable and effective
domestic remedy by both the Committee against Torture (KKH v. Canada; VV v. Canada1)
and the UN Human Rights Committee (Adu, Badu and Nartey2).
(b) Humanitarian and Compassionate Applications
23.
In this administrative review, an immigration officer has the duty to consider any submission put
forth by the applicant and has unfettered discretion to use his/her judgment in assigning relative
weight to the facts of the case when deciding whether the application warrants approval or
refusal. A positive determination would mean that the officer is satisfied that the person should
be exempted from any regulation or that the person’s admission should be facilitated owing to
the existence of compassionate or humanitarian considerations.
24.
Humanitarian and compassionate factors considered could include family ties, presence of a
spouse in Canada, overall integration within Canadian society and personal risk should the
individual be removed from Canada.
1
K. K. H. v. Canada, Communication No. 35/1995, views adopted on 22 November 1995
(CAT/C/15/D/35/1995) ; V. V. v. Canada, Communications No. 47/1996, views adopted on 19 May 1998
(CAT/C/20/D/47/1996).
2
Kwame Williams Adu v. Canada, Communication No. 654/1995, views adopted on 18 July 1997
(CCPR/C/60/D/654/1995); Andres Badu v. Canada, Communication No. 603/1994, views adopted on
18 July 1997 (CCPR/C/60/D/603/1994); Joseph Nartey v. Canada, Communication No. 604/1994, views
adopted on 18 July 1997 (CCPR/C/60/D/604/1994).
Government of Canada
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Canada’s Fourth Report on the United Nations’
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Immigration and Refugee Protection Act (Bill C-31)
25.
Following extensive public consultations, a new Immigration and Refugee Protection Act
(Bill C-31) was tabled in Parliament on April 6, 2000. Although the Bill died on the Order
Paper when the election of November 27, 2000 was called, with Bill C-31 the government
demonstrated its commitment to maintaining Canada’s humanitarian tradition by continuing to
provide a fair hearing to people claiming persecution. At the same time, Bill C-31 proposed
strengthened provisions to protect the integrity of the refugee determination system to ensure
that protection would be offered only to people in genuine need. Bill C-31 has been replaced
by Bill C-11. The new bill incorporates a number of recent proposals from Canadians, yet
maintains the core principles and provisions of Bill C-31.
26.
Bill C-31 proposed many changes to the refugee determination process to increase its
effectiveness and integrity. One of the principal elements of the reformed process is
consolidated decision making. The criteria for granting refugee protection included grounds
outlined in the Convention Relating to the Status of Refugees and the Convention against
Torture, and risk to life or risk of cruel and unusual treatment or punishment. This consolidates
grounds for protection that are currently assessed through three separate procedures (refugee
status determination, post-determination risk review and risk-related humanitarian review) into
one procedure at the Immigration and Refugee Board (IRB). The international instruments that
have been incorporated into the refugee protection definition to be considered by the IRB
include the Convention Relating to the Status of Refugees and article 1 of the Convention
against Torture. Bill C-31 also contained a provision that would allow the Minister, through
regulations, to add additional international instruments to the refugee protection division to
accommodate changes over time.
27.
Bill C-31 proposed a Pre-Removal Risk Assessment (PRRA) to be conducted by Citizenship
and Immigration Canada (CIC) to examine potential personal risk of return, including risk of
torture. Under the proposed legislation, all persons (with certain exceptions) against whom an
enforceable removal order has been issued may make an application for protection to the
Minister of Citizenship and Immigration. This includes persons whose claims for refugee
protection has been refused but who have not yet left Canada.
Government of Canada
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Canada’s Fourth Report on the United Nations’
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Jurisprudence
28.
On January 11, 2002, the Supreme Court of Canada released its decisions in the cases of
Suresh v. M.C.I. (SCC no. 27790) and Ahani v. M.C.I. (SCC no. 27792)3.
29.
Mr. Suresh, a citizen of Sri Lanka, was found to be a Convention Refugee in 1991. He is
alleged to be a prominent fundraiser for the Tamil Tiger group known as the Liberation Tigers
of Tamil Eelam. The Solicitor General of Canada and the Minister of Citizenship and
Immigration issued a security certificate under section 40.1 of the Immigration Act alleging that
Mr. Suresh was engaging in terrorism and was a member of an organization which engaged in
terrorism. This certificate was upheld by the Federal Court. Mr. Suresh was ordered deported
in 1997 on the basis of his membership in a terrorist organization. In 1998, the Minister of
Citizenship and Immigration reviewed his case and signed an opinion that he was a danger to
the security of Canada pursuant to section 53(1)(b) of the Act. The Minister concluded that the
threat Mr. Suresh posed to Canada’s security outweighed his risk of torture upon return and
further concluded that his risk of torture was not a substantial one.
30.
Section 53(1)(b) of the Act, which reflects article 33 of the Convention Relating to the Status
of Refugees, permits a Convention Refugee to be removed to a country where that person’s
life and freedom would be threatened, if they constitute a danger to the public or to the security
of Canada.
31.
Before the Canadian courts, Mr. Suresh argued that his removal to Sri Lanka would violate
article 3 of the Convention against Torture and the Canadian Charter of Rights and
Freedoms.
32.
The Supreme Court of Canada examined the question of whether the government may,
consistent with the principles of fundamental justice (s. 7 of the Charter guarantees the right not
to be deprived of the life, liberty and security of the person except in accordance with the
principles of fundamental justice), expel a suspected terrorist to face torture elsewhere.
33.
The Court concluded that the appropriate approach is essentially one of balancing: “The
outcome will depend not only on considerations inherent in the general context but also on
considerations related to the circumstances and condition of the particular person whom the
government seeks to expel. On the one hand stands the state’s genuine interest in combating
terrorism, preventing Canada from becoming a safe haven for terrorists, and protecting public
3
The decisions can be found at: http://www.lexum.umontreal.ca/csc-scc/rec/html/suresh.en.html and at
http://www.lexum.umontreal.ca/csc-scc/fr/rec/html/ahani.fr.html.
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security. On the other hand stands Canada’s constitutional commitment to liberty and fair
process. This said, Canadian jurisprudence suggests that this balance will usually come down
against expelling a person to face torture elsewhere.”
34.
The Court has not excluded the possibility that, in exceptional circumstances, deportation to
face torture might be justified, either as a consequence of the balancing process mandated by
section 7 of the Charter or under section 1. (A violation of s. 7 will be saved by s. 1 “only in
cases arising out of exceptional conditions, such as natural disasters, the outbreak of war,
epidemics and the like.”) Generally, however, to deport a refugee, where there are grounds to
believe that this would subject the refugee to a substantial risk of torture, would
unconstitutionally violate the Charter.
35.
The Court expressed the following comments on the international norms, which as explained
above inform section 7 of the Charter:
“In our view, the prohibition in the ICCPR [International Covenant on Civil and Political
Rights] and the CAT on returning a refugee to face a risk of torture reflects the prevailing
international norm. Article 33 of the Refugee Convention protects, in a limited way,
refugees from threats to life and freedom from all sources. By contrast, the CAT protects
everyone, without derogation, from state-sponsored torture […]
“Recognition of the dominant status of the CAT in international law is consistent with the
position taken by the UN Committee against Torture, which has applied Article 3(1) even
to individuals who have terrorist associations. (…) More particularly, the Committee
against Torture has advised that Canada should ‘[c]omply fully with article 3(1) ... whether
or not the individual is a serious criminal or security risk’: see Committee against Torture,
Conclusions and Recommendations of the Committee against Torture: Canada,
CAT/C/XXV/Concl.4, at par. 6(a).”
36.
The Court concluded that Suresh made a prima facie case showing that he might be tortured
on return if expelled to Sri Lanka. Accordingly, he should have been provided with the
procedural safeguards necessary to protect his section 7 right not to be expelled to torture. The
minimal safeguards required are that the Minister must provide the refugee with all the relevant
information and advice he/she intends to rely on, as well as an opportunity to address that
evidence in writing, and, after considering all the relevant information, issue responsive written
reasons.
37.
At the same time as Suresh, the Supreme Court of Canada released its decision in Ahani and
adopted the same reasons. In this case, the Solicitor General of Canada and the Minister of
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Citizenship and Immigration have also issued a security certificate under section 40.1 of the
Immigration Act alleging that Mr. Ahani was a member of an organization which engaged in
terrorism. This certificate was upheld by the Federal Court. Mr.Ahani is a member of the
Iranian Ministry of Security and Intelligence which commits terrorist activities world-wide. He
argued that his removal would violate article 3 of the Convention against Torture and the
Canadian Charter.
38.
The Court concluded that the Minister applied the proper principles and took into account the
relevant factors in her decision that Mr. Ahani faced only a minimal risk of harm upon
deportation and that he was a danger to the public. The Court found no basis upon which to
interfere with her decision. The Court was satisfied that Ahani was fully informed of the
Minister’s case against him and was given a full opportunity to respond. It concluded that the
process accorded to Ahani was consistent with the principles of fundamental justice.
Interim Measures Request from the Committee against Torture in Cases of
Communication Based on an Alleged Violation of Article 3 of the Convention
(Mr. TPS — Communication No. 99/1997)
39.
In September 1997, TPS filed a communication with the Committee in which he alleged that his
removal to India would violate article 3 of the Convention against Torture.
40.
On December 18, 1997, the Committee requested that Canada not remove TPS to India while
his communication was under consideration by the Committee. Canada considered the request
and determined that it would not comply, given the exceptional circumstances of the case, and
removed TPS to India on December 23, 1997.
41.
The decision to remove was not taken lightly. The Minister of Citizenship and Immigration
carefully considered the possible risk to public safety and security posed by the presence of
TPS in Canada against any possible risk he faced upon return. Indeed, the Minister concluded
that there was no substantial risk of torture faced by the individual in his country of origin.
Further, a judge of the Federal Court, Trial Division, determined that the risk to TPS was not
sufficient to justify a stay of his removal. Although Canadian officials offered to monitor the
situation of the individual concerned, and advised the government of the state of return of this
intention, the individual refused this offer.
42.
In its final views, adopted on May 16, 2000, the majority of the Committee against Torture
found that Canada was not in violation of its article 3 obligations in removing TPS from
Canada.
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43.
Canada considers its obligations under international instruments seriously. Canada further
considers that an interim measure request is not an order. Nevertheless, interim measures
requests received from the Committee are given serious consideration irrespective of their legal
status. Canada recognizes the importance of interim measures requests but would favour the
adoption of rules of procedure which would ensure that these requests are made only when the
individual faces some credible risk of torture and for a limited period of time. This is particularly
important in cases where the individual may be a risk to public safety. In addition, Canada is
concerned that the Committee’s procedures do not allow States parties to adequately make
representations before interim measures requests are made, and that delays in the examination
of communications can jeopardize important state interests in protecting public safety.
44.
During its appearance before the Committee in November 2000, Canada welcomed the
Committee’s suggestion that, when faced with circumstances where compliance with an interim
measures request is difficult, Canada should present the Committee with arguments as to why a
request should not be made, or should ask that consideration of the case be expedited. Canada
considers that these suggestions address in large part the concerns which led to the deportation
of TPS. These suggestions are also consistent with recommendations made by Canada in the
context of the review of treaty bodies, including a recommendation that the Committee against
Torture and the Human Rights Committee consider augmenting their rules of procedure to
include clear criteria to govern the issuing and revocation of requests for interim protection.
Extradition
45.
On June 17, 1999, Canada’s new Extradition Act came into force. The new Act establishes
clear procedures for the extradition process and permits more flexible evidentiary requirements.
The Act permits the surrender of persons sought to states and to entities like the International
Criminal Tribunals for the former Yugoslavia and Rwanda.
46.
The extradition process under the new Act continues to have both a judicial and an executive
phase. At the judicial phase, a judge will determine if the conduct constitutes an offence in
Canada and, where the person is wanted for prosecution, if there is sufficient evidence such
that, had the conduct occurred in Canada, the person would be committed to stand trial. At the
executive phase, the Minister of Justice will decide whether or not to surrender, taking into
account all of the circumstances and any applicable ground of refusal.
47.
Under the Act, the Minister of Justice shall refuse surrender of a person sought, if the Minister is
satisfied that:
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•
•
the surrender would be unjust or oppressive having regard to all the relevant circumstances;
or
the request for extradition is made for the purpose of prosecuting or punishing the person
by reason of their race, religion, nationality, ethnic origin, language, colour, political opinion,
sex, sexual orientation, age, mental or physical disability or status, or that the person’s
position may be prejudiced for any of those reasons.
48.
The Convention Relating to the Status of Refugees excludes from its protection individuals
who have committed a serious non-political crime outside the host country. Proceedings before
the Convention Refugee Determination Division of the Immigration and Refugee Board for a
claimant who is subject to a request for extradition for an offence that is punishable by 10 years
or more in Canada (if committed here) under federal law will be stayed until a ruling on the
request for extradition.
49.
The Minister of Justice can only order extradition if the judge, following a hearing, is satisfied
with the evidence submitted. The Extradition Act states that the Minister of Justice shall
consult the Minister of Citizenship and Immigration before making a decision on extradition
when the person whose extradition is requested has claimed refugee status. The person can
make submissions to the Minister of Justice against the extradition and present facts, arguments
and documents to this end. The reasons for refusal of extradition set out in the Extradition Act
and outlined above or in the applicable treaty will apply. Furthermore, the Minister of Justice
may attach assurances and conditions to the extradition.
50.
As noted in Canada’s Second Report, the Minister’s exercise of discretion to surrender is
subject to the Canadian Charter of Rights and Freedoms, and in particular section 7 of the
Charter — the right not to be deprived of life, liberty and security of the person except in
accordance with the principles of fundamental justice. A person sought has the ability to appeal
a committal for extradition to the provincial Courts of Appeal and to the Supreme Court of
Canada, if leave is granted and judicial review of a ministerial decision to surrender is similarly
available.
Jurisprudence
51.
The Supreme Court of Canada recently released a decision with respect to the constitutionality
of the Minister of Justice’s decision to surrender to the United States of America two Canadian
citizens (Burns and Rafay) who were wanted in the State of Washington on charges of
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aggravated murder in the first degree, and who, if convicted of those crimes, could face the
death penalty4.
52.
The Supreme Court of Canada decided that to order the extradition of Burns and Rafay
without obtaining assurances that the death penalty will not be imposed would violate the
principles of fundamental justice. In the absence of exceptional circumstances, which the Court
did not define, assurances in death penalty cases are always constitutionally required.
53.
The Court did not foreclose the possibility that there may be situations where the Minister’s
objectives are so pressing, and where there is no other way to achieve those objectives other
than through extradition without assurances, that a violation might be justified. In those cases,
the Minister must show that: the refusal to ask for assurances serves a pressing and substantial
purpose; the refusal is likely to achieve that purpose and does not go further than necessary;
and the effect of unconditional extradition does not outweigh the importance of the objective.
Article 4: Criminalization of Torture
Crimes Against Humanity and War Crimes Act
54.
The Crimes Against Humanity and War Crimes Act repealed former section 7(3.71) to
(3.77) of the Criminal Code. Section 4 of the Act provides that genocide, crimes against
humanity and war crimes committed in Canada are indictable offences. The definition of a
crime against humanity includes torture and other acts that may constitute cruel, inhuman or
degrading treatment or punishment. It reads as follows:
“Crime against humanity means murder, extermination, enslavement, deportation,
imprisonment, torture, sexual violence, persecution or any other inhumane act or omission
that is committed against any civilian population or any identifiable group and that, at the
time and in the place of its commission, constitutes a crime against humanity according to
customary international law or conventional international law or by virtue of its being
criminal according to the general principles of law recognized by the community of nations,
whether or not it constitutes a contravention of the law in force at the time and in the place
of its commission.”
55.
Section 4(1.1) of the Crimes Against Humanity and War Crimes Act provides that every
person who conspires or attempts to commit is an accessory after the fact in relation to, or
4
United States v. Burns, [2001] 1. S.C.R. 293 (http://www.lexum.umontreal.ca/cscscc/en/pub/2001/vol1/html/2001scr1_0283.html.
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counsels in relation to, an act of genocide, a crime against humanity or a war crime is guilty of
an indictable offence. The Criminal Code also contains specific dispositions which deal with
parties to offences, attempts, conspiracies and accessories (ss. 20-24, 463, 464, 660).
56.
Section 4(2) of the Crimes Against Humanity and War Crimes Act also establishes the
penalty applicable to the person found guilty of committing genocide, a crime against humanity
or a war crime, or to the person who would conspire or attempt to commit, be an accessory
after the fact in relation to, or counsel in relation to these offences. Such a person shall be
sentenced to imprisonment for life, if an intentional killing forms the basis of the offence, and is
liable to imprisonment for life in any other case.
57.
Section 6 of the Crimes Against Humanity and War Crimes Act provides that genocide,
crimes against humanity and war crimes committed outside Canada are indictable offences.
The definition of a crime against humanity includes torture and other acts that may constitute
cruel, inhuman or degrading treatment or punishment. The definitions of these crimes are similar
to the definitions contained in section 4 of the Act. Section 6(1.1), similar to section 4(1.1),
provides that every person who conspires or attempts to commit, is an accessory after the fact
in relation to, or counsels in relation to, an act of genocide, a crime against humanity or a war
crime is guilty of an indictable offence. Section 6(2) sets out the applicable penalties, which are
identical to those found in section 4(2) of the Act.
National Defence Act
58.
The National Defence Act provides, in section 77(f), that it is an offence for any member of
the Canadian Forces to commit an offence against the property or person of any inhabitant or
resident of a country in which the Canadian Forces member is serving. If such an offence is
committed while the Canadian Forces member is on active service, he/she is liable to either
imprisonment for life or to a lesser punishment. In any other case, the Canadian Forces member
is liable to dismissal with disgrace or to a lesser punishment (including any punishment lower on
the scale of punishments, such as imprisonment for less than two years). Section 129 of the
National Defence Act establishes that it is an offence to contravene any provisions of the Act,
any regulations, orders or instructions for the general information and guidance of the Canadian
Forces or any part thereof, or any general, garrison, unit, station, standing, local or other
orders. Upon conviction of that offence, the member is liable to dismissal with disgrace or to a
lesser punishment. By section 130 of the National Defence Act, members of the Canadian
Forces are also subject to the provisions of the Criminal Code and all other Acts of Parliament
in Canada and abroad, and are liable to all penalties provided for in those statutes. This
includes the minimum penalties prescribed in section 235 of the Criminal Code for murder and
the provisions of section 269.1 dealing with torture.
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Article 5: Establishment of Jurisdiction
59.
Section 7(3.7) of the Criminal Code establishes the jurisdiction of Canada over the offence of
torture in all situations mentioned in article 5 of the Convention. It provides that, notwithstanding
anything in the Criminal Code or any other Act, everyone who, outside of Canada, commits an
act or omission that, if committed in Canada, would constitute an offence against, a conspiracy
or an attempt to commit an offence against, being an accessory after the fact in relation to an
offence against, or any counselling in relation to an offence against, section 269.1 of the
Criminal Code shall be deemed to commit that act or omission in Canada if:
•
•
•
•
•
60.
the act or omission is committed on a ship that is registered or licensed, or for which an
identification number has been issued, pursuant to any Act of Parliament
the act or omission is committed on an aircraft registered in Canada under Regulations
made under the Aeronautics Act, or leased without crew and operated by a person who is
qualified under Regulations made under the Aeronautics Act to be registered as owner of
an aircraft in Canada under those Regulations
the person who commits the act or omission is a Canadian citizen
the complainant is a Canadian citizen, or
the person who commits the act or omission is, after the commission thereof, present in
Canada
Section 8 of the Crimes Against Humanity and War Crimes Act sets out the bases of
jurisdiction for Canada to be able to prosecute the offences of genocide, crimes against
humanity, war crimes and breaches of responsibility that have been committed outside of
Canada. Section 8 also states that a person who is alleged to have committed genocide, crimes
against humanity, war crimes or breach of responsibility outside of Canada may be prosecuted
for that offence if:
“(a)
•
•
•
•
•
at the time the offence is alleged to have been committed
the person was a Canadian citizen or was employed by Canada in a civilian or military
capacity; or
the person was a citizen of a state that was engaged in an armed conflict against
Canada, or was employed in a civilian or military capacity by such a state; or
the victim of the alleged offence was a Canadian citizen; or
the victim of the alleged offence was a citizen of a state that was allied with Canada in
an armed conflict; or
after the offence is alleged to have been committed, the person is present in Canada.”
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61.
This provision allows for the exercise of universal jurisdiction where the accused is present in
Canada after the offence is alleged to have been committed.
Article 6: Custody and Other Legal Measures
62.
Canada’s First Report indicated that a peace officer who has reasonable grounds to believe
that a person has committed an indictable offence, such as torture, may arrest that person
without warrant for the purpose of criminal proceedings.
63.
All extradition treaties entered into by Canada and the Extradition Act provide that a
provisional warrant of arrest may be obtained to secure the physical custody of a fugitive.
However, a person arrested for extradition will be discharged if the proper supporting
documentation is not received within the period of time set out in the Extradition Act or under
the relevant treaty, or if the Minister does not issue an authority to proceed under the
Extradition Act.
Article 7: Prosecution of Offences
64.
Over the past several years, the Government of Canada has taken significant measures to
ensure that our country does not provide safe haven for war criminals. The message is clear:
those individuals who have committed a war crime, a crime against humanity or any other
reprehensible act during times of conflict, regardless of when or where these crimes occurred,
are not welcome in Canada.
65.
As a responsible member of the global community, Canada’s War Crimes Program is a priority
for the Canadian government. It is the intention of the Government of Canada that the War
Crimes Program has the ability to take action against individuals who are suspected of
committing war crimes or crimes against humanity, by using the most appropriate of six
complementary tools: extradition; transfer to the international tribunals; denial of refugee
protection; deportation and denaturalization proceedings; denial of access to Canada; and
domestic criminal prosecutions.
66.
An Interdepartmental Operations Group created in 1998 is the vehicle through which the
Government of Canada coordinates all of the war crimes operations it undertakes. One of the
purposes of the Group is to ensure that Canada complies with its international obligations. This
includes the investigation, prosecution and extradition of war criminals, as well as cooperation
with the two international tribunals set up for this purpose, namely: the International Criminal
Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda
(ICTR).
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67.
The Interdepartmental Operations Group ensures that the Government of Canada has properly
addressed all allegations of war crimes and crimes against humanity against Canadian citizens or
persons present in Canada. In order to meet this objective, the Royal Canadian Mounted
Police and the Department of Justice investigate allegations involving reprehensible acts that
could lead to a possible criminal prosecution or revocation of citizenship, while Citizenship and
Immigration Canada pursues the application of remedies under the Immigration Act.
68.
Starting in December of 1999, officials began to review all allegations against individuals
involved in genocide, war crimes and crimes against humanity. In excess of 800 files were
reviewed, most of which were active Citizenship and Immigration files. As a result of this
review, files were opened by the Department of Justice War Crimes Section for all allegations
of genocide and war crimes from international armed conflicts, most of which stemmed from the
Yugoslav and Rwandan conflicts, and for the most serious allegations of crimes against
humanity. Approximately 10 percent of the files reviewed fell within these categories, and they
are being investigated. It is rarely the case that sufficient evidence to successfully pursue a
charge will be found within Canada. Investigators almost always must conduct interviews and
examine documents abroad. Where there is evidence of torture sufficient to create a reasonable
likelihood of conviction by Canadian courts, appropriate charges will be laid.
Article 8: Extradition Agreements
69.
Under the new Extradition Act, extradition agreements, including multilateral agreements like
the Convention against Torture, that are in force and to which Canada is a party and that
contain a provision respecting the extradition of persons, are “extradition agreements” for the
purposes of the Act. The Convention may be used as the basis for extradition to another State
party.
Article 9: Mutual Judicial Assistance
70.
Canada’s Second Report noted that the Mutual Legal Assistance in Criminal Matters Act
provides the legal framework for the implementation of treaties between Canada and other
states for the purposes of fostering cooperation in the investigation and prosecution of crimes.
The Act provides for five basic forms of assistance: (1) the gathering of evidence, including
taking statements and testimony; (2) the execution of search warrants; (3) the temporary
transfer of prisoners for the purpose of testifying or providing other assistance; (4) the lending of
exhibits; and (5) assistance with respect to proceeds of crime.
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71.
Between April 1996 and April 2000, Canada entered into treaties regarding mutual legal
assistance with various countries, including Austria, Greece, Hungary, Israel, Norway, Peru,
Poland, Portugal, Romania and Ukraine. In the event of an alleged case of torture, and in
absence of a mutual legal assistance treaty, mutual legal assistance would also be available on
the basis of ad hoc administrative arrangements or on the basis of non-treaty assistance.
Article 10: Education and Training
Royal Canadian Mounted Police
72.
The Basic Training Program for new entrants into the Royal Canadian Mounted Police
(RCMP) is given to all new entrants who hold peace officer status. These peace officers are the
RCMP’s service providers who have the legal authority to search, seize and detain/arrest,
based on conditions being satisfied under the Criminal Code.
73.
Since Canada’s Third Report, the RCMP has further developed and implemented Community
Policing. Part of this philosophy is to apply to any situation a problem-solving model called
CAPRA, which is the acronym for the five words that are at the root of the RCMP’s preferred
problem-solving approach: Clients, Analysis, Partnerships, Response, Assessment.
74.
The Cadet Training Program (CTP) is based on the community policing philosophy and
CAPRA using problem-based learning as the methodology. Instead of teaching content, the
CTP teaches process so that the cadets are responsible for their own learning while a trained
facilitator guides them.
75.
The CAPRA process and scenario-based learning requires that cadets learn about different
cultures, as it is a component of the “acquiring and analyzing” portion of the problem-solving
model. The goal of the RCMP’s training approach (including cultural awareness) is to develop
continuous learners who are able to provide a police service that is inclusive of every
community, and who are respectful and compassionate in serving the unique needs of each
community. The whole nature of “process” is one of discovery and interest that supports and
encourages open mindedness, and appreciation and respect for diverse cultures. It is felt that
this aspect of the RCMP’s training mitigates against behaviour that could be termed torture.
76.
The RCMP provides training on sections of the Criminal Code which deal with the protection
of persons acting under authority, and what the Code terms “excessive force” and “use of
force.” Torture in section 269.1 of the Criminal Code is reviewed in scenario-based situations
and cadets are required to conduct further research.
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77.
The RCMP also teaches and continually reinforces the application of the Canadian Charter of
Rights and Freedoms as it applies to interviews, detention, arrests and imprisonment. The
RCMP ensures that changes to policy based on Canadian judicial decisions (case law) or any
amendments to legal statutes are communicated to all personnel through policy manuals
provided in electronic format.
78.
Charter rights are reviewed during ongoing training courses such as the Basic Investigator’s
Course, Advanced Interview and Interrogation Course, and all RCMP courses where the
subject matter includes the investigation of persons for criminal activity. The RCMP has
developed a clear operational policy concerning interviews/interrogations that makes reference
to the Convention against Torture and specifically states that: “A member will not employ any
tactic which involves the administration of or consent to cruel, inhuman or degrading treatment
or punishment of any person.”
79.
The RCMP’s continuous learning website can be found at: www.rcmp-learning.org.
Correctional Service
80.
All staff members of the Correctional Service of Canada are required to be familiar with the
constitutional, legislative, regulatory and policy framework that governs the conditions, care,
treatment and custody of federal offenders. Staff receive induction and refresher training in the
interpretation and application of those sections of the Criminal Code which give specific
authority for the use of force in the correctional context. As part of their mandatory 12-week
induction training, new correctional officer recruits are introduced to the Correctional Service of
Canada’s Use of Force Management Model, which allows for verbal intervention, conflict
resolution and negotiation to be used, where appropriate. It is the experience of Correctional
Service of Canada that effective communication, negotiation and assessment skills can, in most
cases, negate the need for the use of force. As required, refresher training includes requalification and/or certification in the use of firearms, chemical agents, restraint equipment,
batons and the physical handling of inmates. A National Use of Force Trainer’s Conference
was held in September 1999.
81.
During induction training, recruits apply case law criteria in assessing whether certain
administrative actions taken by correctional authorities constitute cruel and unusual punishment
within the meaning of section 12 of the Canadian Charter of Rights and Freedoms.
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Canadian Forces
82.
The Somalia mission taught the Canadian Forces (CF) many valuable lessons, including the
need to ensure that all CF personnel deployed on a mission more clearly understand and apply
international humanitarian law and the rules of engagement. In 1997, the CF adopted its Code
of Conduct, which provides explicit instructions about respect for the Convention against
Torture (Rule 6), the prohibition against torture and inhumane treatment. Members of the CF
are subject to the Criminal Code, and would be subject to prosecution for any act of torture
or other violation of the provisions of the Criminal Code dealing with cruel or inhuman
treatment. The Code of Conduct for Canadian Forces Personnel has been rewritten to make
it more user friendly, and an interactive CD-ROM has been developed to facilitate the teaching
of its contents.
83.
The CF have developed and published a manual entitled The Law of Armed Conflict at the
Operational and Tactical Level (LOAC) which gives detailed direction on the treatment of
prisoners of war, the sick and wounded, and civilians. Human rights standards have been
incorporated into the CF’s law of armed conflict training curriculum. LOAC training in the CF
is made up of lectures and courses delivered at all levels from recruit school and basic officer
training, up to the CF Command. LOAC scenarios have also been incorporated into army
computer-simulated exercises which are conducted from the sub-unit up to the formation
(brigade) level. Although LOAC applies as a matter of law only during armed conflicts, the CF
has adopted the policy that, as a minimum, all Canadian military personnel shall apply the spirit
and the principles of LOAC in all peace support operations other than armed conflicts.
84.
The CF are considering ways to expand the availability of LOAC instruction. Possibilities
include the development of intermediate or advanced LOAC courses, and the delivery of basic
LOAC instruction via computer-based training.
85.
To respond to the recommendations made in the Report of the Commission of Inquiry into
the Deployment of Canadian Forces to Somalia and five other reports on issues such as
military justice, the Minister of National Defence established a “Monitoring Committee on
Change” in 1997. The Monitoring Committee’s terms of reference include receiving reports on
the implementation of the recommendations contained in the March 25, 1997 Report to the
Prime Minister on Leadership and Management in the Canadian Forces; the Report of the
Special Advisory Group on Military Justice and Military Police Investigation Services; the
Report of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia; and
other change initiatives across the CF and the Department of National Defence. The
recommendations deal, inter alia, with accountability issues (e.g., military discipline and military
leadership in the context of accountability) and operational issues (e.g., the chain of command,
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the rules of engagement, operational readiness, mission planning, and overall military planning,
practical and ethical elements of military training, both general and in preparation for specific
missions).
86.
In February 2000, the Monitoring Committee reported on the status of implementation of the
recommendations in the various reports. Included is a chapter on accountability which sets out
the status of implementation of the various recommendations of the Somalia Report, with the
recommendation that “formal criteria be adopted for accountability of leaders in the Canadian
Forces,” and the recommendation that the values, principles and processes of accountability be
incorporated into education and training. The Report can be found at:
http://www.forces.ca/menu/press/Reports/monitor_com_final/eng/cover_e.htm.
Immigration Enforcement Officers
87.
Citizenship and Immigration Canada (CIC) introduced a policy entitled “The Respectful
Workplace,” as well as a values and ethics training component in its training program for
enforcement personnel. All enforcement officers are also trained in the use of force policy,
which includes legal requirements, the exercise of judgment, safety, theories related to the use
of force, and practical proficiency to an approved standard. In the near future, CIC will also be
introducing personal suitability testing for enforcement officers. All of these policy and training
initiatives are part of the Department’s ongoing commitment to ensure the safety and security of
the Canadian public, CIC clients and employees by reinforcing the professionalism of
enforcement personnel.
Funding for Victims of Torture
88.
Governments in Canada — at both the federal and provincial levels — provide funding for the
treatment of torture victims in a number of ways. There is direct financial support from federal,
provincial and municipal governments to Canadian Centres for Victims of Torture in Calgary,
Edmonton, Montreal, Ottawa, Toronto and Vancouver. In addition, the federal government
provides $60,000 to the UN Fund for Victims of Torture, which helps support a number of
these centres.
89.
A network of organizations in Canada provides related training to front-line workers, social
services workers and medical personnel. The Réseau d’intervention auprès des personnes
ayant subi la violence organisée and the Network of Counsellors & Network Committee to
Assist Survivors of War and Torture are two such agencies. Some of the member organizations
receive funding from CIC, as well as other government and voluntary sources.
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90.
One such agency, the Canadian Centre for Victims of Torture (CCVT), provides direct and
indirect services to immigrants and refugees who have experienced torture. These services
include language training, job search assistance, referrals, translation and counselling. In both
1999-2000 and 2000-01, the CCVT received in excess of $400,000 from Citizenship and
Immigration Canada to provide those services. The Government of Ontario also provides
approximately $30,000 annually to the Toronto Centre.
Article 11: Treatment of Persons Arrested, Detained or Imprisoned
Correctional Service
91.
The legislation governing the treatment of offenders sentenced to a term of imprisonment of two
years or more by the courts is the Corrections and Conditional Release Act (CCRA).
Promulgated in 1992, the CCRA replaced the now repealed Penitentiary Act and Parole
Act, and is currently under revision by the Parliamentary Sub-Committee following extensive
public and legislative review. Section 3 of the CCRA stipulates that the purpose of the federal
correctional system is to:
“. . . contribute to the maintenance of a just, peaceful and safe society by:
•
•
carrying out sentences imposed by courts through the safe and humane custody and
supervision of offenders; and
assisting the rehabilitation of offenders and their reintegration into the community as
law-abiding citizens through the provision of programs in penitentiaries and in the
community.”
92.
The Correctional Service of Canada is responsible for the safe, secure and humane control and
custody of federally sentenced offenders. As of June 2000, there were 23,400 offenders under
the supervision of Correctional Service. Approximately 58 percent of the total offender
population is incarcerated and the remainder is supervised in the community. Female offenders
represent approximately 2.75 percent of the total incarcerated population while Aboriginal
offenders represent 17 percent.
93.
Section 4 of the CCRA sets down the legislative principles upon which sentences of
imprisonment are to be administered. Based on the rule of law, these principles affirm the duty
to act fairly and reflect constitutionally entrenched Charter rights and freedoms. Section 4(e) of
the CCRA affirms that “offenders retain the rights and privileges of all members of society,
except those rights and privileges that are necessarily removed or restricted as a consequence
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of the sentence.” Finally, section 4(g) requires that correctional decisions be made in a fair and
forthright manner, and provides offenders access to an effective grievance resolution process.
Use of Force
94.
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. Section 4(d) of the
CCRA requires that Correctional Service use the “least restrictive” measures in controlling
offenders, consistent with the protection of the public, staff and offenders. 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 is proportional to the risks and circumstances. Correctional officers may use
“reasonable” and “necessary” force to: prevent or suppress the commission of an offence by an
inmate; protect themselves against unprovoked assaults; suppress riots; and prevent escape
from medium and maximum security penitentiaries.
95.
All instances of the use of force must be reported to the institutional head for review. When the
institutional head has reason to suspect that the amount of force used may have been excessive,
he/she shall formally call for an investigation.
96.
Correctional 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. The health care officer signs the “Use of
Force” form indicating that examination and treatment of inmates has been provided, as
required.
97.
The practice of videotaping use of force incidents was nationally implemented in
February 1997, in response to a recommendation made by the Commission of Inquiry into
Certain Events at the Prison for Women (Arbour Report, 1996). In May 2000, further
policy directions were issued to clarify specific responsibilities and accountabilities within
Correctional Service for ensuring that use of force incidents are thoroughly and objectively
reviewed. Under the policy, any use of force situation involving cell extractions, Institutional
Emergency Response Team deployments, major security incidents, strip searches and other
incidents where force may be necessary or expected to be used must be videotaped. The
purpose of videotaping is to determine whether the use of force was appropriate, and carried
out in accordance with policy and applicable legislation. The use of force videotape is reviewed
at the institutional, regional and national levels, and, when necessary, corrective measures are
taken as a means of ensuring compliance with policies and procedures. A copy of the videotape
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is forwarded to the Office of the Correctional Investigator (OCI)5 within 20 calendar days of
the occurrence of the incident.
Commission of Inquiry into Certain Events at the Prison for Women
98.
Canada’s Third Report contains a detailed summary of Madame Justice Arbour’s findings and
recommendations of the Commission of Inquiry into Certain Events at the Prison for
Women in Kingston (the Commission of Inquiry), submitted to the Solicitor General of Canada
in April 1996. The Commission of Inquiry investigated the circumstances surrounding a number
of events that occurred in April 1994 at the Prison for Women in Kingston. Among other
issues, the Commission’s findings of fact dealt with the segregation unit at the Prison for
Women, strip searches, body cavity searches, involuntary transfers, and the complaint and
grievance process. Madame Justice Arbour’s Report proposed a number of recommendations
to address broader systemic concerns involving compliance with the rule of law in the
management of segregation, accountability in operations, cross-gender staffing, Aboriginal
women offenders and the future of women’s corrections in Canada.
99.
Madame Justice Arbour’s report has had a major and far-reaching impact on the Correctional
Service in the development of an organizational culture more respectful of offender rights. As
noted in Canada’s Third Report, the majority of Madame Justice Arbour’s recommendations
were accepted by Correctional Service and have since been implemented. The most significant
developments to date include:
•
•
•
•
•
•
5
amendments to prohibit male staff from participating in or witnessing a strip search of a
female offender, even in emergency situations
the appointment of the first Deputy Commissioner for Women in June 1996
a provision that all National Boards of Investigation include a community member
independent of the Correctional Service, and that convening orders for Boards of
Investigation include reference to legal compliance
a prohibition against using, as a first line of response, Institutional Emergency Response
Teams consisting of male staff in women’s facilities
the appointment of a Monitor to report on the implementation of cross-gender staffing
policy
compensation to the offenders involved in the Prison for Women incident, which has been
negotiated and settled
The OCI is independent of Correctional Service Canada and acts as an ombudsman for federally sentenced
offenders. Further information on the OCI is provided later in this report.
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Developments Respecting Correctional Institutions for Women
100.
In September 1996, there were 45-50 women classified as maximum security. Since that time,
the number of maximum security federally sentenced women has decreased significantly. The
majority (93 percent) of women offenders are now at minimum and medium security
classification. Over the past two years, the number of women classified as maximum security
has averaged between 25-30.
101.
Women classified as maximum security represent approximately 7 percent of the women
offender population, compared to 12 percent of the male offender population being classified as
maximum security. The overall lower risk of women offenders is also reflected in the fact that
there is a greater proportion of women offenders in the community than incarcerated.
Approximately 60 percent of women offenders are in the community, compared to
approximately 40 percent of men offenders.
102.
Between August 1995 and January 1997, the Correctional Service of Canada opened five new
regional facilities for women offenders, including the Okimaw Ohci Aboriginal Healing Lodge
located on the Nekaneet Reserve, near Maple Creek, Saskatchewan. Prior to 1995, there was
only one federal facility for women offenders in Canada — the Prison for Women located in
Kingston, Ontario (the focus of Justice Arbour’s inquiry). All women sentenced to a federal
term of incarceration were transferred to the Prison for Women, regardless of where they lived
or had committed their offence(s). All women offenders were incarcerated in a maximum
security environment, irrespective of their individual security ratings.
103.
In 1996, shortly after most of the women at the Prison for Women were transferred to the
regional facilities, it became evident that a small portion of the population (approximately
15 percent) was unable to function in the new facilities’ community living environment. These
women required a greater degree of structure, intervention and control. As an interim measure,
Correctional Service incarcerated women offenders classified as maximum security in three
units co-located within existing male facilities in Saskatchewan, Québec and Nova Scotia.
These co-located units are physically separate from the remainder of the institution in terms of
accommodation, programs and exercise. No contact is permitted between male and female
inmates.
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104.
At the time of their transfer, the Correctional Service of Canada made a commitment to
develop a national strategy for high-risk, high-need women offenders. The Solicitor General of
Canada announced the details of a National Strategy for High Need Women Offenders on
September 3, 1999. Over the next two years, “high needs” women were to be transferred from
the Prison for Women and the units co-located in men’s institutions to specially designed
Enhanced Security Units and Structured Living Environment houses within the perimeters of the
regional women’s facilities. The Enhanced Security Units provide a high level of intervention
and supervision for approximately 30 women across Canada now classified as maximum
security. Thirty-five other offenders who have special needs and/or mental health problems will
be placed in the Structured Living Environment houses.
105.
The National Strategy included a commitment to close the Prison for Women, as well as the
units co-located within the men’s institutions, by the fall of 2001. However, on July 6, 2000,
months ahead of initial forecasts, the Solicitor General officially announced the closure of the
Prison for Women. The closing of this infamous prison after 66 years in operation is a concrete
symbol of the government’s desire to establish a more humane, fair, safe and effective approach
to the management of correctional services for women. Today, nearly all of the approximately
350 federal women offenders in custody live in the five new facilities.
Cross-Gender Monitoring
106.
Fulfilling a recommendation of the Commission of Inquiry, an independent Monitor was
appointed to assess and report to the Deputy Commissioner for Women, over a three-year
period commencing January 1998, on the impact of cross-gender staffing in the living units of
the new regional women’s facilities. Correctional Service is actively addressing all issues raised
in the reports of the independent Monitor. In its second annual report, released in
January 2000, the Monitor proposed for consultation and discussion several interim
recommendations which would permit male staff to remain in front-line positions provided
certain conditions and restrictions continue to be met. These include the following: (1) current
recruitment, screening and training policies and procedures remain in place; (2) appropriate
roles for male staff are enforced; and (3) men do not exceed 20 percent of the Primary Worker
complement.
107.
Since the implementation of cross-gender staffing at the regional facilities, there have been no
reported instances of sexual harassment, abuse or exploitation of women offenders by male
Primary Workers brought to the attention of the Correctional Service of Canada. The third and
final report will be released in 2001.
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Safeguards with Respect to Strip and Body Cavity Searches of Inmates
108.
Policies governing searches and seizure of contraband have been amended in three areas,
responding to observations or recommendations of the Commission of Inquiry. The
amendments provide for an explicit, national policy standard that requires a routine, rather than
discretionary, strip search of inmates admitted to administrative segregation or as soon
thereafter as circumstances permit, rendering the directive in line with general practice.
Amendments also include a prohibition against male staff from participating in or witnessing a
strip search of a female offender at any time, even in emergency situations.
109.
With the provision of the new policy, staff are now required to provide inmates a reasonable
opportunity to contact legal counsel prior to seeking written consent to a body cavity search. It
also requires medical professionals to perform the body cavity search in an appropriate, nonemergency environment.
Developments Respecting Conditions in Correctional Institutions for Aboriginal
Persons
110.
Canada recognizes that the over-representation of Aboriginal people in correctional institutions
is one of the most pressing matters facing effective corrections today.
111.
The Correctional Service of Canada has developed a National Strategy on Aboriginal
Corrections, which focuses on advancing effective corrections with respect to Aboriginal
persons. With culturally appropriate programs and a greater role for the Aboriginal community
in corrections, it is expected that the reintegration potential for Aboriginal offenders will be
increased, thereby enhancing the opportunities for them to be safely reintegrated into their
communities.
112.
In 1992, the Corrections and Conditional Release Act (CCRA) established sections 81 and
84 to further increase the involvement of Aboriginal communities in the provision of correctional
services to Aboriginal offenders.
113.
A comprehensive Aboriginal strategy was set out in 1997-1998 with the following components:
(1) Strengthened Institutional Programming; (2) Aboriginal Community Corrections;
(3) Resourcing; (4) Communications/Information; (5) Inter-Sectoral/Partnerships; and
(6) Aboriginal Employment. In March of 1999, the Correctional Service of Canada approved
the Framework on the Enhanced Role of Aboriginal Communities in Corrections. Funds were
approved for these programs on July 27, 2000.
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114.
Federal institutions have started introducing Aboriginal-focussed healing programs and
curriculum and have initiated the development of Healing Lodges in various parts of the country.
Currently, there are five Healing Lodges in operation and another two are under construction.
The Minister has approved construction of additional Healing Lodges to total an additional
120 beds as part of the Enhanced Role Initiative, reflective of the Service’s respect of the
physical space and programming needs of Aboriginal culture. Conversions of three existing
federal institutions are also under way.
115.
Correctional Service recognizes that Healing Lodges allow for the needs of Aboriginal
offenders under federal sentence to be addressed through Aboriginal teachings, ceremonies,
contact with Elders and children, and interaction with nature. Program delivery is premised on
individualized plans, a holistic approach, interactive relationships with the community and a
focus on release preparation.
116.
Correctional Service continues to consult with Aboriginal leaders, federal and provincial
governments, and service providers, in order to address the disproportionate rate of
incarceration of Aboriginal offenders and to develop necessary interventions. In addition,
Correctional Service is working with other federal departments, provincial agencies and
international contacts to further these objectives and developments.
Inmate Discipline
117.
Inmate discipline is intended to be corrective in nature, promoting individual responsibility and
accountability. Sanctions are applied proportionate to the seriousness of the offence and the
degree of responsibility the inmate bears for its commission. Sanctions for an offender found
guilty of a minor disciplinary offence range from a warning or a verbal reprimand to a loss of
privileges6 for up to seven days, a fine or performance of extra duties. For more serious
offences, an offender may lose privileges for up to 30 days, or be segregated from other
inmates.
118.
An Independent Chairperson conducts the hearing of a serious disciplinary offence while minor
offences are presided over by the Institutional Head. Upon appeal by the aggrieved party, the
Trial Division of the Federal Court may review the decision of the Independent Chairperson.
119.
Disciplinary segregation is a sanction imposed upon offenders charged and found guilty of a
serious disciplinary offence, and may not exceed 30 days for a single offence or 45 days for
6
Loss of privileges may include, for example, a prohibition to participate in extra-curricular activities not
indicated in the offenders’ Correctional Plan.
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multiple offences. Segregated inmates are accorded the same rights, privileges and conditions
as those extended to inmates in the general population, except those that require the association
of other inmates, or that cannot reasonably be given owing to limitations specific to the
administrative segregation area, or to security requirements.
Administrative Segregation
120.
Administrative segregation is considered an exceptional measure, to be used only for specific
safety and security reasons and only if there is no other reasonable alternative. Although the
CCRA does not specify the maximum length of time for an inmate’s stay in administrative
segregation, the Act does require that segregated inmates be returned to the general population
in the institution, or in another institution, at the earliest appropriate time.
121.
Throughout an inmate’s confinement in administrative segregation there are mandated reviews
and hearings that must be conducted at specific intervals. An inmate involuntarily placed in
administrative segregation shall receive a written explanation outlining the reasons for his
segregated status within one working day of the placement. A Segregation Review Board,
consisting of Correctional Service personnel, conducts review hearings of cases where inmates
are involuntarily segregated 5 working days after placement, on the 30th calendar day after
placement, and at least every 30 days thereafter, for as long as the inmate remains in
segregation.
122.
In order to ensure that segregated inmates understand their procedural rights, they are notified
in writing of the review dates, their right to attend and the subsequent recommendation of the
Review Board within 48 hours of the decision.
123.
An offender’s state of health and health care needs must be taken into account in all decisions
relating to administrative segregation. A written psychological or psychiatric opinion respecting
the offender’s capacity to remain in segregation is required at least once every 30 consecutive
days of segregation. Visits to segregated units by senior institutional staff, as well as health care
professionals, are also conducted on a daily basis.
124.
Following the submission of Madame Justice Arbour’s report, Correctional Service established
a Task Force on Segregation in July 1996. In January 1997, a new Commissioner’s Directive
on administrative segregation was issued that explicitly acknowledged an offender’s right to
retain and instruct counsel immediately upon placement in segregation. In 1998, this provision
was further clarified in that the delay to contact legal counsel would not exceed 24 hours.
Madame Justice Arbour’s concern that segregated offenders are entitled to one hour of daily
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exercise was also recognized. The Task Force, consisting of members from both within and
outside Correctional Service, reported its findings in March 1997.
125.
Responding to specific concerns raised by the Commission of Inquiry and consistent with the
Task Force’s advice, a number of initiatives, including national audits of segregation units,
training standards and an Enhanced Segregation Review Model were undertaken to strengthen
compliance with the procedural requirements of the law. Correctional Service implemented an
enhanced segregation review model beginning in 1997. The enhanced model includes the
designation of a Regional Segregation Oversight Manager, responsible for reviewing the case of
any inmate in administrative segregation every 60 days. The Oversight Manager monitors all
aspects of the administrative segregation review process, ensuring that segregation is used as a
matter of last resort and that segregation is run in compliance with the law.
126.
In October 2000, the Government of Canada responded to a parliamentary sub-committee on
the Conditions and Correctional Release Act (CCRA), and proposed an Enhanced
Segregation Review process that includes external membership. This process provides the
proper balance between independent adjudication and the promotion of appropriate
accountability by the Correctional Service of Canada. This model will be implemented on a
pilot basis in all regions and a detailed independent evaluation will be undertaken. The
development of the pilot may be guided by a steering committee comprised of internal and
external members.
127.
Correctional Service reports that during 1999-2000, there were 2,305 admissions to voluntary
administrative segregation and 5,588 admissions to involuntary administrative segregation. Of
those admissions to involuntary administrative segregation, 10.8 percent (603) lasted for more
than 60 days.
Special Handling Unit
128.
As the most secure facility in the Correctional Service of Canada, 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 an operational maximum security facility. With the closure of the
Prairies SHU in October 1997, Correctional Service now operates one SHU at the Regional
Reception Centre in Ste-Anne-des-Plaines, which is national in scope and operated by the
Québec Region on behalf of Correctional Service. After an inmate has been transferred to the
SHU for assessment by way of an involuntary transfer under the authority of the concerned
Regional Deputy Commissioner, formal admission and transfer from the SHU are decided by
the National Review Committee (NRC) following a thorough assessment period to determine if
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the inmate meets the criteria, or if the risk could be more appropriately managed in a maximum
security facility.
129.
The NRC submitted its annual report in May 2000, which outlines the basis upon which it
renders a decision, the timeframes during which these are executed, the population profile and
details pertaining to the duration of inmate incarceration in the SHU. It also offers a general
directory of the programs offered which meet the specific needs of their inmate population, with
the continuation of its mandate to assist SHU inmates to behave in a responsible manner, so as
to facilitate their integration in a maximum security institution.
130.
As of March 31, 2000, the SHU population of 77 inmates represented 0.6 of 1 percent of
Correctional Service’s total incarcerated male population, an increase of 10 from the previous
year.
131.
The inmates transferred to the SHU for assessment and then denied admission by the NRC are
spending on average less than four months at the SHU before being transferred out. This is
indicative of continued improvements in this area, as in 1996-1997 an average stay of
9.43 months was reported.
132.
All inmates incarcerated at the SHU have their case reviewed every four months by the NRC
to determine the maintenance of SHU status or for transfer to a maximum security facility.
133.
Overall, the SHU has experienced a substantial decrease in the timeframes for the transfer of
offenders from the SHU, following a decision by the NRC. These timeframes continue to be
monitored closely by the NRC through interim quarterly reports.
Working Group on Human Rights
134.
In May 1997, the Correctional Service of Canada established a Working Group on Human
Rights, chaired by Maxwell Yalden, former Chief Commissioner of the Canadian Human Rights
Commission and currently a member of the United Nations Human Rights Committee. The
Working Group reviewed Correctional Service’s international and domestic human rights
obligations and developed recommendations to ensure compliance with its human rights
commitments. The Working Group reported its findings and recommendations in
December 1997. A follow-up study of the human rights dimensions of community corrections
was completed in May 1999. These two reports affirm that Canada’s correctional system is a
sound reflection of the rule of law in human rights matters and that Correctional Service must
remain scrupulously vigilant in monitoring and respecting the rights of individuals under its care
and custody.
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International Relations
135.
The Correctional Service of Canada has developed a much acclaimed program of international
work in corrections and criminal justice reform and development. For example, Correctional
Service has pursued correctional reform initiatives in Lithuania and has been actively involved in
peace building efforts and humanitarian aid (e.g., a shipment of boots for correctional officers)
in Kosovo. Correctional Service has worked with its foreign counterparts to bring about
change to these justice systems through the provision of technical expertise and advice, and the
sharing of correctional knowledge and best practices. Many countries now actively seek out
Canada’s help in providing technical assistance and expert advice in support of their efforts to
develop their own corrections and criminal justice systems. Correctional Service has, over the
past years, provided technical assistance to such countries as Haiti, Namibia, Ghana, Bahamas,
Bermuda, Cameroon, Benin and Mozambique.
Immigration
136.
The Government of Canada is of the view that withholding a person’s liberty is a serious matter
and this decision should not taken lightly. The Immigration Act contains provisions that permit
detention of individuals, but it also contains legislated provisions for the review of this decision
on a regular basis. Detention facilities are accessible to the public, and detention reviews are
carried out in public.
137.
Citizenship and Immigration Canada (CIC) issued new detention policy guidelines on
October 28, 1998, to improve consistency in detention decisions made by Department officials.
These guidelines were developed in light of Canada’s domestic and international human rights
obligations, and CIC employees were given training on them.
138.
The Chair of the Immigration and Refugee Board issued “Guidelines on Detention,” effective
March 12, 1998. These guidelines were developed in light of Canada’s domestic and
international human rights obligations, and are to be applied by immigration adjudicators and
members of the Adjudication Division of the Board.
139.
Where a person is under the age of 18 years, and especially in cases of unaccompanied minors,
the decision to detain is always guided by article 3 of the Convention on the Rights of the
Child, which provides that, in all actions, the best interests of the child shall be a primary
consideration. The government acknowledges that under most circumstances, the best interests
of the child are better served by not detaining. The detention of minors is used as a last resort; a
preferred option is to have minors released into the care of provincial child welfare agencies.
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When minors are detained, CIC makes every effort to ensure that unaccompanied minors have
separate quarters from the adult population, that on-site medical staff are available, and that
suitable programs, including access to education, are provided. Children in detention are closely
monitored and have access to common areas where toys, games, television, books and outdoor
recreation activities are made available. A working group within the Department has been
formed to examine existing policies and procedures for minors, and to identify where further
guidelines, policies or practices need to be developed. Once an initial assessment has been
completed, stakeholders will be invited to participate in the process.
140.
Citizenship and Immigration Canada facilities have been visited by organizations such as the UN
High Commissioner for Refugees, the UN Special Rapporteur on the Human Rights of Migrants
(in September 2000) and the Canadian Council for Refugees. At the request of the Government
of Canada, the Inter-American Commission for Human Rights visited Canada in the fall of
1997. The Commission met privately with detainees in facilities in Toronto and Montréal and
also observed detention review hearings. The Commission concluded that the immigration
detention centres appeared to meet the generally applicable minimum standards for detention.
CIC is currently discussing with the Canadian Red Cross the possibility of establishing a formal,
structured monitoring program.
141.
Immigration officials are actively researching and examining alternatives for a more suitable
facility to replace the existing immigration detention centre in Toronto, Ontario. CIC is also
considering a renovation and building proposal to improve its detention facility in Laval,
Québec, which houses women and minor children. New facilities, as well as renovations to
existing facilities, will be in accordance with the standards for immigration detention centres.
Article 12: Prompt and Impartial Investigation, and
Article 13: Allegations of Torture
Correctional Service
142.
The Correctional Service of Canada is responsible for the safety and protection of federally
sentenced offenders under its jurisdiction from torture. It is policy to separate the offender(s)
from an alleged aggressor by transferring one or more of the parties, or through the use of
segregation to ensure the protection of the complainant. Correctional Service also monitors
existing and possible incompatibles in its offender management database.
143.
Between April 1999 and March 2000, Correctional Service recorded 75 major violent
incidents, involving eight inmate murders, two major assaults on staff, 43 major assaults on
inmates, six major inmate fights, five cases of hostage taking and 11 suicides. Investigations of
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these incidents include the provision of a more focussed mechanism for disseminating
information and direction, as well as corrective action.
144.
Correctional Service has recently established a Suicide Review Committee to examine the
findings and recommendations from individual suicide investigations and to bring summary
recommendations to the attention of senior management.
145.
Correctional Service administers a complaint and three-level grievance process. This provides
opportunities for informal resolution at the initial stage and subsequent access to higher levels of
authority. If an offender is unable or chooses not to resolve a complaint through discussions
with staff, a written grievance may be submitted to the Institutional Head or District Director. If
the offender is dissatisfied with the rendered decision or if he/she feels that action was not taken
in accordance with the decision, a written grievance may be submitted to the Regional Deputy
Coordinator. The third and final stage of the Offender Complaints and Grievances process
involves a grievance submitted to the Assistant Commissioner, Corporate Development, at
National Headquarters. The decision rendered by the third level may be appealed at court. The
offender has the option to mediate the complaint at all levels and at any stage of its progress.
146.
The grievance system embodies the principles of fairness, confidentiality and accessibility to all
offenders without negative consequences. Complaints that significantly impact retained rights
and freedoms are assigned priority for investigation, resolution and written response. The
Deputy Commissioner for Women reviews all national level grievances submitted by women
offenders.
147.
From April 1995 to March 2000, a total of 79,560 complaints and 31,362 grievances were
recorded. Of these, 94,607 complaints and grievances were resolved at the institutional level,
and 5,316 complaints were forwarded to the national level for investigation and response —
11 of which dealt with use of force. Nine of these eleven complaints were dismissed after
investigation, and the remaining two were upheld in part for reasons unrelated to the use of
force.
Office of the Correctional Investigator
148.
Offender complaints may also be made, in confidence, to the Correctional Investigator, who is
independent of Correctional Service and acts as an ombudsman for federally sentenced
offenders. Investigations can be undertaken at the Correctional Investigator’s own initiative, at
the request of the Solicitor General of Canada, or upon receipt of a complaint lodged by or on
behalf of an offender. The Correctional Investigator reports to Parliament through the Minister
of the Solicitor General of Canada. Investigators working for the Office of the Correctional
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Investigator have full access to federal penitentiaries and parole offices, as well as any
information held or controlled by Correctional Service. Each year the Correctional Investigator
processes approximately 5,000 complaints. The Correctional Investigator is also mandated to
review Correctional Service investigative reports concerning incidents where an inmate has died
or suffered serious bodily injury.
Offender Access to Legal Assistance and Privileged Correspondents
149.
Offenders are provided with reasonable access to legal counsel, to the courts and their agents,
as well as appropriate legal and regulatory documents. An offender is informed of his/her right
to legal counsel and given reasonable opportunity to retain and instruct legal counsel, without
delay:
•
•
•
•
•
150.
upon arrest
prior to a disciplinary hearing on a serious offence
prior to consenting to a body cavity search
following notification of an involuntary transfer or completion of an emergency transfer, and
in any case within not more than 24 hours following placement in administrative segregation
Offenders may write to a number of privileged correspondents under sealed envelope.
Privileged correspondents include, but are not limited to: Members of Parliament, Provincial
Legislatures and the Canadian Senate; the Canadian Human Rights Commission; Official
Languages, Information and Privacy Commissioners; legal counsel; court judges and provincial
ombudspersons. Offenders also have recourse to the Federal Court.
Royal Canadian Mounted Police Public Complaints Commission
151.
The Royal Canadian Mounted Police (RCMP) Public Complaints Commission (the
Commission) was created in 1988 as an independent, civilian agency (not part of the RCMP)
with a mandate to oversee Canada’s national police force. The Commission receives
complaints from the public about the conduct of members of the RCMP and, pursuant to the
legislation, initially must refer these to the RCMP for investigation and disposition. If the person
who made the complaint (the complainant) is not satisfied with how the RCMP has dealt with
the complaint, he/she has the right to ask for an independent review. The Commission may also
initiate investigations, public hearings and hearings in the public interest.
152.
The mandate of the Commission is set out in Parts VI and VII of the Royal Canadian
Mounted Police Act. Its main activities are:
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•
•
•
153.
receiving complaints from the public
reviewing the RCMP disposition of complaints when requested to do so by complainants
who are not satisfied with the RCMP’s disposition of their complaints, and
conducting investigations and hearings
Complaints may arise as follows:
•
•
•
from members of the public, directly to the RCMP
from members of the public, to the Commission or to provincial policing authorities, and
if initiated by the Chair of the Commission
154.
The Commission is not a decision-making body; rather, it submits reports to the RCMP
Commissioner that may include recommendations after public complaints have been
investigated and/or reviewed. These reports are forwarded to the Solicitor General, who is the
Minister responsible for the RCMP. Such recommendations may deal with specific matters of
conduct or address broad issues relating to RCMP policy and practice. The Commission
carries out its functions as objectively as possible. When evaluating a complaint, the
Commission does not act as an advocate either for the complainant or for members of the
RCMP. Rather, its role is to conduct an independent inquiry and reach objective conclusions
based on the available information.
155.
There are about 2,500 complains a year. Approximately half of these are made directly to the
Commission, which then refers them to the RCMP. The vast majority of these complaints are
resolved by the RCMP to the satisfaction of complainants and without the necessity of further
involvement on the part of the Commission. The Commission receives approximately
250 requests for review each year. For the most part, the Commission’s reviews support the
disposition of the complaints by the RCMP. However, in about a quarter of these review cases,
the Commission disagrees with the RCMP disposition of the complaint and may make
recommendations to remedy shortcomings of policy and procedure. These recommendations
can result in a range of corrective actions applied to individual situations, as well as broader
policy changes with application across the RCMP.
Reviews
156.
Each complaint is dealt with as follows: first, the RCMP conducts an investigation; and then, the
Commissioner of the RCMP reports the results of the investigation to the complainant. If the
complainant is not satisfied with the RCMP disposition of the complaint and has asked for a
review by the Commission, then the Commission Chair may ask the RCMP or the Commission
to investigate further, that is, if the initial investigation seems to have been inadequate or if the
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Chair considers that further inquiry is warranted. The Commission Chair may also initiate his/her
own investigation in the public interest; or the Commission Chair may hold a public hearing.
157.
If the Chair of the Commission is satisfied with the RCMP’s disposition of a complaint, the
Chair reports this finding in writing to the complainant, the RCMP members involved, the
Commissioner of the RCMP and the Solicitor General.
158.
If the Chair of the Commission is not satisfied, he/she sends an interim report to the
Commissioner of the RCMP and to the Solicitor General. This report is treated as follows: first,
the Commissioner of the RCMP informs the Chair and the Solicitor General in writing of any
action to be taken in response to the Chair’s findings and recommendations, including the
rationale for decisions not to take any action. Following this, the Chair prepares a final report
that includes the text of the Commissioner’s response, as well as the Chair’s final
recommendations, if any, and sends it to the complainant, the RCMP members involved, the
Commissioner of the RCMP and the Solicitor General.
Hearings
159.
The Chair of the Commission has the discretion, at any time, to institute a public hearing or to
inquire into a specific complaint. However, this usually happens after information gathered
during an RCMP or Commission investigation has been weighed. The Commission Chair can
also exercise discretion, when he/she deems it advisable in the public interest, to inquire into a
complaint about conduct whether or not there was a prior investigation by the RCMP. This is
called a public interest hearing. A hearing panel of one or more members of the Commission is
then established to conduct the hearing.
160.
An interim report by the panel sets out its findings, and makes recommendations to improve
RCMP operations or to correct inadequacies that may have led to the complaint. The hearing
panel sends its interim report to the Commissioner of the RCMP, the Solicitor General, the
complainant, the RCMP member(s) complained against, and members of the public who ask to
be informed.
161.
The RCMP Commissioner is required to respond to the report indicating whether the RCMP
will act on the report’s findings and recommendations. If the Commissioner decides not to act
on the recommendations set out in the report, the Commissioner must include the reasons for
not doing so. After considering the Commissioner’s response, the Chair of the Commission
issues a final report.
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162.
For the period covering April 1999 to March 2000: 1,289 complaints have been forwarded to
the RCMP for investigation; 63 complaints became reviews, 66 complaints were informally
resolved by the RCMP; 10 complaints were withdrawn; and two were outside the jurisdiction
of the Commission.
Canadian Forces
163.
Following the report of the public inquiry into the deployment of the Canadian Forces (CF) to
Somalia in 1993, which was submitted to the Governor-in-Council in June 1997, and other
studies into the military justice system, the Parliament of Canada enacted significant
amendments to the National Defence Act that came into force on September 1, 1999. Among
those reforms was the establishment of an independent Director of Military Prosecutions
empowered to prefer charges and conduct the prosecutions at all courts martial. In addition, a
National Investigation Service was formed and given the task of investigating all serious
offences. The Investigation Service is comprised of trained military police investigators and is
empowered to lay charges under the Code of Service Discipline, independently of the
operational commanders.
164.
A Military Police Complaints Commission has been established with the mandate to investigate
and report on any complaints about the conduct of a member of the military police. In addition,
the military police may complain to the Commission with regard to any perceived interference in
a police investigation. This serves to ensure that the investigation of offences is carried out in an
independent and impartial manner.
165.
The courts martial of the CF members arising from the events in Somalia in 1993 were reported
in Canada’s Third Report. In a preliminary motion at his court martial, Master Corporal
Matchee was found unfit to stand trial by reason of a mental disorder, namely, permanent,
organic brain damage. Should his condition ever improve sufficiently, Master Corporal
Matchee may be subject to a resumed trial on the charges of the second degree murder and
torture of Shidane Arone. Under Canadian law, the case must be reviewed in court every two
years to determine whether the prosecution is still in a position to adduce sufficient admissible
evidence to put the accused on trial. The most recent review concluded, on June 20, 2000, that
the prosecution may adduce such evidence. The charges are therefore still before the court.
Immigration
166.
With respect to persons in Immigration Detention Centres, all complaints are recorded and
investigated, and the results are then communicated to the detainees. Documentation is available
to all detainees which explains these complaint procedures.
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Article 14: Redress and Compensation
167.
If torture has occurred, the individual could sue the government for damages in the Federal
Court or provincial courts. If the claim is based in whole or part on section 12 of the Canadian
Charter of Rights and Freedoms (which prohibits cruel and unusual treatment or punishment),
a court could award damages under section 24(1) of the Charter.
168.
The Crimes Against Humanity and War Crimes Act recognizes the need to provide
restitution to victims of torture. Sections 30 and 32 of this Act provide for the establishment of a
Crimes Against Humanity Fund. Monies obtained through the enforcement in Canada of orders
of the International Criminal Court for reparation, forfeiture or fines imposed are paid into the
Fund. Additional monies paid into the Fund include any donations received and the net
proceeds of the disposition of any property that is seized or restrained in relation to the
commission of a proceeds or money laundering offence under this Act and that is forfeited to
Her Majesty the Queen. As well, amounts paid or recovered as fines imposed in relation to
proceeds of crime prosecutions under this Act will be paid into the Crimes Against Humanity
Fund. The Attorney General of Canada would have the discretion to make payments out of the
Fund in accordance with a request from the International Criminal Court or to appropriate
beneficiaries, including the victims and their families.
169.
Section 672.5(14) of the Criminal Code provides for victims’ impact statements. It stipulates
that a victim of an offence may prepare and file with the court or Review Board a written
statement describing the harm done to, or loss suffered by, the victim arising from the
commission of the offence.
170.
On December 1, 1999, an Act to amend the Criminal Code (victims of crime) and another
Act in consequence came into force. The objective of this legislation was to enhance the safety,
security and privacy of victims of crime in the criminal justice system. This enactment also
recognized that victims of crime deserve a criminal justice system that treats them with courtesy,
compassion and respect and that is responsive to their needs. The key changes made to the
Criminal Code were the following:
•
•
•
to ensure that victims are informed about opportunities to prepare a victim impact statement
and permit victims to read the statement out loud in Court if they choose
to require police and judges to consider the safety of victims in all bail decisions
to make it easier for victims and witnesses to participate in trials by expanding protections
for young victims and witnesses from personal cross-examination by accused persons
representing themselves; expanding opportunities for victims and witnesses to have a
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•
171.
support person present when giving testimony; and permitting a judge to ban the publication
of the identity of victims and witnesses in appropriate circumstances, and
to require all offenders to pay an automatic victim surcharge (an additional monetary
penalty), which will increase revenue for provinces and territories to expand and improve
victim services
The grievance procedure in section 74 of the Corrections and Conditional Release
Regulations does not expressly provide for compensation if a grievance is upheld. Before
compensation would be considered, the inmate would have to show some quantifiable damage.
In that event, a decision may be made to pay compensation, either as settlement of a claim if
Correctional Service is liable, or as an ex gratia payment.
Article 15: Statements of Torture as Evidence in Proceedings
172.
Section 269.1 of the Criminal Code stipulates that in any proceedings over which the
Parliament of Canada has jurisdiction, any statement obtained as a result of the commission of
torture under this section is inadmissible in evidence, except as evidence that the statement was
so obtained.
173.
In India v. Singh (1996), 108 Canadian Criminal Cases (3d) 274, the Government of India
requested the extradition of the alleged fugitive Singh on the basis of a charge of conspiracy to
commit murder. The fugitive argued that most of the evidence relied upon by the requesting
state was inadmissible and that in any event there was insufficient evidence to support his
committal for extradition. Oliver J. of the British Columbia Supreme Court stated that, as an
extradition judge, his role was to determine whether there was sufficient evidence to order the
fugitive committed for surrender. In examining the evidence, Oliver J. said that the burden of
proving that the confessional statements were made as a result of the commission of torture
rested upon the fugitive who made that allegation. He also said that undoubtedly the individuals
who were alleged by the defence to have participated in acts of torture were officials within the
meaning of section 269.1(2)(d) of the Criminal Code. In the case of Singh’s statement, in the
absence of any denial on the part of the alleged torturers, he held that it was established, on a
balance of probabilities, that the detainee was tortured, and having regard to section 269.1(4)
of the Criminal Code, the confessional statement of the detainee was inadmissible. Oliver J.
finally denied the application for a warrant of committal pursuant to section 18 of the
Extradition Act.
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Article 16: Prevention of Other Acts of Cruel, Inhuman or Degrading
Treatment or Punishment
Corporal Punishment
174.
Section 43 of the Criminal Code provides a defence to a criminal charge to parents,
schoolteachers and other persons standing in the place of a parent, if that parent, schoolteacher
or other individual in loco parentis exercises reasonable force towards a pupil or child and if
that force is for corrective purposes.
175.
The Government of Canada’s response to the issue of corporal punishment has been two-fold.
First, through Health Canada and the Department of Justice, the government has supported
parenting education measures that advocate against the use of corporal punishment and
encourage the use of other methods of child discipline. Second, the criminal law continues to
prohibit the abuse of children. In this regard, it should be noted that Canadian children are
protected not only by criminal law, but also by provincial and territorial child protection
legislation which safeguards the welfare of children.
176.
In 1999, the Canadian Foundation for Children, Youth and the Law instituted a constitutional
challenge under the Canadian Charter of Rights and Freedoms to section 43 of the
Criminal Code. The Foundation argued that section 43 of the Criminal Code infringes upon
children’s rights under the following sections of the Charter: section 7 (the right to life, liberty
and security of the person, and the right not to be deprived thereof except in accordance with
the principles of fundamental justice), section 12 (the right against cruel and unusual treatment
or punishment) and section 15 (equality rights). The Foundation also argued that this section of
the Criminal Code was contrary to the Convention on the Rights of the Child.
177.
In its arguments, the Government of Canada specifically stated that it did not advocate or
support the use of corporal punishment as a means of child discipline and referred to its
supporting educational materials and activities. However, the government supported its existing
criminal law approach to the issue, namely, to criminalize the use of unreasonable corrective
measures by parents, teachers or others in loco parentis, but not to impose criminal sanctions
for the use of normative discipline that is undertaken in a reasonable way and that takes into
account the needs and the best interests of a child.
178.
The Court agreed with the arguments of the government and found section 43 of the Criminal
Code was constitutional. The Ontario Court of Appeal (Canadian Foundation for Children,
Youth and the Law v. Canada (Attorney General), [2002] O.J. No. 61) upheld the
constitutionality of section 43 of the Criminal Code and found that it reflects a reasonable
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balance of the interests of children, parents, teachers and Canadian society in accordance with
the Canadian Charter of Rights and Freedoms. In that case, the Court of Appeal held that
section 43 is not a legislative foundation for any state imposed punishment on a child and does
not subject a child to treatment by the state. The Court also concluded that:
“The section permits limited physical punishment of the child by a limited class of people
without the punishment being a criminal assault. . . .
“For exemption from the criminal law this section requires that the force be applied to the
child by a parent, surrogate parent or teacher. The force must be reasonable in the
circumstances which will inevitably include consideration of the age and character of the
child, the circumstances of the punishment, its gravity, the misconduct of the child giving rise
to it, the likely effect of the punishment on the child and whether the child suffered any
injuries. Finally, the person applying the force must intend it for ‘correction’ and the child
being ‘corrected’ must be capable of learning from the correction.
“. . . the state interest is to avoid the harm to family life that could come with the
criminalizing of this conduct.”
179.
The Canadian Foundation for Children, Youth and the Law is seeking leave to appeal to the
Supreme Court of Canada the judgment rendered by the Ontario Court of Appeal.
180.
An Act to amend the Criminal Code (child prostitution, child sex tourism, criminal
harassment, and female genital mutilation, S.C. 1997, c. 6) entered into force on
May 26, 1997. It provides increased protection to women and children against abuse and
exploitation. These reforms strengthen the criminal justice system’s response to child
prostitution, whether within or outside Canada, by creating tougher sentences for those who use
violence to force children into prostitution for profit, and by instituting measures to make it
easier for child victims to testify against their exploiters.
181.
The Criminal Code was also amended to specifically state that the practice of female genital
mutilation (FGM) is illegal in Canada. This amendment will serve as a useful tool in the
government’s efforts to educate Canadians regarding the health risks associated with this
practice. In addition to these Criminal Code amendments, the government is actively involved
in an educational program available to the communities where the practice is more prevalent.
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Response to Concerns and Recommendations of the
Committee against Torture Issued in November 2000
Use of Pepper Spray — Asia-Pacific Economic Cooperation (APEC) Hearing
(paragraph 58(a))
182.
In the aftermath of the Royal Canadian Mounted Police (RCMP) involvement in
demonstrations at the University of British Colombia during the Asia-Pacific Economic
Cooperation (APEC) Conference in November 1997, the RCMP Public Complaints
Commission (whose mandate is explained earlier in this report) received a large number of
complaints about the conduct of certain members of the RCMP during those events. As a
consequence, the Chair of the Commission instituted a public interest hearing into these matters.
In the conduct of its work, the hearing was expected to examine, among other things, aspects of
complaints regarding the use of force (i.e., use of pepper spray, dog handling and the use of
physical force), interference with freedom of speech and treatment of people detained at police
stations.
183.
During this hearing, various parties brought legal challenges to the Federal Court of Canada. It
was originally expected that the hearing of witnesses would be complete by the end of 1999.
However, the sheer number of witnesses to be heard and the unprecedented number of legal
and other issues that had to be dealt with meant that testimony from witnesses did not wrap up
until March 31, 2000. Between March 1999 and April 2000, the Chair, Mr. Justice Ted
Hughes, heard evidence from 156 witnesses. Final submissions from counsel were completed in
June 2000. The Public Complaints Commission’s final report on the APEC public interest
hearing, including the written response from the Commissioner of the RCMP, will soon be
made available to the Solicitor General, all parties to the hearing and to the public. It will also
be available on the Commission website: http://www.cpc-cpp.gc.ca/ereleases.asp.
Implementation of Madame Justice Arbour’s Report
184.
Madame Justice Arbour’s Report was submitted to the Solicitor General of Canada in
April 1996. The Correctional Service of Canada subsequently developed a comprehensive
action plan to respond to the recommendations of the Arbour Report.
185.
The majority of the recommendations from the Arbour Report have been implemented,
including:
•
the appointment of the first Deputy Commissioner for Women, Nancy Stableforth, in
June 1996
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•
•
•
•
•
amendment of policy to ensure that male staff never participate in or witness a strip search
of a female offender
Institutional Emergency Response Teams (IERT) consisting of male staff will not be used as
a first response in women’s facilities; also, if and when a male IERT is used as a back-up
response, their role will be to contain the situation only
a provision that all National Boards of Investigation include a community member
independent of Correctional Service and that convening orders for Boards of Investigation
include reference to legal compliance
the appointment of a Monitor to report on the implementation of cross-gender staffing
policy
compensation to the inmates involved in the Prison for Women (PFW) incident has been
negotiated and settled
186.
Several of the recommendations speak to issues which Correctional Service considers to be
ongoing operational issues, for example, the simplification of policy process, research on
women offender issues, and collaboration with provincial and territorial corrections on women
offender issues and management.
187.
As recommended by Madame Justice Arbour, a position of Deputy Commissioner of Women
was created. It was decided that the position would have functional rather than line authority. It
was felt that placing authority for federally sentenced women’s facilities outside of the regional
authority for all other facilities and programs would undermine the integration of the women’s
program into the entire correctional structure. It was also felt that a separation of the line
authority for women and male offenders would undermine the regional structure and tend to
marginalize the women offender facilities. Although the Deputy Commissioner of Women does
not have direct line authority for the women’s facilities, as the functional authority she is actively
involved in the operations of these facilities and must be consulted on all major decisions
affecting women offenders.
188.
In 1998, the Deputy Commissioner for Women issued a National Operating Protocol —
Front Line Staffing. This policy describes the approved role of male operational staff and
reiterates the commitment that no male staff will be involved in strip searches. The office of the
Deputy Commissioner for Women reviews video tapes of use of force situations and reports of
use of force with all offenders, to ensure compliance with the National Protocol. To date, the
review has not revealed any situations where male staff have either witnessed or participated in
the strip searches of women offenders. The women offenders sector of the Correctional Service
of Canada will continue to review these videos of the use of force, and any allegations of
breach of the national policy will be reviewed.
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189.
One recommendation called for independent adjudication for segregation. In October 2000, the
Government of Canada responded to a parliamentary sub-committee on the Conditions and
Correctional Release Act and proposed an Enhanced Segregation Review process that
includes external membership. The government believes this provides the proper balance
between independent adjudication and the promotion of appropriate accountability by the
Correctional Service of Canada. This model will be implemented on a pilot basis in all regions
and a detailed independent evaluation will be undertaken. The development of the pilot may be
guided by a Steering Committee comprised of internal and external members.
190.
Another recommendation in progress relates to the question of the completion of the three-year
project for independent monitoring of the cross-gender staffing policy in women’s facilities. The
Cross-Gender Staffing Monitor’s first of three annual reports was released October 9, 1998.
The second report was released on February 2, 2000, and the third report is scheduled for
release in January 2001. Correctional Service is actively addressing any issues raised in the
reports of the independent Monitor.
191.
In summary, the vast majority of recommendations from Madame Justice Arbour’s report have
been implemented or are actively being addressed on an ongoing basis. This report has had a
significant positive impact on improvements to correctional policies and programs for both
women and male offenders.
Use of Force and Involuntary Sedation During Removals (paragraph 58 (c))
192.
Government policy mandates that the removal of individuals from Canada be carried out in an
orderly and humane manner, to ensure the safety of the individual being removed, as well as any
escorting officers, flight crew and other passengers.
193.
As an example of the types of situations faced by escorting officers, some individuals who
object to being removed from Canada will react by causing a disturbance at the time of
boarding or during a flight. Such disturbances can include physical violence towards themselves
or others, shouting, screaming, spitting, and biting.
194.
Standards have been set in law enforcement situations for the restraint of individuals in custody.
These standards also apply to the removal of individuals from Canada. The use of restraining
devices is permissible in circumstances where there is no other realistic way for the escorting
officer to effect the removal in a safe and secure manner.
195.
The escorting officer must have reasonable grounds to believe that an individual poses a safety
or security risk before restraints can be used. Such grounds usually occur from a thorough
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review of the case file and all available information concerning the individual’s background and
temperament. If any force is used in the application of the restraining device, it must not exceed
the amount necessary to control an individual’s behaviour so that removal can proceed. In
cases where the use of force is necessary, the officer must comply with the reporting
requirements as set out by the Department’s Use of Force and Disengagement Policy. In
addition to restraints, protective headgear may be used if necessary to prevent individuals from
injuring themselves.
196.
With respect to the involuntary sedation of individuals, the policy and practice in this area are
under review. Currently, this is an extraordinary procedure, rarely used, which can be executed
only with the concurrence of the courts. In such cases, the sedative must be administered by a
medical doctor, who must accompany the individual and the escorting officer for the removal.
Pre-Removal Risk Assessment Serious Criminals or Security Risks
(paragraph 59(b))
197.
A risk assessment is made in all cases where it is alleged that someone may face torture upon
removal as described under article 3 of this report. Minimal procedural guarantees are
illustrated in the Suresh case. Each Bill that becomes law comes with training sessions to the
immigration officers, including those who will be responsible for risk assessment.
Prosecutions and Defences to Prosecutions (paragraphs 58(g), 58(h), 59(c)
and (d))
198.
The Committee against Torture has made the recommendation to “prosecute every case of
alleged torture in a territory under its jurisdiction where it does not extradite the alleged torturer
and the evidence warrants it, and prior to any deportation.” Most allegations that a person in
Canada has committed torture derive from decisions of the Immigration and Refugee Board that
a person is ineligible for refugee protection because there are reasonable grounds to believe that
person has committed torture. The standard of proof required for the Board to reach such a
conclusion is much lower than that required to convict a person of criminal wrongdoing in a
Canadian court. Moreover, the Board’s findings are usually based on the alleged torturer’s own
testimony before it. The Canadian Charter of Rights and Freedoms prohibits the use of such
testimony in subsequent criminal court proceedings. Canadian law also allows the accused to
remain silent during criminal investigations or prosecutions; therefore, the evidence in such cases
usually does not warrant criminal prosecution in Canada. Where there is a realistic prospect of
obtaining sufficient admissible evidence abroad, a criminal investigation will be pursued.
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199.
The Government of Canada reviewed with great attention the concern expressed in
paragraph 5(h) of the Concluding Observations with regard to defences available to an accused
torturer.
200.
With respect to the defences of autrefois acquit and autrefois convict in the context of
foreign procedures conducted for the purpose of shielding an accused from criminal
responsibility, the Government of Canada holds the following view.
201.
The general rule against “double jeopardy” exists in Canadian law as a form of special plea to a
criminal charge. A person who has previously been subject to jeopardy may raise the special
pleas of autrefois acquit or autrefois convict. Section 11(h) of the Canadian Charter of
Rights and Freedoms establishes that any person charged with an offence has the right, if
finally acquitted of the offence, not to be tried for it again, and, if finally found guilty and
punished for the offence, not to be tried or punished for it again. Given its broad wording,
s.11(h) is at least prima facie applicable to acquittals entered in foreign jurisdictions, provided
that the administration of foreign justice is capable of international respect and that the accused
is deserving of being accorded the fairness of section 11(h) because he or she was in real
jeopardy.
202.
Section 7(6) of the Criminal Code implements in legislation the constitutional safeguard in
section 11(h) of the Charter. It provides that a person who has been tried and dealt with
outside of Canada in respect of an offence in such a manner that, if that person had been tried
and dealt with in Canada, he/she would be able to plead autrefois acquit, autrefois convict
or pardon, and he/she would be able to plead any of these special pleas, then he/she may plead
such pleas in Canada in respect of a Canadian prosecution for the same offence. This provision
is clearer in excluding the possibility of a “sham” trial founding the basis for a special plea. The
foreign trial must have been conducted in such manner that, if it had been a Canadian trial, the
plea would be available. A “sham” trial would not meet this criteria.
203.
Consequently, the protection offered by section 11(h) of the Charter and section 7(6) of the
Criminal Code would not extend to “sham” proceedings. If an acquittal is a fraudulent one, the
accused was never in jeopardy and, as such, should not be protected from a second
prosecution. There has to be a real legal basis for the decision, and where a trial is a “sham,” no
proper legal basis for the original decision existed, and as such, a plea of autrefois acquit
would not be available. It is also submitted that where sentencing was conducted in a manner
which was manifestly unjust and unreasonable, punishment did not truly occur. As such,
section 11(h) would not be engaged.
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204.
The Committee against Torture also suggested that the defence that an offence was committed
in obedience of the law in force at the time be removed from the current Canadian legislation.
Section 269.1 of the Criminal Code was specifically created to fully comply with the
requirements of the Convention against Torture, and includes all the elements of article 2 of the
Convention. Nevertheless, the Canadian government is examining whether it would be
advisable to prepare further legislative measures, taking into account all of the relevant factors.
205.
Finally, the Committee recommended the removal from Canadian legislation of the defence that
an accused had a motivation other than an intention to be inhumane. An intent to be inhumane is
not an essential element of the crime of torture as created by section 269.1 of the Criminal
Code.
Investigative Body (paragraph 59 (e))
206.
Section 12 of the Canadian Charter of Rights and Freedoms provides that everyone has the
right not to be subjected to any cruel and unusual treatment or punishment. It does not
specifically use the word “torture,” but as torture is an aggravated form of mistreatment,
section 12 of the Charter also prohibits acts of torture. Section 24 of the Charter permits
anyone whose Charter rights have been infringed upon or denied to apply to a court of
competent jurisdiction for an appropriate and just remedy. Therefore, Canadian courts are
competent to receive complaints regarding allegations of torture or any cruel and unusual
treatment or punishment, and the victims can obtain redress and adequate compensation.
Training of Canadian Forces Members (paragraph 59 (f))
207.
In addition to the Code of Conduct for Canadian Forces Personnel, there are training
measures in place to ensure Canadian Forces members do not themselves commit, and can
also recognize, torture, inhumane treatment or excessive use of force when it occurs. Training of
both Canadian and international peacekeeping personnel — both military and civilian — on
international humanitarian law and human rights law is provided at the Pearson Peacekeeping
Centre and the Canadian Forces Peace Support Training Centre. A specific manual on the use
of force sets out precise instructions on the permissible degrees of force and respect for rules of
engagement of peacekeeping missions: The Law of Armed Conflict at the Operational and
Tactical Level (LOAC). In 2000, Canada released a training manual on gender and
peacekeeping, for use in training peacekeepers on a gender perspective to international
humanitarian law and peacekeeping.
208.
Additional information is provided on the Code of Conduct for Canadian Forces Personnel
and on the LOAC manual under article 10 of this report.
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Documentation
209.
The following documents are filed with the Committee, along with the present report:
•
•
•
•
•
•
Canadian Charter of Rights and Freedoms
Crimes Against Humanity and War Crimes Act
Extradition Act
Mutual Legal Assistance in Criminal Matters Act
Code of Conduct for CF Personnel
Corrections and Conditional Release Act
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PART III
Measures Adopted by
the Governments of the
Provinces
Canada’s Fourth Report on the United Nations’
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Newfoundland
Introduction
210.
This report updates the information contained in the Third Report of Canada on the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment with respect to developments in Newfoundland between April 1996 and
April 2000.
Article 2: Legislative, Administrative, Judicial or Other Measures
211.
The responsibility for the delivery of Youth Correctional Services has been shared between the
Department of Justice and the Department of Health and Community Services since
March 1996. The Division of Corrections and Community Services, Department of Justice
provides secure custody and remand services for young persons aged 12-17 years. Regional
Health and Community Service Boards now administer the remaining youth correctional
services, including: open custody (group homes and foster homes); community supervision
(probation); alternative measures (diversion from court); and the preparation of pre-sentence
reports.
212.
A major independent report on Youth Secure Custody commissioned by the provincial
government was submitted on April 1, 1996. All 57 recommendations have either been
implemented or are in the process of being implemented, including:
•
•
•
conducting exit interviews with young persons on release from custody regarding their
treatment while in custody
replacing an antiquated youth detention facility in St. John’s
promoting more avenues for young persons in custody to maintain contact with social
workers and significant others in the community
Article 10: Education and Training
213.
The Division of Corrections and Community Services has revised its policies and procedures
regarding the Use of Force continuum, and is now developing a format for delivery of this
training to correctional staff.
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214.
Clinicians who work in the mental health field are trained to diagnose and treat post- traumatic
stress disorder. This would include psychiatrists and others working in the mental health field.
Article 11: Treatment of Persons Arrested, Detained or Imprisoned
215.
The Division of Corrections is in the process of recruiting a qualified professional to conduct a
comprehensive review of all divisional policies and procedures — including those pertaining to
safety and security, and medical services, as well as offender programming and management —
to ensure that such policies are current and consistent with national/international standards and
conventions.
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Prince Edward Island
Introduction
216.
This report updates the information contained in the Third Report of Canada on the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment with respect to developments in Prince Edward Island between April 1996 and
April 2000.
Article 2: Legislative, Administrative, Judicial or Other Measures
217.
The following measures proscribe acts of torture or cruel and unusual punishment in Prince
Edward Island (PEI):
(a) The Canadian Charter of Rights and Freedoms operates in PEI, as in other provinces,
via the criminal law process. An accused charged with an offence may bring a Charter
application to the court, pursuant to sections 7, 9 or 12, as a defence or other factor that
mitigates against the charge.
(b) The Child and Family Services Act and the Adult Protection Act continue to play the
same role as reported in PEI’s submission to the First Report of Canada, that is, to
protect children from neglect and abuse, and to protect an adult who is unable to protect
him/herself.
(c) The Schools Act protects students from harsh punishment by teachers and other school
officials. Sections 6-15 of the Schools Act, Students and Parents Regulations, enable
both a principal and a school board to suspend or expel a student under limited
circumstances. These provisions set out limitations to suspension/expulsion including the
requirements of just cause as defined in these regulations, the necessity of reporting the
suspension to the school board, and the availability of an appeal process to student and
parent.
Teachers are also subject to the Criminal Code and the criminal courts dealt with two
cases involving sexual abuse complaints by students against their teachers. In both
instances, charges were laid but no convictions were entered. As a condition of their
employment, the province’s teachers are required to follow the discipline policies and
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guidelines set by the school boards. Corporal punishment is not permitted in public schools.
Every school in PEI must distribute a student handbook setting out rules for students, and
the consequences that may result from infractions.
(d) The Correctional Services Act was proclaimed in 1992, replacing the Jails Act and the
Corrections Act. The new Act governs the management and treatment of prisoners by
provincial correction’s personnel, promoting a humane standard of treatment by limiting
force to the minimum amount necessary to manage extreme situations. The Act places limits
on penalties for prisoners who violate rules. Section 24 of the Correctional Services Act
Regulations sets out the specific penalties that a centre manager (formerly known as a
jailer) may impose, including: withdrawal of privileges; performance of extra duties;
payment for damages caused by the inmate; segregation for a maximum of four days; and
forfeiture of remission time.
Segregation may be imposed for a maximum of four days but only upon approval of the
Director of Correctional Services. Section 15(f) of the Regulations impose criteria for
segregation, including: informing the inmate of the reason for segregation, and informing the
centre manager of the segregation no more than 48 hours after it has begun. Procedures
governing searches of inmates are set out in section of the Regulations. Section 15 provides
an obligation that a correction officer ensure that inmates receive adequate meals, as well as
medical attention where the need exists.
Article 3: Expulsion or Extradition
The Immigration Context
218.
Citizenship and Immigration Canada (CIC) operates an office in Charlottetown to process
refugees who arrive in PEI. CIC compiles statistics for government-sponsored refugees only,
not privately sponsored claimants. The refugees who are admitted to the province are here
mainly because of war and displacement in their homelands.
219.
CIC funds a number of settlement programs for refugees in PEI, including: a language program
through a local community college; a Resettlement Assistance Program; an income support
program; and an Immigrant Settlement and Adaptation Program that applies to all immigrants,
not just refugees. This latter program involves referring the refugees to agencies for personal
counselling, employment training, etc.
220.
The Resettlement Assistance Program is delivered by the PEI Association for Newcomers to
Canada, a local non-profit organization funded by CIC, Human Resources Development
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Canada and Canadian Heritage. Under this program, temporary accommodations, food,
money, as well as orientation to the community and Canadian currency, etc., are provided,
along with assistance with locating permanent accommodations. The Newcomers Association
also sponsors a host program where volunteers are matched up with newcomers to assist with
their orientation to the community, as well as the formation of a general support system. The
CIC income support program provides general financial assistance to refugees for one year.
221.
In 1999, 105 refugees came to PEI from Kosovo, and 62 remain after one year. In addition,
55 refugees arrived from other countries that year, including Yugoslavia, Burma, Afghanistan
and Ethiopia. In 1998, there were 38 arrivals from El Salvador and Yugoslavia. In 1997,
59 refugees arrived from Ethiopia, Guatemala, Yugoslavia, Sudan, and other countries, and in
1996, 54 arrived, mainly from Guatemala and Mexico.
222.
Most of the refugees arriving in the province were selected by immigration officials based on a
profile of how well they would likely fit into PEI society. Under a new selection system,
refugees will now be admitted on the basis of the degree of danger they are in. Many Kosovar
refugees arrived in PEI under ministerial permits, or as part of an urgent protection pilot
program.
223.
Outside additional numbers based on urgent protection or humanitarian concern, the
Government of PEI has an agreement with CIC to accommodate a certain number of refugees
per year. In the year 2000, the province agreed to accept more than 60 refugees. As of
August 2000, only 20 percent of this quota had arrived, although it is common for new arrivals
to come in the fall.
224.
As residents of the province, refugees and landed immigrants may qualify for benefits under the
Drug Cost Assistance Act and the Health and Community Services Act. While basic health
services are available to refugees and immigrants, there is a recognized need for this group of
residents to have increased access to family physicians. The practical result of a shortage of
physicians is that refugees and immigrants have trouble accessing non-emergency health
services.
225.
The Association would like to see an increase in awareness of the need for professional
counselling and support services for refugees who have experienced extreme trauma, including
torture and other human rights violations in their country of origin. The Canadian Mental Health
Association issues a directory of self-help groups in PEI, but there is currently no listing for a
group that specifically offers help to refugees.
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226.
The Canadian Centre for Victims of Torture (based in Toronto) has proposed providing
training sessions for PEI settlement workers — those who work with refugee claimants. Due to
staff changes at the Toronto organization, no training had taken place at the time of this report.
Article 7: Prosecution of Offences
227.
Prince Edward Island complies with this article as the province must enforce the prohibition
against torture in the federal Criminal Code (s. 245.4), and the prohibition against cruel or
inhuman treatment or punishment in the Canadian Charter of Rights and Freedoms (s. 12).
Article 10: Education and Training
228.
The Justice Institute of Canada, located in Prince Edward Island, trains police officers,
correction officials, conservation enforcement officers, security personnel, and other provincial
and private law enforcement officers in Atlantic Canada. Training in the use of force is given
throughout the duration of these programs to ensure that officers will learn to deal with
situations properly, and maintain a low incidence of allegations about inappropriate use of force
in PEI. The training is based on the maxim in section 25 of the Criminal Code of Canada that
officers use “as much force as is necessary,” and is consistent with law enforcement training in
other jurisdictions. Training ranges from how to use verbal strategies such as crisis intervention,
mediation and negotiation for lower intensity situations, to the use of intermediate weapons and
lethal force for persons who exhibit a high level of resistance. Theory, scenarios, computer
simulation and on-the-job training are also used to impart information and to develop skills.
Article 11: Treatment of Persons Arrested, Detained or Imprisoned
229.
The objective of this article, to prevent cases of torture of persons arrested, detained or
imprisoned, is met by PEI’s Correctional Services Act, as described under articles 2 and 13.
Article 12: Prompt and Impartial Investigation
230.
Suspected incidents of torture would be subject to police investigation as part of the
enforcement of the federal Criminal Code provision, s. 245.4. No prosecutions have taken
place under this section.
231.
In addition, two provincial laws, the Coroners Act, R.S.P.E.I. 1957, c. 10, and the Vital
Statistics Act, R.S.P.E.I. 1974, c. V-6, require special investigations where a person appears
to have died as the result of “violence,” “misadventure,” “unlawful means,” “misconduct,” or in
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other suspicious or sudden circumstances. The Vital Statistics Act requires an investigation
before a burial permit may be issued.
232.
The Coroners Act requires that any person who has reason to believe a deceased person has
died in any of the above circumstances must immediately notify the Coroner. A jail keeper or
superintendent must also notify the Coroner in the case of the death of a prisoner in a jail,
reformatory or lock-up.
Article 13: Allegations of Torture
233.
The Public Complaints Commission is an independent federal body where members of the
public can submit complaints regarding the on-duty conduct of Royal Canadian Mounted Police
(RCMP) officers. In PEI, the process begins when a member of the public complains to the
relevant police detachment. An investigator is assigned to conduct an investigation and submit a
report to the head sergeant. The sergeant then makes an internal recommendation, including a
follow-up process. If the complainant is not satisfied, he/she may appeal to the Public
Complaints Commission. The Commission reviews the complaint file and decides whether the
investigation was properly conducted, and whether the conclusion reached was justified. The
Commission then has the discretion to either ask for a follow-up from the detachment, or
conduct its own investigation.
234.
Between 1992 and 1996, approximately 88 complaints were made to provincial detachments in
PEI, and 29 complaints were made directly to the Commission. In 1997, 13 complaints were
made to provincial detachments. Three of these complaints were resolved informally after an
agreement was reached with the investigating officer. The other 10 were resolved formally
following a full investigation. Two of these complaints were submitted to the Public Complaints
Commission which determined that the investigation and recommendations were satisfactory. In
1998, six complaints were made to provincial detachments, and one to the Public Complaints
Commission. Of these seven complaints, one was resolved informally while the other six were
resolved formally. In 1999, there were five complaints to provincial detachments, and seven to
the Commission. Of these, three were resolved informally and nine formally.
235.
Currently, in PEI, there is no mechanism for a review of municipal police officers’ actions,
other than a complaint to the chief of the force involved. There is no police commission in the
province, but there is a complaint/investigation process which works as follows: when a person
complains about the conduct of a police officer, the officer in charge of public relations
investigates the complaint and reports to the chief of police.
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236.
Most complaints are resolved at this stage, but if the complainant is unhappy with the outcome
he/she can voice concerns to the Police Committee, a subcommittee of municipal councils. The
Police Committee is made up of a chair; one council member; the director of public services;
and two advisors, including the chief of police and the officer responsible for public relations.
This Committee oversees the day-to-day activities of the police force to ensure that policies and
procedures are being correctly followed. The police have a code of discipline and, depending
upon the nature of the complaint, the process for handling complaints may involve a formal
disciplinary committee that the mayor of the municipality oversees. The complainant may also
contact the Attorney General if he/she feels that their complaint was not dealt with correctly or
that there was an attempt to cover something up. Additionally, if it is a serious criminal matter or
if the complainant deems it necessary, the Police Committee may invite an outside police
agency to investigate the matter.
237.
Currently, no statistics are available to determine the number of complaints to Police
Committees or their disposition.
238.
The Correctional Services Act gives the Lieutenant Governor-in-Council authority to make
regulations pertaining to the treatment of inmates in provincial correction facilities. Under the
1992 Correctional Services Act, the Director of Community and Correctional Services is
responsible for the administration of correctional services under the direction of the Attorney
General. The Director may establish, amend and enforce a code of conduct for centre
managers and employees. Under the old Jails Act, the Minister was directly responsible for the
administration of the Act, and the jailer (now called the centre manager), in carrying out duties
for the care, custody and discipline of inmates, reported directly to the Minister. No code of
conduct was prescribed by the Act, nor was there a provision, as is contained in section 15 of
the Correctional Services Act, for employees to be investigated and examined in regard to
their conduct.
Article 14: Redress and Compensation
239.
In PEI, compensation for criminal injury is available to victims who receive injuries from crimes
committed after the 1989 proclamation of the Victims of Crime Act. To be eligible for
compensation, the injury must involve actual bodily harm, which includes mental shock. Persons
who incur financial loss or expenses resulting from a victim’s injury or death may also apply for
compensation through Victim Services, the agency responsible for administering compensation
claims. If there is evidence that a crime occurred, compensation may be available, even when
the offender is not apprehended or convicted. The crime must still have been reported to
police, and the victim must cooperate in the investigation. Between 1996 and 1999, a total of
109 victims were compensated: 22 in 1996, 25 in 1997, 30 in 1998 and 32 in 1999.
Prince Edward Island
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Nova Scotia
Introduction
240.
This report updates the information contained in the Third Report of Canada on the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment with respect to developments in Nova Scotia between April 1996 and
April 2000.
Article 2: Legislative, Administrative, Judicial or Other Measures
241.
The provincial Department of Justice enforces the provisions of the Canadian Criminal Code,
including section 269.1, which specifically categorizes torture as an indictable offence and
eliminates the defence of superior orders.
242.
The Nova Scotia Hospitals Act, R.S.N.S. 1989, c. 208, states that, if a peace officer
apprehends and detains a person for a medical examination that may result in admission to a
psychiatric facility, the officer must file a full report with the Attorney General within 24 hours of
the apprehension. The person detained must receive the medical examination within 24 hours of
admission, and a person who is formally admitted may apply to have his or her declaration of
capacity or competency reviewed by a review board.
Article 6: Custody and Other Legal Measures, and
Article 7: Prosecution of Offences
243.
The Liberty of the Subject Act, R.S.N.S. 1989, c. 253, is the provincial habeas corpus
legislation. It guarantees that there shall be no abrogation or abridgement of the remedy by the
writ of habeas corpus at common law and further guarantees that the remedy exists in full force
and is the undeniable right of the people of the province of Nova Scotia.
Article 10: Education and Training
244.
All provincial corrections officers receive a mandatory basic training course that includes an
examination of the Canadian Charter of Rights and Freedoms. Since 1992, approximately
25 percent of corrections officers have taken additional training in Verbal Crisis Intervention, a
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course designed to reduce physical intervention. The training is still being offered to those
officers who have not yet had the opportunity to take part. The Correctional Services Program,
taught at the community college level, is developing a Program Advisory Committee comprised
of members from youth corrections, group homes, federal and provincial departments of justice
and university criminology departments. The Program examines the Canadian Charter of
Rights and Freedoms and the Nova Scotia Human Rights Act.
245.
In March 1996, Nova Scotia became the first province in Canada to implement a
province-wide Use of Force Policy. This policy addresses unnecessary force and injury to
police or suspects and outlines the use of alternative methods to lethal force. Approximately
97 percent of the province’s peace officers have already taken the two-day course associated
with the policy; and the course will continue to be offered on a yearly basis for all officers.
246.
As outlined in Canada’s Third Report, the province established a “Critical Incident Investigation
Task Force,” comprised of representatives from the Royal Canadian Mounted Police (RCMP),
municipal police, Military Police, the Department of Natural Resources, the Department of
Fisheries and Ports Canada. The Task Force investigates any death or serious injury to, or
caused by, a peace officer. The investigation is headed by an agency other than the agency
involved in the incident and a public report is issued.
Article 11: Treatment of Persons Arrested, Detained or Imprisoned
247.
The Corrections Act, R.S.N.S. 1989, c. 103, provides for the safe custody and security of
offenders and for the inspection of lock-up facilities and compliance with prescribed standards.
Article 12: Prompt and Impartial Investigation
248.
The Fatality Inquiries Act, R.S.N.S. 1989, c. 164, provides for an investigation into the cause
and manner of the death of a person in a jail or prison, or other location where there is
reasonable cause to suspect that the person died by violence or through culpable negligence.
Article 13: Allegations of Torture
249.
Under the Police Act, R.S.N.S. 1989, c. 348, the Nova Scotia Police Commission continues
to be responsible for investigating complaints against the police. Complaints that are not
resolved by the Commission may be referred to the Review Board, which must hold a public
hearing and provide written reasons for its decisions. The Review Board may vary or affirm
penalties against officers or award costs.
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250.
Regulations made pursuant to the Police Act require municipal police departments to report
internal disciplinary matters to the Police Commission. The Annual Report of the Nova Scotia
Police Commission is made available through public libraries and the Nova Scotia government
bookstore.
251.
The Ombudsman Act, R.S.N.S. 1989, c. 327, authorizes staff from the Office of the
Ombudsman to enter premises and investigate allegations of any offence against an inmate of a
corrections facility or against a patient in a psychiatric hospital. Where other avenues of redress
exist, the staff may examine both whether the process and policy is fair and, if so, whether the
process was followed correctly.
252.
The Office of the Ombudsman maintains records of correctional facilities complaints
independent of those filed against the parent Department of Justice. The Office conducts
monthly visits to all youth correctional facilities and maintains a Registry of Complaints which is
open to both inmates and non-management staff of those facilities.
Article 14: Redress and Compensation
253.
The Fatal Injuries Act, R.S.N.S. 1989, c. 163, provides for the right of family members to
maintain an action and recover damages for a death caused by neglect or a wrongful act.
254.
Under the Proceedings Against the Crown Act, R.S.N.S. 1989, c. 360, the government is
subject to liability for torts committed by its agents and officers, including officers performing
legal duties.
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New Brunswick
Introduction
255.
This report outlines changes made since Canada’s Third Report and provides additional
information regarding New Brunswick’s adherence to the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment. It covers the period from
April 1996 to April 2000.
256.
New Brunswick is committed to the principles of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment and to fully implementing the
provisions of the Convention within its jurisdiction.
Article 2: Legislative, Administrative, Judicial or Other Measures
257.
The Custody and Detention of Young Persons Act, R.S.N.B. 1973, c. C-40, recognizes and
declares that young persons who commit offences have special needs and require guidance and
assistance. They have rights and freedoms in their own right, including those stated in the
Canadian Charter of Rights and Freedoms and, in particular, a right to be heard in the
course of, and to participate in, the processes that lead to decisions that affect them.
Article 10: Education and Training
258.
There is no training facility for police officers in New Brunswick. The regional training facility for
police officers is the Atlantic Police Academy, located in Summerside, Prince Edward Island.
The training of police officers is consistent with the principles of the Canadian Charter of
Rights and Freedoms, the Criminal Code of Canada and the United Nations (UN)
Convention against Torture, all of which are referred to in the course of the programs. Training
includes information on inmate rights, procedures for handling suspects, methods of restraint
and consequences of the use of force. The Atlantic Police Academy is also involved with
providing continuous on-the-job training.
259.
There are two nursing programs in New Brunswick, the Faculty of Nursing at the University of
New Brunswick, and l’École des sciences infirmières at l’Université de Moncton. The Faculty
of Nursing has introduced specific content into its Year II curriculum dealing with the care of
persons who have been subjected to torture or other cruel, inhuman or degrading treatment. In
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Year II, III, and IV of the program, students work in a variety of community and tertiary care
agencies where application of this knowledge is reinforced. L’École des sciences infirmières
has, as part of its curriculum, training on the care of victims of physical and sexual abuse,
regardless of the cause of the alleged abuse. The content of some of the optional courses
offered to future nurses provides discussion with respect to human rights and the spirit of the
Convention against Torture. Students also receive experience within a variety of community and
tertiary care settings.
260.
Policy and procedures have been developed with the New Brunswick Foster Families
Association to investigate allegations of abuse or neglect involving foster children who are in
care of the Minister.
261.
Interdepartmental Protocols for Child Victims of Abuse have been developed in order to
ensure that all efforts in New Brunswick to protect children from abuse and neglect are
effective and sensitive to the needs of children. In these protocols, there is a specific section in
relation to Foster Homes and Children’s Group Care Facilities. Specifically, the protocols
prohibit the use of physical discipline in New Brunswick foster homes and group homes.
262.
The University of New Brunswick Faculty of Law offers two courses directly related to the UN
Convention against Torture. These courses are:
•
•
International Humanitarian Law 4133, which is an introduction to theories, policies,
practices, and rules of the law of armed conflict and international humanitarian law
Human Rights Law 3908, which presents international human rights and Canadian human
rights in the context of the UN Convention
263.
The Department of Political Science at St. Thomas University offers many courses wherein the
general topic of torture and other inhuman or degrading treatment or punishment is dealt with.
These courses are: History/Human Rights 3913 — Canada and Modern War Crimes;
Criminology 3243 — Corrections; Criminology 3133 — Criminal Law and the Canadian
Charter of Rights and Freedoms (discussion on the UN Convention and on s. 12 of the
Charter); Criminology 3223 — Young Offenders; and Criminology 3123 — Contemporary
Issues.
264.
The student chapter of Amnesty International hosted a conference at Mount Allison College
that attracted students and interested citizens from eastern Canada. Among the key speakers
were a number of distinguished and notable international human rights activists, such as the
Executive Director of Médecins sans frontières and Stephen Lewis, Former Canadian
Ambassador to the UN.
New Brunswick
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265.
The Faculté de Droit (Faculty of Law) of l’Université de Moncton offers a course entitled
Droits fondamentaux, specifically oriented to the study of all fundamental rights, and another
entitled Droit international public, which studies human rights. In addition to those two courses,
beginning in September 2000, a third course, Droit de l’immigration (immigration rights) will
teach such fundamental rights as political asylum, and of specific reasons that can lead to
granting political asylum like torture and cruelty.
266.
Furthermore, the Department of Sociology of the Faculté des Sciences sociales is presently
preparing a program for a Minor in Criminology, which is due to start in September 2000. The
program will comprise two Criminology courses that would present content directly related to
human rights, and specifically to those rights for which the Convention against Torture was
adopted.
267.
The New Brunswick Community College in Miramichi City, which runs the Correctional
Techniques Program, the Youth Care Workers Program and the Criminal Justice Program, has
taken steps to implement education on the Convention against Torture into these three training
areas. The content on the Convention has been added to the Correctional Operations course
and the Youth Care Operations course, one of which must be studied by every student in the
above mentioned programs. These operations courses contain specific content dealing with:
“code of conduct” guidelines for correctional workers; the Canadian Charter of Rights and
Freedoms, with specific reference to section 12 on the legal right not to be subjected to cruel
and unusual punishment; Criminal Code of Canada guidelines for the use of reasonable force
and the Correctional Jurisdiction Policy on use of excessive force; and information on
harassment in relation to co-workers and clients in the criminal justice system.
268.
The New Brunswick Community College in Dieppe offers a Correctional Technique Program
that integrates the Canadian Charter of Rights and Freedoms, with specific reference to
section 12 on the legal right to not be subjected to cruel and unusual punishment, and Criminal
Code of Canada guidelines for the use of reasonable force and the Correctional Jurisdiction
Policy on use of force guidelines and policies. Starting next year, the Dieppe College will be
ready to initiate the content of the UN Convention.
Article 11: Treatment of Persons Arrested, Detained or Imprisoned
269.
The 1992 report Policing Arrangements in New Brunswick: 2000 and Beyond (the Grant
Report) recommended several changes to provincial policing arrangements, including the
development of professional standards for policing agencies.
New Brunswick
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270.
Standards were developed through an extensive consultative process and on May 1, 1997, by
virtue of section 1.1(3) of the Police Act, R.S.N.B. 1973, c. P-9.2, the New Brunswick
Policing Standards came into effect as Ministerial Directives. The Solicitor General directed that
municipal and regional police forces in the province would have five years from this date to
meet the Standards, either from within or by means of purchase of service from the Royal
Canadian Mounted Police (RCMP) or a municipal or regional police force. The New
Brunswick Policing Standards reflect the best-prescribed professional requirements and
practices for police services and allow for local implementation flexibility.
271.
The New Brunswick Policing Standards include a chapter relating to the organization and
operational aspects of young offender services which, due to the special legal status of young
persons/offenders, states that clear policy and procedures should be developed in accordance
with the Canadian Charter of Rights and Freedoms and the current legislation. In addition,
Part 6 of the Standards deals with prisoner/court-related operations and with issues of prisoner
transportation, holding facilities and court security.
Article 13: Allegations of Torture
272.
In April 1996, the Department of Public Safety established a Police Act Review Committee,
made up of representatives from all groups with a direct interest in the delivery of policing
services. The Committee’s mandate is to examine the Police Act and to make
recommendations to the Department for legislative amendments.
273.
In November 1998, the Police Act Review Committee began an extensive review of Part III of
the Police Act relating to complaints and the discipline of members of police forces. In view of
the developments that have occurred in this area since this part of the Act was introduced, the
Committee decided to conduct a full review of the discipline process, rather than simply amend
specific provisions. It is anticipated that a package outlining proposed changes to the Police
Act will be available in May 2000. At that time, the key stakeholders will review it before a
recommendation is made to the government.
274.
The Police Act empowers the New Brunswick Police Commission to investigate directly, on its
own motion, in response to a complaint, or at the request of a board of police commissioners or
a municipal council, any matter relating to any aspect of the policing of any area of the province.
The Commission may refer a complaint related to the conduct of a member of a police force to
the chief of police (so long as the chief is not the subject of the complaint), or investigate the
complaint itself by appointing an investigator or conducting a hearing. The Police Act also
requires chiefs of police to inform the Police Commission within 20 days of all complaints
received. In the case where an investigation has been referred to a chief of police by the
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Commission, the chief must submit to the Commission the full details of the investigation within
20 days of its completion.
275.
Regulation 86-49 under the Police Act (known as the Discipline Regulation) sets forth a
Discipline Code, which provides, inter alia, that it is incumbent upon every police officer within
the province to respect the rights of all persons, to perform his duties impartially in accordance
with the law and without abusing his authority and to conduct himself/herself at all times in a
manner that will not bring discredit upon his/her role as a police officer.
276.
Specifically, section 39(1) of Regulation 86-49 provides that it is a major violation of the Code
for any police officer to be discourteous or disrespectful toward any member of the public or to
use any unnecessary force upon or apply cruel treatment to any prisoner or other person with
whom he/she may come in contact in the performance of his/her duties.
277.
The Discipline Code also provides that workplace harassment may constitute a major or minor
violation, and includes provisions dealing with abuse of authority and discrimination.
278.
Under the provisions of the Police Act, if a complaint results in a finding of guilt with respect to
a major violation of the Code, the police officer may be disciplined in several ways, including
suspension or dismissal.
Article 14: Redress and Compensation
279.
The New Brunswick Department of Public Safety provides a range of services to victims of
crime in the province. The mandate of the New Brunswick Victim Services Program is to
provide a range of support services, ensuring that victims are informed of their rights and
responsibilities, that they are referred to services and remedies available to them and that they
are treated with courtesy and compassion with a minimum of inconvenience from their
involvement in the criminal justice system. This program is self-sufficient, being totally funded
from revenue received from a victim surcharge collected on federal and provincial offences in
the province. The legislative authority for the establishment and delivery of victim services rests
with the Criminal Code of Canada and the New Brunswick Victim Services Act.
280.
Services provided to victims of crime include:
•
•
provision of information on services available for victims of crime
support and preparation of victims to testify in court
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•
•
•
•
•
assistance in preparation of victim impact statements for court, ensuring that victims are
aware they may voluntarily prepare and read an impact statement in court at the time of
sentencing, in accordance with the Criminal Code of Canada
provision of counselling services, including trauma counselling, to assist victims in dealing
with trauma and to be able to testify in court
referral and payment for short-term counselling by registered therapists to deal with the
effects of being victimized
crime compensation
referrals as needed to community agencies providing services to victims of crime
281.
The New Brunswick Victim Services Act provides for: the collection of victim surcharges on
provincial offences; the provision of grants to community agencies for the delivery of services to
victims, promotion of victim services, distribution of information for victim services and research
on victims of crime; and the delivery of victim services in the province, including the
administration of the compensation for victims of crime.
282.
In 1996, the New Brunswick Compensation for Victims of Crime Act was repealed and the
Compensation Program now falls under the Regulations of the Victim Services Act.
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Québec
Introduction
283.
The Government of Québec has undertaken to comply with the provisions of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment by adopting Decree No. 912-87, on June 10, 1987, in compliance with its internal
law. Unless otherwise indicated, this report updates, to April 31, 2000, the information
contained in Canada’s previous reports on the application of this Convention.
Article 2: Legislative, Administrative, Judicial or Other Measures
284.
Québec’s Charter of Human Rights and Freedoms, R.S.Q., c. C-12, enacted by the
National Assembly in 1975, stipulates that “every human has a right to life, and to personal
security, inviolability and freedom.” Legislative and administrative measures have been taken in
accordance with this fundamental provision to ensure compliance with the Convention.
285.
Under the Act Respecting Police Organization, R.S.Q., c. O-8.1, all special constables and
police officers in Québec are subject to the same rules of conduct, as prescribed by the
Québec Police Code of Ethics (Code de déontologie des polociers du Québec, R.R.Q.,
c. 0-8.1, r. 1). The Police Ethics Commissioner and the Police Ethics Committee (Comité de
déontologie policière) monitor compliance with this Code and receive public complaints about
police conduct. In October 1997, the National Assembly passed amendments to the Act
Respecting Police Organization with a view to amending the police code of ethics. The basic
principles of the system, namely, transparency, accessibility and the independence of
complementary jurisdictions, were maintained. The new legislation emphasizes conciliation as a
means of resolving public complaints and as an alternative to court remedy. Among other
things, the new system stipulates that all admissible complaints are subject to conciliation,
except for complaints set out in the Act which must be reviewed by the Commissioner — in
particular those involving death or serious injury, criminal offences, recidivism or other serious
matters, as well as issues in which the public trust of police officers may be seriously
compromised. The changes to the conciliation procedure also include private review of
complaints as opposed to a hearing before a tribunal, since it is incumbent on the parties to
express themselves without legal representation so that, together, they can reach a better
understanding of the circumstances and put their agreement in writing.
Québec
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Article 4: Criminalization of Torture
286.
The Criminal Code (s. 269.1) prohibits torture of a citizen by a public official. Only one citizen
invoked this provision during the period covered. The decision is still pending, as the legal
proceedings provide that the accused, a member of the military, will be committed to stand trial
in October 2000.
Article 10: Education and Training
287.
The Québec Ministry of Public Security continued to provide training to new correctional
services officers with respect to human rights and freedoms. In recent years, training has also
addressed physical intervention in a double cell and positional asphyxia in situations requiring
the use of force.
288.
With regard to the training of police officers, the Québec Ministry of Education continues to
provide college-level professional and technical training, as set out in paragraph 169 of
Canada’s Third Report on the application of this Convention.
289.
In December 1999, a bill intended to replace the Police Act and the Act Respecting Police
Organization was tabled in Québec’s National Assembly. Essentially, this bill repeats the
provisions regarding police operations and would incorporate ethics provisions that are
currently part of the Act Respecting Police Organization. The bill requires all police force
directors to establish occupational training plans. The bill also requires all municipalities to pass
a regulation regarding the members of its police services and institutes a monitoring board for
the Sûreté du Québec.
290.
Bill 86 also provides for the creation of a national police school to replace the Québec Institut
de police. The school would provide initial training for police patrol, investigations and police
management.
Article 11: Treatment of Persons Arrested, Detained or Imprisoned
291.
Québec
With respect to the police, in addition to enforcing the various actions mentioned in
paragraph 173 of Canada’s Third Report, the Ministry of Public Security undertook to
implement the measures relating to the government’s policy on conjugal violence, which was
publicly released in December 1995. These actions, taken in conjunction with police services,
are intended to provide for the protection, integrity and security of victims of conjugal violence
and of those close to them. The implementation of various police measures to combat conjugal
violence had the following positive effects:
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•
•
•
The vast majority of police officers register instances of conjugal violence with the Québec
Police Information Centre.
Nearly all police officers seize any firearms present in cases of conjugal violence.
A large proportion of police services inform victims of the release conditions of their
presumed aggressor.
292.
For over two years, an awareness campaign pertaining to violence against women has been
directed to the general population and to youth in particular. It seeks to make people aware of
the unacceptable and criminal phenomenon of violence against women, especially in their
relationship with a spouse or significant other.
293.
The police services used various tools at their disposal, with regard to detention and handling, in
order to respect the rights of those arrested, detained or incarcerated, including a Guide to
Police Practices. This Guide is intended to ensure respect of the Charter of Human Rights
and Freedoms, by providing, among other things, instructions on the use of force, arrest,
detention and investigation techniques.
294.
With respect to correctional services, the number of individuals admitted to detention facilities is
dropping steadily. In 1995-96, for example, 65,461 individuals entered prison. This figure
dropped to 62,985 in 1996-97, 56,954 in 1997-98 and 49,791 in 1998-99. Preliminary
figures for 1999-2000 suggest that this decline in admissions is continuing. This consistent
decline is the result of using alternatives to detention, such as suspension of driver’s licences and
more frequent imposition of community service.
295.
Several directives relating to correctional services were developed or updated in order to
ensure respect for individuals arrested, detained or incarcerated. Among other things, they
address such issues as health care for incarcerated persons, standards for the use and
application of constraint instruments, and the use of firearms.
Article 13: Allegations of Torture, and
Article 14: Redress and Compensation
296.
Québec
There are several types of recourse available to citizens who feel their rights have not been
respected or who have been treated incorrectly. With respect to police work, all citizens can
file a complaint with the Police Ethics Commissioner. The procedure followed in such cases is
set out in paragraphs 87-90 of Canada’s Second Report. The office of the Ethics
Commissioner received 1,188 complaints in 1999-2000 (April 1, 1999 to March 30, 2000),
involving 1,934 police officers. When a complaint is received, the Commissioner ensures that
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the complaint admissibility conditions have been met, namely: the one-year time limit set out by
law within which a complaint must be made; that the allegations pertain to a member of a police
service or a special constable; that this person was on duty at the time of the alleged incidents
and that the alleged conduct contravenes Québec’s Police Code of Ethics. As a result, the
Commissioner refused to investigate 677 complaints (56 percent), tried conciliation between the
parties in 283 cases (23 percent) and decided to investigate 206 cases (17 percent). After
these investigations, the Commissioner decided to commit 122 police officers to appear before
the Police Ethics Board with regard to 77 cases.
297.
With respect to correctional services, individuals claiming to have been mistreated by
correctional services can file a complaint with civil or criminal court and, if the evidence allows,
be compensated for the injustice suffered or receive a statement of guilt against the assailant. In
the case of Gauthier v. Beaumont, [1998] 2 R.C.S. 3, an individual suspected of theft was the
target of abusive conduct by officers of the Québec police service. In this instance, the Supreme
Court of Canada ruled that the conduct of the police had violated the complainant’s rights
guaranteed under sections1 and 4 of the Québec Charter of Human Rights and Freedoms.
The Court sentenced the officers to pay $50,000 in pecuniary damages and $200,000 for
emotional injury under section 49(1) of the Québec Charter. The Court also sentenced the
officers to pay $50,000 in exemplary damages under section 49(2) of the Québec Charter for
intentionally infringing on the complainant’s rights. In Leroux v. Communauté Urbaine de
Montréal, [1997] R.J.Q. 1970, the Superior Court sentenced the officers and their employer
to pay $132,000 in compensation for illegal arrest and detention, insults and mistreatment of an
individual who was arrested and ended up in hospital, including $122,000 in pecuniary damages
and for emotional injury under section 49(1) of the Québec Charter, and $10,000 in exemplary
damages under section 49(2) of the Québec Charter. In the decision of Protection de la
Jeunesse — 988 (1999), J.E. 99-1550, the Québec Superior Court stayed proceedings
relating to an alleged theft in accordance with section 24(1) of the Canadian Charter of Rights
and Freedoms, as reparation for the abusive use of force by police officers during the arrest of
a young offender, in violation of section 12 of the Charter. In that case, it was clear that the
respondent would have received either probation or discharge in any case. In R. v. Serré
(1999), J.E. 99-1033, the Québec Court of Appeal ruled that the stay of proceedings under
section 24(1) of the Canadian Charter was not appropriate, as reparation for the mistreatment
inflicted by prison guards in this instance, following an attempted escape during which one of the
guards was taken hostage and assaulted.
298.
Two authorities in Québec, the Commission québécoise des droits de la personne et des droits
de la jeunesse (Human Rights and Youth Rights Protection Commission) and the Protecteur du
citoyen (ombudsman), regularly monitor and intervene in the management of detention facilities
in the province. For example, the Commission has adopted an analysis grid and statement of
Québec
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principles regarding the use of confinement in the case of a child in compulsory foster care. In
the Commission’s view, confinement should only be used in exceptional circumstances and as a
last resort, if necessary. All disciplinary measures should be taken in the child’s best interests.
Article 16: Prevention of Other Acts of Cruel, Inhuman or Degrading
Treatment or Punishment
299.
Section 43 of the Criminal Code stipulates that “Every schoolteacher, parent or person
standing in the place of a parent is justified in using force by way of correction toward a pupil or
child, as the case may be, who is under his care, if the force does not exceed what is
reasonable under the circumstances.” Serious consideration is currently being given to the need
to retain this section.
300.
During the period covered, two decisions were made citing section 43 of the Criminal Code.
In St-Amour v. Peterson, [1998] R.R.A. 103 (C.S.), the Québec Superior Court concluded
that a school bus driver, who was not facing any criminal charges, had used reasonable force by
pushing a student blocking the centre aisle into his seat. In the case of Laroche v. R. (1999),
J.E. 99-338, the Court of Appeal ruled that throwing a handful of sand into a child’s face could
not be considered as justified correction under section 43 of the Criminal Code, and could
therefore not stand as a valid defence against a charge of assault.
Québec
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Ontario
Introduction
301.
The information provided in this report is an update to Canada’s Third Report on the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment with respect to developments in Ontario. It covers the period from April 1996 to
April 2000.
General Information
302.
Torture is a criminal offence and Ontario is dedicated to strong and effective law enforcement.
303.
Ontario’s correctional system is going through an extensive change that will fundamentally alter
the way in which services are delivered to inmates. These changes have been implemented with
a focus on rebalancing the corrections system to reflect the rights of victims and to institute a
meaningful consequence for offenders. In addition, a strict discipline project aimed at reducing
recidivism, and specifically tailored to 16- and 17-year-old male repeat offenders, is currently
under way. A structured program regimen emphasizing work skills and education has also been
established throughout the young offender system.
304.
Ontario is committed to ensuring that public safety is the highest priority in inmate release
decisions. Strengthened parole policies, vigorous enforcement of the terms and conditions of
parole, and a reduction in the parole grant rate have been effective changes in maintaining public
security. Change within the corrections system is also being delivered through a large capital
renewal project that will eliminate economic inefficiencies and halt the structural deterioration of
the province’s correctional facilities. To this end, the government is currently in the process of
replacing its aging adult facilities with modern, more humane institutions.
Article 1: Definition of Torture
305.
Ontario
On May 21, 1996, the Ontario Human Rights Commission released its Policy on Female
Genital Mutilation (FGM). It is the Commission’s position that the practice of FGM offends the
inherent dignity of women and girl children, and infringes on their rights as set out in the Ontario
Human Rights Code. The Commission will, therefore, accept, investigate and make a
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determination on any complaints involving FGM filed by victims of the practice or their legal
guardian.
Article 2: Legislative, Administrative, Judicial or Other Measures
306.
The Ministry of Correctional Services Act and related regulations, directives, policies,
procedures, training and standards prohibit acts of mistreatment of persons in custody in
Ontario’s correctional facilities. The Ministry of Correctional Services monitors compliance in
provincial correctional facilities.
307.
In Ontario, the standards for correctional staff, facilities and inmates include:
•
•
•
a statement of ethical principles — ethical standards for correctional staff in carrying out
their duties
conditions of confinement — policies regarding the conditions of provincial correctional
facilities, and standards of accommodations, programs and health care of inmates
principles governing confinement — principles regarding inmate rights and privileges,
requirements for inmates and penalties for non-compliance
308.
Under Ontario’s Police Services Act (PSA), administered by the Ministry of the Solicitor
General, municipalities are responsible for providing adequate and effective police services, and
the Lieutenant Governor-in-Council has the authority to establish prescribed standards
governing the delivery of adequate and effective police services.
309.
Under the Police Adequacy and Effectiveness Standards Regulation (January 1999) of the
PSA, police services must perform certain core functions and meet certain service delivery
requirements, including putting in place, by the year 2001, the requirement for development of
policies and procedures with respect to arrest, prisoner care and control, and criminal
investigation management. This also applies to the Ontario Provincial Police (OPP).
310.
The Ministry of the Solicitor General issues guidelines to assist police services boards, chiefs of
police, the OPP and municipalities with their understanding and implementation of the PSA and
its Regulations.
311.
A new Policing Standards Manual was issued in February 2000, which contains 58 guidelines
and sample board policies developed to support the Adequacy Standards Regulation. The
Manual includes new guidelines on arrest, prisoner care and control, and criminal investigation
management. The guidelines on arrest are in compliance with legal and constitutional
Ontario
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requirements. The Ontario Civilian Commission on Police Services has the mandate to hold
hearings and impose remedies with respect to non-compliance on these guidelines.
312.
The Major Case Management Manual sets out procedures specific to interviewing. The
Ministry of the Solicitor General developed a training model and Regulations under the PSA, as
well as supporting standards relating to the use of force by police.
Article 10: Education and Training
313.
All staff of the Ministry of Community and Social Services are trained in the requirements
pertaining to the use of force on clients, as set out in the Ministry’s Young Offender Services
Manual. These requirements cover the following key areas:
•
•
•
•
•
•
•
use of physical or mechanical restraints
use of secure isolation
maintenance of discipline
control of contraband
use of searches
apprehension of youth
use of punishment
314.
All correctional officers in provincial correctional facilities receive basic and advanced training,
including education and information regarding prohibition against mistreatment in correctional
settings. In addition, all correctional staff receive education and training in relevant statutes and
regulations, security protocols, principles of ethics, the proper use of force and the effective use
of non-physical intervention.
315.
Under the Police Services Act (PSA) and related policies and procedures, municipal police
services and the Ontario Provincial Police (OPP) are required to provide adequate training,
education and information to police officers on procedures for arrest and detention, custody,
interrogation, investigation and the use of force.
Article 11: Treatment of Persons Arrested, Detained or Imprisoned
316.
Ontario
All youth in the Ministry of Community and Social Services young offender facilities come under
the jurisdiction of the Child and Family Services Act which sets out rights and protections for
children, including:
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•
•
•
the right to speak in private and receive visits from his/her solicitor or another person
representing the child
controls on the use of secure isolation
regular advice to children regarding their rights
317.
Compliance review mechanisms ensure that standards set out in the Young Offender Services
Manual regarding rights, complaint procedures, serious occurrence reports, child abuse, use of
punishment, searches, mechanical restraints and mandatory criminal reference checks for staff,
are adhered to.
318.
Both the Ministry of Correctional Services and the Ministry of the Solicitor General periodically
review the statutes, policies and procedures related to the prohibition against abuse of persons
during arrest, interrogation, investigation, interview, detention and custody.
Article 12: Prompt and Impartial Investigation, and
Article 13: Allegations of Torture
319.
The serious occurrence procedures of the Ministry of Community and Social Services require
that all serious occurrences involving children and vulnerable adults must be reported by the
licensee/service provider to the Ministry within 24 hours, including serious injuries and
allegations of abuse.
320.
The Ministry of Correctional Services’ Independent Investigations Unit ensures that persons
involved in the provincial correctional system have a means to complain about abuse by
Ministry employees, and to ensure a prompt and impartial investigation into complaints.
321.
Persons involved in the provincial correctional system may complain about abuse to the Office
of the Ombudsman, the Information and Privacy Commissioner, the Ontario Human Rights
Commission, or the Correctional Investigator of Canada. In provincial correctional facilities, all
correspondence to or from these agencies is not opened or examined for contraband or
inappropriate content. Investigations by these agencies are independent and are afforded the full
cooperation of the Ministry of Correctional Services.
322.
The PSA establishes a public complaints system in which any member of the public who is
directly affected by the conduct of a police officer, or by the policies or services provided by a
police service, may make a complaint. A complaint may be made either directly to the police
service named in the complaint or to the Ontario Civilian Commission on Police Services, an
independent, civilian, quasi-judicial agency that has the authority to investigate complaints, to
hold and adjudicate hearings, as well as to impose remedies.
Ontario
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Article 16: Prevention of Other Acts of Cruel, Inhuman or Degrading
Treatment or Punishment
323.
Under Ontario’s Child and Family Services Act, every licensee is required to maintain an upto-date written statement of policies and procedures setting out methods of maintaining
discipline and procedures governing punishment and isolation methods that may be used in the
residence. No licensee is permitted to use deliberate harsh or degrading measures to humiliate a
resident or undermine a resident’s self-respect.
324.
The Government of Ontario recently passed new legislation intended to enhance safety, security
and respect in schools. Three new initiatives have been developed as a result of this new
legislation:
•
•
•
325.
Ontario
Criminal reference checks for everyone teaching or working in schools with regular
access to students. The Ministry of Education has also requested that school boards
review their hiring practices and procedures for identifying and reporting cases of
alleged or suspected sexual misconduct.
Strict discipline schooling programs for students who have been expelled from school
for serious incidents, such as bringing a firearm to school. Strict discipline schooling
programs, or their equivalents, for expelled students will provide a structured approach
to help students turn their lives around so that they can return to and succeed in the
regular school program.
The new legislation gives the Minister of Education authority to set parameters regarding
in-school suspensions and/or other forms of discipline, and provides direction as to the
mitigating circumstances to consider when determining the consequences for students
who do not abide by the rules of the school. Mitigating circumstances, as well as the
ability for schools to adopt a progressive discipline scheme for less serious incidents,
better ensures that mandatory consequences (e.g., suspensions or expulsions) do not
have a disproportionately harsh impact on, for example, exceptional pupils.
In order to prevent acts of cruel, inhuman or degrading treatment or punishment in provincial
correctional facilities, the Ministry of Correctional Services monitors compliance with relevant
statutes, regulations, policies and procedures, and training and standards regarding the proper
use of force and the effective use of non-physical intervention and communications.
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Manitoba
Introduction
326.
This report updates the information contained in the Third Report of Canada on the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment with respect to developments in Manitoba between April 1996 and April 2000.
Article 2: Legislative, Administrative, Judicial or Other Measures
327.
Manitoba’s Corrections Act and its Regulation were repealed upon the proclamation of the
Correctional Services Act on October 1, 1999. The Correctional Services Regulation 128/99
also came into force on this same date. The comprehensive review and redrafting of this new
legislation now more completely addresses rights and responsibilities within a progressive and
contemporary context that includes the Canadian Charter of Rights and Freedoms and other
legislative factors. The new Act and the expanded regulatory authority are now applicable to all
custodial or community corrections (both youth and adult).
328.
The Act now contains “Purpose” statements as well as a section on General Principles. One of
the stated purposes is “the safe, secure and humane accommodation of persons who are in
lawful custody,” and another is “appropriate programs, services and encouragement to assist
offenders to lead law-abiding and useful lives.” The Regulation has a section on “principles and
procedures of supervision and discipline” relative to youth custodial facilities. Alternative
resolutions are sought in handling disciplinary offences in adult custodial facilities.
329.
Correctional policy has also undergone redrafting to reference the authority contained in this
new Act and Regulation. The Regulation itself is required to have a consultative review by the
Minister for any amendment or repeal, within five years of its coming into force.
330.
In addition to extensive training of new recruits, mandatory refresher courses are required by
policy for all correctional staff to maintain their competency, particularly with respect to dealing
with emergencies, including “non-violent crisis prevention.”
Manitoba
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Article 10: Education and Training
331.
Within corrections, training has developed progressively over the past number of years in
Manitoba with dedicated management, qualified staff trainers and updated curriculum that
provides initial training of core competencies for new staff. Refresher training in critical skill
areas is also scheduled.
332.
Responses to major disturbances in custodial facilities previously responded to by police
services are now safely and professionally dealt with by staff specifically trained as an
emergency response unit. In addition, individual facilities have trained response teams for
specific conflict resolutions, when required.
333.
Facility staff members in Manitoba work cooperatively with police services on the control of
gang problems involving street gang members organizing gang-related activity while
incarcerated. Preventive security within facilities initiate liaison with the provincial gang
intervention strategy to exchange information to effectively manage gang-related issues that have
surfaced over the past number of years.
334.
A comprehensive policy on the use of restraint equipment and pepper spray has been
approved, consistent with necessary training and accountability measures.
335.
In the mental health field, a new Mental Health Act (proclaimed on October 29, 1999) has
increased the rights of involuntary patients to access or refuse treatment. It has also developed a
system for seeking consent for treatment in situations where a patient lacks the capacity to
provide such consent. The legislation has also increased the responsibilities of physicians who
seek to confine patients in psychiatric facilities.
336.
The policies of psychiatric facilities are reviewed on an ongoing basis in Manitoba (every three
years). For example, a restraint/seclusion literature review is currently being done by the Selkirk
Mental Health Centre to assess how these procedures co-relate with the core values of care,
hope and empowerment of such centres.
Article 11: Treatment of Persons Arrested, Detained or Imprisoned
337.
The Mental Health Act also enables the Minister to establish standards committees for mental
health facilities, and enables the Director of Psychiatric Services to require reports from the
Medical Director of a facility with respect to the detention, care and treatment of persons in that
facility.
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Article 12: Prompt and Impartial Investigation
338.
The area of “investigations” has been more clearly addressed in the new Correctional Services
Act. The Act also prohibits the obstruction of an investigation, inquiry, review or inspection. A
current initiative involves the development of a policy on handling investigations within
corrections. A draft policy, including consultation from Labour Management and Human
Resources, is under review.
339.
In May 2001, the Government of Manitoba also enacted the Protection of Persons in Care
Act, which provides a mechanism for impartial investigation for the aging population in personal
care homes and hospitals.
Article 13: Allegations of Torture
340.
One of the principles articulated in the new corrections legislation states that “Offenders, and
the guardians of offenders who are young persons, should be involved in decisions made in the
administration of this Act that affect the offender whenever appropriate.” The “Complaints and
Appeals” part of the Regulation also consolidates the process required in the Act for dealing
with the outcome of prescribed decisions or complaints about “any condition or situation in the
facility that affects the inmate.”
341.
Under the Corrections Regulation, offenders are granted access to telephone communications
and advised that such communications may be subject to interception. The Regulation also lists
the persons or offices that are privileged, in which case correspondence will not be inspected or
read. This includes government ministers, the Human Rights Commission, the Ombudsman,
lawyers representing the offender, and senior correctional officials or others carrying out a legal
responsibility.
Article 14: Redress and Compensation
342.
The latest legislation on victims is Manitoba’s Victims’ Bill of Rights, which was passed on
June 29, 1998, and proclaimed into force on August 31, 2001, in conjunction with the
Designated Offences Regulation. It replaced the Victims’ Rights Act that had been given Royal
Assent a year earlier, which in turn had repealed the Criminal Injuries Compensation Act and
the Justice for Victims of Crime Act. This new legislation is being implemented in phases, with
the second phase being introduced January 31, 2002, and listing additional offences on which
victims are entitled to services. The plan is to eventually designate all the offences, but in a
manner that follows the completion of the support system capacity to serve the victims’ needs.
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343.
“The Victims’ Assistance Fund” and the “Compensation for Victims of Crime” that were part of
the Victims’ Rights Act have been continued in the consolidation of this new Act, but are
subject to amendment.
Article 16: Prevention of Other Acts of Cruel, Inhuman or Degrading
Treatment or Punishment
344.
Canada’s Second Report made reference to the replacement of the former Lieutenant
Governor’s Advisory Board of Review with the Review Board of Manitoba (Criminal Code).
(Other provinces have similar bodies.) These review boards have come under continuous court
supervision for compliance with the Canadian Charter of Rights and Freedoms. Currently,
unproclaimed amendments to the governing legislation are under review, and presentations will
be made to a federal parliamentary committee on the subject.
345.
The province’s Mental Health Act has strengthened the offence and penalty provisions for
mistreatment of mentally disordered persons inside or outside psychiatric facilities.
346.
The Vulnerable Persons Living With a Mental Disability Act was proclaimed on
October 4, 1996. Originally, it had been assented to in 1993 when Part II of the former Mental
Health Act had been repealed. It sets out a new regime for addressing the needs of persons
who had previously been classified as “mentally retarded.” Among other things, the legislation
provides a variety of protections for vulnerable persons, and creates the Office of Vulnerable
Persons’ Commissioner.
Documentation
347.
The following documents are filed with the Committee, along with the present report:
•
•
•
•
•
•
Manitoba
The Correctional Services Act
The Correctional Services Regulations 128/99
The Mental Health Act
The Protection of Persons in Care Act
The Victims’ Bill of Rights
The Vulnerable Persons Living with a Mental Disability Act
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Saskatchewan
Introduction
348.
This report updates the information contained in the Third Report of Canada on the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment with respect to developments in Saskatchewan between April 1996 and
April 2000.
Additional Information Required by the Committee
349.
When the Committee against Torture reviewed Canada’s Third Report, the Committee asked
questions related to certain incidents involving Aboriginal people and the Saskatoon City Police.
Saskatchewan’s submission to this report will deal with that issue.
350.
In February 2000, Darrel Night, an Aboriginal man, alleged that two Saskatoon City Police
officers picked him up, drove him outside the city and dropped him off in sub-zero weather to
walk back to Saskatoon. The frozen bodies of two Aboriginal men had been found earlier in
the winter near the Queen Elizabeth Power Station. It was alleged that these individuals may
also have been the victims of police drop-offs.
351.
Since that time, an extensive investigation of these two deaths, plus three others (Darcy Dean
Ironchild, Lloyd Dustyhorn, Rodney Naistus, Lawrence Wegner and Neil Stonechild), as well
as other allegations of police mistreatment, has been under way.
352.
The investigation of the Darrel Night incident resulted in the charging of two Saskatoon City
Police officers who were convicted of unlawful confinement in October 2001. Each was
sentenced to eight months’ imprisonment. Those sentences are currently under appeal.
353.
Investigations into the deaths of Darcy Dean Ironchild, Lloyd Dustyhorn, Rodney Naistus, and
Lawrence Wegner have concluded. A review of the investigations by the Public Prosecutions
Division of Saskatchewan Justice determined that criminal charges were not warranted. The
Minister of Justice ordered coroner’s inquests into these four deaths. In Saskatchewan, such
inquests are open to the public, and evidence is given before a six-person jury, which is
summoned at random. In addition to establishing when and where the death occurred, and the
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medical cause of death, the coroner’s jury may make recommendations to prevent similar
deaths in the future.
354.
The inquest into the death of Darcy Dean Ironchild took place December 12-14, 2000, in
Saskatoon. The 33-year-old died in the early morning hours of February 19, 2000. He had
been taken into custody by Saskatoon City Police for public intoxication early in the evening of
February 18, 2000. Mr. Ironchild was kept under observation in cells until around midnight,
when he was released and sent home in a taxi. The jury concluded that Mr. Ironchild’s death
was accidental, and that the cause of death was an overdose of chloral hydrate. The jury made
a number of recommendations with respect to the prevention of “double-doctoring” for the
purpose of obtaining multiple prescriptions for drugs. The jury also recommended a review of
police policies on their contact with and care of intoxicated persons, and that federal, provincial
and local governments should fund a multicultural detoxification centre where an intoxicated
person could be taken rather than remaining in police custody.
355.
The inquest into the death of Lloyd Joseph Dustyhorn took place May 8-10, 2001, in
Saskatoon. The 53-year-old died in the early morning hours of January 19, 2000. He had been
taken into custody by Saskatoon City Police for public intoxication on the evening of
January 18, 2000. Mr. Dustyhorn was kept under observation in cells until early morning of
January 19, 2000, when he was released and transported home by Saskatoon City Police. The
jury found that Mr. Dustyhorn’s death was accidental and caused by hypothermia. This jury
also recommended the establishment of an emergency detoxification centre in Saskatoon where
non-violent intoxicated persons could be taken rather than remaining in police custody.
Improved communications and record keeping regarding detainees were also recommended, as
were improvements in the education and training of detention staff in the areas of dealing with
intoxicated persons and Aboriginal awareness and sensitivity.
356.
The inquest into the death of Rodney Hank Naistus was held October 30-November 2, 2001,
in Saskatoon. The body of the 25-year-old man was found in the late morning of
January 29, 2000, in the southwest industrial area of Saskatoon. He was last seen alive in the
early morning hours of January 29, 2000, in the downtown area. While the jury was able to
identify the cause of death as hypothermia, it was unable to determine the circumstances that led
to Mr. Naistus’ death. The jury’s recommendations all related to police policies and
police/Aboriginal relations.
357.
An inquest into the death of Lawrence Kim Wegner was held in January and February of 2002
in Saskatoon. The body of the 30-year-old man was found February 3, 2000, in a field south of
the city of Saskatoon’s landfill. He was last seen alive in the early morning hours of
January 31, 2000, in the southwest area of the city. As with the Naistus inquest, the jury found
Saskatchewan
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the cause of death to be hypothermia, but was unable to determine the circumstances that led to
Mr. Wegner’s death. The jury provided a number of recommendations related to mental health
and addictions services; police procedures with respect to communications, scene preservation
and the interviewing of witnesses; as well general recommendations having to do with crosscultural awareness training for police and improvement of access to the justice system for
Aboriginal people.
358.
The body of Neil Stonechild was exhumed in late April 2001. The investigation into
Mr. Stonechild’s death is continuing.
359.
In addition to the criminal investigation, the office of the Saskatchewan Police Complaints
Investigator has hired additional staff to look into specific complaints of police actions that are
not criminal acts.
360.
On November 15, 2001, the Attorney General for Saskatchewan announced the establishment
of the Commission on First Nations and Métis Peoples and Justice Reform. This independent
Commission will engage in a problem-solving dialogue with the people of Saskatchewan, in
particular with Aboriginal communities and organizations, to identify reforms that will improve
the justice system for all citizens of the province. The goal of the Commission is to identify
efficient, effective and financially responsible reforms to the justice system.
Saskatchewan
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Alberta
Introduction
361.
This report updates the information contained in the Third Report of Canada on the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment with respect to developments in Alberta between April 1996 and April 2000.
General Information
362.
The role of the provincial Ombudsman, as reported by Alberta in the Canada’s Third Report
on this Convention, remains unchanged.
Article 2: Legislative, Administrative, Judicial or Other Measures
363.
Provisions under Alberta’s Mental Health Act and the Public Health Act, allowing for the
detention of involuntary patients for examination and treatment, remain in place.
364.
There has been no new case law relevant to the implementation of the Convention.
Article 10: Education and Training
365.
Police officers in Alberta continue to receive training that defines the limits of force that can be
used by an officer.
Article 11: Treatment of Persons Arrested, Detained or Imprisoned
366.
Alberta
The Correctional Services Division of Alberta Justice has a considerable number of policies that
reinforce the need to treat incarcerated offenders equitably. Policies include appeal mechanisms
to correctional and third party officials, and reviews of staff decisions by senior correctional
staff. Training initiatives are predicated on policy directives. All new and incumbent staff receive
complete training on all aspects of policy, including approved security and disciplinary methods,
offender management techniques, conflict resolution and protections available to offenders.
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Article 12: Prompt and Impartial Investigation
367.
The provisions of the Fatality Inquiries Act, as reported by Alberta in the Canada’s Third
Report on this Convention, remain in effect.
368.
No complaints have been received by either the Law Enforcement Review Board or the
Criminal Injuries Appeal Board regarding the use of torture or other cruel, inhuman or
degrading treatment or punishment.
369.
The “no physical discipline” policy with respect to the province’s foster homes and foster
parents, as reported by Alberta in the Canada’s Third Report, remains in effect.
370.
The Protection of Persons in Care Act, passed in 1997, is legislation designed to protect
adults in care facilities from abuse. The Act helps Alberta adults, especially those who are
vulnerable, live with dignity and respect. The Act protects adults in publicly-funded care
facilities such as hospitals, seniors’ lodges, group homes and nursing homes.
371.
Alberta’s Protection of Persons in Care Act:
•
•
•
•
•
•
•
defines abuse
makes it mandatory for people who suspect abuse to report it
establishes a toll-free telephone line where people can report abuse
protects people who report abuse in good faith from retaliatory action
specifies penalties for failing to report suspected abuse and for knowingly making false
reports
sets out a process for investigating and resolving reports of abuse
requires a criminal record check for new employees and volunteers working in care
facilities
Article 14: Redress and Compensation
372.
Persons who allege that they are victims of municipal police may complain in writing to the Chief
of Police and may appeal the disposition of their complaint to the Police Commission or to the
Law Enforcement Review Board, an independent quasi-judicial body established under the
Alberta Police Act.
373.
Persons who allege that they are victims of the Royal Canadian Mounted Police (RCMP) may
complain in writing to the RCMP Assistant Commissioner “K” Division or the RCMP Public
Complaints Commission, which is an independent body created by Parliament to ensure that
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complaints against the RCMP are examined impartially. Appeals of the decisions of the
Assistant Commissioner may be made to the RCMP Public Complaints Commission.
374.
Persons who allege that they are victims of a First Nation Police Service may complain in
writing to the Chief of Police and may appeal the disposition of their complaint to the First
Nation Review Board, an independent body set up under the Tripartite Policing Agreement.
375.
The Alberta Victims of Crime Act was proclaimed on November 1, 1997. The Act provides
financial benefits for innocent victims injured during the commission of a crime and helps to fund
organizations that assist crime victims. Funding for these programs is provided by surcharges
collected on fine revenue.
376.
Financial benefits are paid to those injured during a crime on a one-time basis in accordance
with the severity of the injuries sustained. If an applicant is dissatisfied with the decision of the
Director of the Financial Benefits Program , he/she may request a hearing before the Criminal
Injuries Appeal Board. This Board is made up of three members appointed by the Government
of Alberta.
Alberta
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British Columbia
Introduction
377.
This report updates the information contained in the Third Report of Canada on the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment with respect to developments in British Columbia. It covers the reporting period
from April 1996 to April 2000.
Article 2: Legislative, Administrative, Judicial or Other Measures
378.
As elaborated in Canada’s Third Report, the Attorney General of British Columbia (BC) is
responsible for the enforcement of provincial statutes and prosecution of criminal offences
which occur within the province. No provision of BC law or policy may be invoked as a
justification for torture or other inhumane treatment. In fact, torture is a criminal offence under
section 269.1(1) of the Criminal Code of Canada, which applies to all jurisdictions in Canada
and carries a maximum penalty of 14 years’ imprisonment. The definition of torture in
section 269.l(1) complies with the definition articulated in article 1 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
379.
Further measures that may serve to prevent torture include the existence of various professional
codes of conduct. With respect to the police, both municipal police officers and officers of the
Aboriginal police departments are regulated by the Code of Professional Conduct
Regulation, BC Reg. 205/98. This Code delineates 12 categories of “disciplinary defaults”
including, but not limited to, discreditable conduct, neglect of duty, abuse of authority, improper
use and care of firearms and conduct constituting an offence. Sanctions range from a verbal or
written reprimand to dismissal.
380.
In addition, police departments are required to comply with Provincial Standards for
Municipal Police Departments in British Columbia, Order in Council No. 748. The purpose
of the approximately 400 Standards is to identify minimum acceptable standards for police on
topics which range from the use of dogs to the storage of firearms. The Police Services Division
of the Ministry of the Attorney General periodically audits police departments in the province to
ensure that they are complying with these standards. Examples of relevant standards are
included in Appendix BC-1. A copy of the Code of Professional Conduct Regulation and
British Columbia
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the Use of Force Regulation, BC Reg. 203/98, are filed with the Committee, along with the
present report.
381.
Standards of conduct for provincial correctional officers are set out in Ministry of Attorney
Adult Custody Policy Manual, Community Corrections Policy Manual and General
documents such as Standards of Conduct for Correction Branch Employees, Correctional
Centre Rules and Regulations. The Corrections Branch standard of conduct with respect to
use of reasonable force is filed with the Committee, along with the present report.
382.
Similar standards of conduct exist for sheriffs who are responsible for court security and for
prisoner escort. The provisions of the Deputy Sheriff’s Code of Conduct which relate to
physical restraint, the use of firearms/batons and the use of pepper spray are filed with the
Committee, along with the present report.
383.
Doctors and nurses working in psychiatric facilities are also bound by their respective
professional codes of conduct. Further regulations and rules may be superimposed over these
professional standards by the particular psychiatric facility in question. For example, Riverview,
one of the largest psychiatric facilities in the Vancouver region, has developed its own set of
written policies around staff conduct. Finally, all employees of psychiatric facilities are subject to
section 17(2) of the Mental Health Act, R.S.B.C. 1996, c. 288, which prohibits the
mistreatment of patients. The provision states: “A person employed in a Provincial mental health
facility or a private mental hospital, or any other person having charge of a patient, who ill
treats, assaults or willfully neglects a patient commits an offence punishable under the Offence
Act.”
Article 3: Expulsion or Extradition
384.
As outlined in paragraph 263 of Canada’s Third Report, the Legal Services Society of British
Columbia provides legal services (legal aid) for immigration-related proceedings which could
result in deportation to applicants who meet the income eligibility guidelines. Although the
Society does not track the number of refugee claimants who allege torture, such reports are not
uncommon. The statistics provided in the table below detail the total number of immigration and
refugee legal aid referrals in British Columbia for each fiscal year from 1996 to 2000.
Fiscal Year
1996-1997
1997-1998
British Columbia
Dates
April 1, 1996–March 31, 1997
April 1, 1997–March 31, 1998
Immigration and Refugee
Referrals
2430
2690
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1998-1999
1999-2000
April 1, 1998–March 31, 1999
April 1, 1999–March 31, 2000
3094
3949
Article 6: Custody and Other Legal Measures, and
Article 7: Prosecution of Offences
385.
The Corrections Branch of the Ministry of the Attorney General admits into custody only those
persons who have appeared before the courts and have been bound by a criminal order issued
by law. The decision to prosecute or extradite remains with the office of the provincial crown
counsel.
386.
If an accused facing a charge of torture is found either not fit to stand trial or not criminally
responsible by reason of mental disorder, he or she will be placed in an appropriate psychiatric
facility rather than a prison. Once in the psychiatric facility, the individual is under the authority
of the provincial Review Board. The Review Board must review the file within three months of
the court’s disposition and then once a year after that. The Board must release the person if
there is no danger to the community. If there is a risk to the community, the Review Board can
either keep the individual in the psychiatric facility or order a conditional release.
Article 10: Education and Training
387.
Medical education and training in British Columbia are carried out in two principal ways. First,
medical students follow the medical curriculum at the University of British Columbia. Practising
physicians keep their skills current by participating in Continuing Medical Education (CME)
courses.
388.
The medical program offered to medical students covers a broad range of topics. As such, it
does not specifically focus on the treatment of victims of torture.
389.
With respect to ongoing doctor training, management at CME indicate that training doctors to
be able to deal with victims of torture is an area of key concern to the organization. However,
as CME courses are self-funded, meaning that program costs must be recouped from course
fees, demand drives course development.
390.
The provisions for police and correctional officer training remain in effect as outlined in
paragraphs 266 and 267 of Canada’s Third Report.
British Columbia
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Article 11: Treatment of Persons Arrested, Detained or Imprisoned
Interrogation
391.
The Canadian Charter of Rights and Freedoms applies to the actions of all government
officials including the police, sheriffs and correctional officers. When a person is detained or
arrested, police must inform that person of his or her right to retain and instruct counsel without
delay. In a practical sense, this translates into providing access to a telephone and a telephone
directory, as well as information about legal aid.
392.
Further protection is offered in section 7 of the Charter. This provision encompasses the right
against self-incrimination, as well as guaranteeing the right to life and security of the person.
Thus, police cannot obtain confessions through violence or torture.
393.
Government and police departments have developed other specialized rules concerning the
interviewing of young people. In order to comply with the Young Offenders (British
Columbia) Act, R.S.B.C. 1996, c. 494, Police Standard D11.2.3 requires that each police
department develop a written policy governing the procedures for interviewing young persons,
including provision for consulting with legal counsel, parents, guardians, relatives or other
appropriate adults.
Custody
394.
In British Columbia, custody of prisoners and inmates is the responsibility of the Attorney
General. Within the Court Services Branch, Sheriffs’ Services provides in-court custody and
prisoner escort. The Corrections Branch provides care, custody and control of remanded and
sentenced inmates and, in some cases, immigration-related detainees.
395.
Strict guidelines govern the use of force against persons in the custody of the state. For
example, correctional officers may use force in their capacity as peace officers pursuant to the
Criminal Code of Canada as well as to the BC Correctional Centre Rules and Regulations
and Standards of Conduct for Corrections Branch Employees. Reasonable force may be
used only to: prevent the commission or continuation of an offence; maintain or restore order;
apprehend an offender; prevent an offender from an act of self-harm; or assist another officer in
any of the above conditions. Corrections Branch policies further define the situations and
circumstances in which force may be applied. The guiding principle is that the force used must
not exceed that which is necessary to effect control, and that it must be discontinued at the
earliest reasonable opportunity.
British Columbia
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396.
Persons who have been found unfit to stand trial for a criminal offence, or not criminally
responsible by reason of mental disorder, will be placed in appropriate psychiatric facilities. The
director of the psychiatric unit or facility is responsible for the patients in the facility.
Article 12: Prompt and Impartial Investigation, and
Article 13: Allegations of Torture
397.
The Office of the Police Complaint Commissioner was created on July 1, 1998, replacing the
BC Police Commission as the body to investigate complaints lodged against municipal police in
British Columbia. The complaint procedure created for this purpose under the Police Act,
R.S.B.C. 1996, c. 367, provides for the appointment of an independent Complaint
Commissioner who is responsible for overseeing the handling of complaints against municipal
police officers. The Commissioner acts in the public interest to ensure that complaints are
handled in a manner specified by the Act. Specifically regarding complaints, the Complaint
Commissioner is responsible for the receiving and recording of complaints, and advising and
assisting complainants, as well as the officers complained against, chiefs of police and police
boards.
398.
The first step taken in every formal complaint against the municipal police is an internal
investigation conducted by the chief constable of the police department in question. If the
Complaint Commissioner is not satisfied with the internal investigation, he/she may order a
public hearing or recommend that the complaint proceed to a hearing. Retired judges generally
conduct these hearings.
399.
The Office of the Police Complaint Commissioner keeps statistics as to the numbers and kinds
of complaints received and prepares quarterly statistical reports. The first quarterly report of
2000 is filed with the Committee, along with the present report, as an example of the work
undertaken by the Commissioner. For the purposes of analyzing the quarterly report, it should
be noted that a “public trust complaint” includes complaints where physical or emotional harm
has been alleged.
400.
Complaints involving members of Aboriginal police departments are not governed by the Office
of the Police Complaint Commissioner, but rather the Special Provincial Constable
Complaint Procedure Regulation, BC Reg. 206/98. A copy of this Regulation is submitted
with the present report. Precise statistics as to the number of complaints lodged against
members of Aboriginal police departments are unavailable.
401.
Inmates held in provincial correctional centres also have rights of complaint established under
the Correctional Centre Rules and Regulations. Section 40 establishes the process for
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inmates to file written complaints to an officer, centre Director, District Director or Regional
Director. The person receiving the complaint must investigate the complaint and respond back
to the inmate within seven days. Section 41 establishes a process whereby inmates may make a
written complaint or grievance to the Director of Investigation, Inspection and Standards Office
(II&SO).
402.
In certain circumstances, such as when a handgun has been discharged to protect life or to
prevent grievous bodily harm, II&SO may also be called upon to investigate incidents involving
sheriffs. Ministry of the Attorney General Sheriff Services indicate that a “Critical Incident
Review Policy” is currently under development.
403.
A final complaint mechanism is the Ombudsman, which is established as an independent body
reporting to the province’s Legislature. Section 10 of the Ombudsman Act, R.S.B.C. 1996,
c. 340, states that the Ombudsman acting on a complaint or on his/her own initiative may
investigate a decision or recommendation made, an act done or omitted, or a procedure used
by an authority that aggrieves or may aggrieve a person. Authorities that may be the subject of
such an investigation include government ministries, municipalities, regional districts and
hospitals. The Ombudsman Act is filed with the Committee, along with the present report.
Article 14: Redress and Compensation
404.
There are two principal statutes which are designed to assist those who have been victims of
crime: the Victims of Crime Act, R.S.B.C. 1996, c. 478, and the Criminal Injury
Compensation Act, R.S.B.C. 1996, c. 85. While these Acts are not specifically aimed at
victims of torture, they provide services and support to all victims of crime, including those who
have experienced severe physical or sexual assault, and other forms of cruel and degrading
treatment.
405.
The following are the goals of the Victims of Crime Act, enacted on July 1, 1996:
To the extent that it is practicable, the government must promote the following goals:
(a)
to develop victim services and promote equal access to victim services at all locations
throughout British Columbia
(b)
to have victims adequately protected against intimidation and retaliation
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(c)
to have property of victims obtained by offenders in the course of offences returned
promptly to the victims by the police if the retention is not needed for investigation or
prosecution purposes
(d)
to have justice system personnel trained to respond appropriately to victims
(e)
to give proper recognition to the need of victims for timely investigation and prosecution
of offences
(f)
to have facilities in courthouses that accommodate victims awaiting courtroom
appearance separate from the accused and witnesses for the accused
(g)
to afford victims throughout British Columbia equal access to
(i)
(ii)
(iii)
courtrooms and prosecutors’ offices that are designed to be used by persons
with physical disabilities
interpreters for speakers of any language
culturally sensitive services for Aboriginal persons and members of ethnocultural
minorities
406.
The second victim-oriented Act, the Criminal Injury Compensation Act, is designed to
compensate people who have been injured or killed in BC as a result of certain criminal
offences. Notably, victims of torture (s. 269.1 of the Criminal Code) may seek compensation
under the Act. Compensation may involve a financial award as well as medical aid including
provision of artificial limbs, eyeglasses and hearing aids. Counselling may also be provided.
407.
In addition to the Victims of Crime Act and the Criminal Injury Compensation Act, under
the Crown Proceeding Act, R.S.B.C. 1996, c. 89, the provincial government is liable for torts
committed by its agents and officers. Thus, if a British Columbian suffers cruel or degrading
treatment at the hands of a government employee (including, for example, a municipal police
officer), then that person could launch a civil action against both the individual officer and the
province.
Article 16: Prevention of Other Acts of Cruel, Inhuman or Degrading
Treatment or Punishment
408.
The British Columbia Human Rights Code, R.S.B.C. 1996, c. 210, prohibits discrimination in
employment, housing, public services, publications on the grounds of race, colour, ancestry,
place of origin, religion, marital status, family status, physical or mental disability, sex or sexual
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orientation. Acts of cruel, inhuman or degrading treatment or punishment that do not amount to
torture could be encompassed by the prohibitions contained in the Code. For example, human
right complaints involving harassment in the workplace may involve cruel, inhuman or degrading
treatment. Jurisprudence has made it clear that intent to discriminate is not required for conduct
to contravene the Code.
409.
The British Columbia Human Rights Commission, an independent body, administers the
Human Rights Code. Any person may file a complaint alleging discrimination contrary to the
Code. If the complaint falls within the jurisdiction of the Code, it will be referred to a Human
Rights Officer for investigation. If the investigation reveals evidence of discrimination and the
mediation has proved unsuccessful, the investigator will forward his or her report to the
Commissioner of Investigation and Mediation. The Commissioner can either dismiss the
complaint or refer it to the British Columbia Human Rights Tribunal for hearing.
410.
If a Tribunal member determines that discrimination has occurred, there are various remedies
that may be applied. First, the member must order the person to cease the contravention of the
Code and refrain from committing the same or a similar contravention. Other possible remedies
include: a declaratory order that the conduct complained of is discrimination contrary to the
Code; an order that the respondent take steps to ameliorate the discriminatory practice or
adopt and implement an employment equity program; or an order for compensation for lost
wages or expenses incurred by the contravention. Finally, damages to compensate for injury to
dignity, feelings and self- respect may also be awarded.
411.
The British Columbia Human Rights Commission (and its predecessor the British Columbia
Human Rights Council) plays an important public education role. Each year educational
programs are offered to children and adults, schools and businesses. For example, in the
1998-99 fiscal year, the Commission’s Education and Communication program initiated a
50th Anniversary Steering Committee made up of representatives from both provincial and
federal government agencies in order to coordinate a variety of educational programs to
recognize the 50th anniversary of the Universal Declaration of Human Rights.
Documentation
412.
The following documents are filed with the Committee, along with the present report:
•
•
•
•
Code of Professional Conduct Regulation, BC Reg. 205/98
Use of Force Regulation, BC Reg. 203/98
Corrections Branch Standards: Use of Reasonable Force
Deputy Sheriff’s Code of Conduct
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•
•
•
Office of the Police Complaint Commissioner — Statistical Report: January 1 to
March 31, 2000
Special Provincial Constable Complaint Procedure Regulation
Ombudsman Act, R.S.B.C. 1996, c. 340
Appendix BC-1
Additional Materials Relevant to Article 2:
Provincial Policing Standards
Provincial Standards for Municipal Police Departments in British Columbia, the first of their kind
in Canada, were developed in 1992 as a joint project of the Police Commission and the British
Columbia Association of Chiefs of Police by police officers seconded to the Commission. The
Standards identify over 400 areas in which a police department should have policies, and audits are
based on those Standards. The Standards aim to identify minimum acceptable standards for police that
are uniformly applicable in all municipal departments.
The Standards addressing areas relevant to the UN Convention include the following:
(a)
Internal Investigations
•
Management Standard D6.1.1 requires the establishment of administrative policies for the
purposes of creating a process to ensure that the integrity of departmental impartiality, fairness
and objectivity is maintained when investigating members of the department.
•
Management Standard D6.1.2 requires the establishment of written policy that specifies the
activities of the internal investigation function, including recording, registering and controlling the
investigation of complaints against officers; supervising and controlling the investigation of
alleged or suspected misconduct within the department; maintaining the confidentiality of internal
investigation and records; and acting as a resource for line supervisors.
•
Operations Standard D6.2.1 details that a written policy requires the department to investigate
all written complaints against the department or its employees in accordance with the Police
Act.
•
Operations Standard D6.2.3 notes that it is policy that the department maintain liaison with
crown counsel in investigations involving alleged criminal conduct on the part of an employee.
(b)
Prisoner Transportation
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•
Operations Standards D14.2.7 and D14.2.8 require the establishment of written policies
describing methods to be used in transporting mentally disturbed, handicapped, sick or injured
prisoners including how and when prisoners are to be restrained.
(c)
Detention Facilities
•
Standard E1.2.1 requires that detention facilities provide the following minimum conditions for
prisoners: sufficient lighting; circulation of air in accordance with local public health standards;
and a bed and bedding for each prisoner held in excess of eight hours.
•
Standard E1.4.1 requires the establishment of a written policy to govern the securing of firearms
in the holding facility.
•
Standard E1.4.4 requires a security alarm system linked to a designated control point to ensure
the safety of prisoners and staff.
•
Standard E1.4.5 requires that a video surveillance and recording system be used in all prisoner
booking areas to protect officers from unfounded allegations or, alternatively, to provide
evidence if an investigation is launched.
•
Standard E1.4.8 establishes specific booking-in procedures, including the recording of
medications taken by the prisoner as well as his or her physical and psychological condition.
•
Standards E.1.4.9 and E.1.4.10 require that young persons be detained separately from adult
prisoners and that female prisoners be detained separately from male prisoners.
•
Standard E1.4.11 calls for the establishment of a written policy describing methods for
handling, detaining and segregating persons under the influence of alcohol or other drugs or who
are violent or self-destructive.
•
Standard E1.4.14 establishes that a journal be maintained in which significant or unusual
occurrences are recorded, in addition to all other detention facility inspections required by these
standards.
•
Standard E1.5.1 requires a written policy identifying the policies and procedures to be followed
when a prisoner is in need of medical assistance.
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•
Standards E6.1.2 and E6.1.3 require the development of a written policy to ensure that: a
prisoner’s opportunity for lawful release from custody is not impeded; every effort is made to
provide privacy in contacts between counsel and prisoners; and every prisoner has access to a
telephone, telephone directory and legal aid assistance.
(d)
Use of Dogs
•
Management Standard D2.1.5 requires the establishment of a written policy that specifies the
criteria for the deployment of dogs.
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PART IV
Measures Adopted by
the Governments of the
Territories
Canada’s Fourth Report on the United Nations’
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Nunavut
Introduction
413.
This report outlines the activities of the territory of Nunavut relevant to the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment between
April 1999 and April 2000.
General Information
414.
On April 1, 1999, the new territory of Nunavut was created out of the Northwest Territories
pursuant to section 3 of the Nunavut Act, S.C. 1993, c. 28. Modeled on the Northwest
Territories Act and the Yukon Act, the Nunavut Act bestows on the Government of Nunavut
powers equivalent to those possessed by the other two territories. Under section 29 of the
Nunavut Act, all territorial laws in force in the Northwest Territories immediately before the
division were duplicated in Nunavut on April 1, 1999. All other laws in force in the Northwest
Territories at that time (e.g., federal laws, common law) were continued in Nunavut, to the
extent that they could apply to the new territory.
Article 2: Legislative, Administrative, Judicial or Other Measures
415.
The law and policy of Nunavut in relation to the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment has not been modified in Nunavut
during this reporting period and therefore remains as outlined in relation to the Northwest
Territories in the First, Second and Third Reports of Canada.
Documentation
416.
Nunavut
The Nunavut Act, S.C. 1993, c. 28, is filed with the Committee, along with the present report.
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Northwest Territories
Introduction
417.
This report updates the information contained in the Third Report of Canada on the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment with respect to developments in Northwest Territories between April 1996 and
April 2000.
Article 2: Legislative, Administrative, Judicial or Other Measures
418.
There have been no changes to the legislation or policies of the Government of the Northwest
Territories during the reporting period. Legislative measures outlined in Canada’s Third Report
remain in effect.
Article 10: Education and Training
419.
No programs on the effects of torture were provided to medical personnel during this reporting
period.
Article 16: Prevention of Other Acts of Cruel, Inhuman or Degrading
Treatment or Punishment
420.
No relevant changes have been made to the Mental Health Act since the release of Canada’s
Third Report.
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106
Canada’s Fourth Report on the United Nations’
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Yukon
Introduction
421.
This report updates the information contained in the Third Report of Canada on the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment with respect to developments in Yukon between April 1996 and April 2000.
Article 2: Legislative, Administrative, Judicial or Other Measures
422.
The Yukon’s Torture Prohibition Act, S.Y. 1988, c. 26, as previously reported, provides the
primary means of civil redress against government officials for victims of torture. No
amendments have been made to this Act and no cases were brought under this Act for the
period of this report.
423.
The Corners Act, S.Y. 1986, c. 35, provides for an investigation and subsequent inquiry of a
death where there is reason to believe the death resulted from violence, misadventure or unfair
means or a result of negligence, misconduct or malpractice.
424.
The Ombudsman Act, S.Y. 1995, c. 17, allows an independent Ombudsman to investigate, at
no cost to the complainant, how Yukon government departments, agencies, commissions and
boards do business, their actions, decisions, practices and procedures.
Article 12: Prompt and Impartial Investigation,
Article 13: Allegations of Torture, and
Article 14: Redress and Compensation
425.
The Ombudsman Act ensures prompt and independent investigation into complaints against
public officials. For the time period of this report, no complaints had been made to the
Ombudsman regarding the use of torture and other cruel, inhumane or degrading treatment or
punishment.
426.
During the reporting period, there were 50 reported complaints to the Public Complaints
Commission against Royal Canadian Mounted Police (RCMP) in Yukon. Of these, 33 were
determined to be unfounded, and seven were investigated and then closed. At the end of the
time period, 10 complaints were still active.
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427.
There were no complaints made by correctional inmates with regard to corrections officers
charged with the custody of offenders in Yukon under the Corrections Act, S.Y. 1986, c. 26,
during the period covered by this report.
428.
There were no complaints pursuant to the Torture Prohibition Act, during the period covered
by this report.
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