CAT/C/55/Add.8
9 January 2004
Original: ENGLISH
COMMITTEE AGAINST TORTURE
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 19 OF THE CONVENTION
Fourth periodic reports of States parties due in 2000
Addendum
CANADA* **
[30 August 2002]
* The information submitted by Canada in accordance with the consolidated guidelines for the initial part of the reports of States parties is contained in HRI/CORE/1/Add.91.

The initial report submitted by the Government of Canada is contained in document CAT/C/5/Add.15; for its consideration by the Committee, see documents CAT/C/SR.32 and 33 and the Official Records of the General Assembly, Forty-fifth session, Supplement No. 44 (A/45/44), paras. 218-250.

The second periodic report submitted by the Government of Canada is contained in document CAT/C/17/Add.5; for its consideration by the Committee, see documents CAT/C/SR.139 and 140 and the Official Records of the General Assembly, Forty-eighth session, Supplement No. 44 (A/48/44), paras. 284-310.

The third periodic report submitted by the Government of Canada is contained in document CAT/C/34/Add.13; for its consideration by the Committee, see documents CAT/C/SR.446, 449 and 453 and the Official Records of the General Assembly, Fifty-sixth session, Supplement No. 44 (A/56/44), paras. 54-59.

The annexes to the report submitted by Canada may be consulted in the secretariat’s file.
** In accordance with the information transmitted to States parties, regarding the processing of their reports, the present document was not formally edited before being submitted for translation.

* In geographical order, from east to west.

Abbreviations
APEC Asia-Pacific Economic Cooperation
B.C. British Columbia
CAPRA Clients, Analysis, Partnerships, Response, Assessment
CCRA Corrections and Conditional Release Act (Canada)
CCVT Canadian Centre for Victims of Torture
CF Canadian Forces
CIC Citizenship and Immigration Canada
CME Continuing Medical Education (British Columbia)
CTP Cadet Training Program (RCMP)
FGM female genital mutilation
ICCPR International Covenant on Civil and Political Rights
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the Former Yugoslavia
IERT Institutional Emergency Response Teams
II&SO Investigation, Inspection and Standards Office (British Columbia)
IRB Immigration and Refugee Board
LOAC The Law of Armed Conflict at the Operational and Tactical Level
NDA National Defence Act (Canada)
NGO non-governmental organization
NRC National Review Committee
OPP Ontario Provincial Police
PDRCC Post Determination Refugee Claimants in Canada
PEI Prince Edward Island
PFW Prison for Women
PRRA Pre-Removal Risk Assessment
PSA Police Services Act (Ontario)
RCMP Royal Canadian Mounted Police
SHU Special Handling Unit
UN United Nations

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 (with 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.

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 indicate 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 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.

I. OVERVIEW

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 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.

II. MEASURES ADOPTED BY THE GOVERNMENT OF CANADA

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 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 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 inaccordance 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. (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. Canada)1 and the UN Human Rights Committee (Adu, Badu and Nartey)2.
(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.

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 27 November 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.

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 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 para. 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 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 worldwide. 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 18 December 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 23 December 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 16 May 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.

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:
• 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 aggravated murder in the first degree, and who, if convicted of those crimes, could face the death penalty.4

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 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.

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:
• 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.

60. 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.”

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).

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.

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.

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 re-qualification 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.

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, 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.

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 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 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:
• 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.

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.

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.

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, non-emergency 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.

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 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 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 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.

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. 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 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 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:
• 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

150. 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:
• 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

153. 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 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.

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.
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 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

171. 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.

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.