Subcommittee on International Human Rights Committee on June 5th, 2007

[Kevin Sorenson, Conservative, Crowfoot, AB]

If we fear for the offender's life or for their well-being in our penitentiaries, sometimes I would imagine Corrections or the correctional officers or whoever would see that they get segregation. The one who might become the victim of other inmates would then be segregated in solitary confinement.

On one hand, it may be done for their good, for their protection, but on the other hand, they might be saying this is torture. So again, we come to the definition of what's happening here.

[Kim Pate]

I would suggest two things to you.

One, a mechanism like this and an independent international body that might visit could make an assessment that might assist the government in this not being seen as torturing. That would be one point.

Secondly, in my experience the people who work in corrections—senior managers, front-line correctional officers—are all in general agreement that those situations are not beneficial. In fact, they would like some additional mechanisms to help push for alternatives. I would suggest that there would be fairly good support for looking for those sorts of alternatives.

Those are the sorts of discussions I have all the time. In the last few days I was in three of the women's prisons dealing with exactly those issues.

[Kevin Sorenson, Conservative, Crowfoot, AB]

I'm just wondering if Mr. Tremblay has any comments on any of the questions that have been posed.

[Philippe Tremblay]

Yes, I would like to briefly come back to the definition of torture. In fact, under international law, torture can be defined as acute suffering inflicted by a public agent—in other words, an agent of the government—either intentionally or with the approval of an agent of the government, with a view to extracting a confession or for the purposes of punishing the detainee. However, it is important to remember that the actual name of the U.N. convention is the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. All of those other types of treatment are subject to the same prohibition as torture, in the strict sense of the term.

But let's briefly recall the infamous case of mistreatment of persons with mental disabilities at the Centre hospitalier Robert-Giffard in Quebec. As I recall, the patient had spent six or seven days in his excrement. Now the question was never put to the Committee against Torture, but having read some of the comments made by the Committee, I can assure you that it would have considered this type of treatment to be cruel, inhuman or degrading, within the meaning of the Convention, even though it wasn't torture per se. It is probable that hospital staff did not intend to torture the individual, in the strictest sense of the term, but this type of negligence is strongly condemned and prohibited under the United Nations Convention against Torture.

[The Vice-Chair, Liberal, Mario Silva]

Thank you, Mr. Tremblay.

Before we get to the next member to ask questions, I just want members to be aware of the fact that concerning the definition of torture, Canada has already signed on to that convention. There is an international convention against torture that many countries have signed on to, and the definition is already established.

We're not arguing about the definition of torture. What we are discussing here is the optional protocol that deals with mechanisms of visiting jails and so forth. So we're not going to revisit a debate about what is torture or what's not torture. That has already been established, and Canada in fact agrees and supports the present convention on torture and the definition that is within that convention.

Mr. Marston, you're the next questioner.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Mr. Chair, after your remarks just there, you may find my intervention interesting.

I think when we're talking torture, people today should take a moment and watch a movie called The Road to Guantanamo, because there are new sophisticated tortures—for example, tying a person's feet to the floor in a crouched position in a white room with loud music for hours on end, and sleep deprivation. We tend to think of torture as something like you've seen in a movie about World War II, suggesting some of that type.

The UN conventions that we signed on to and are party to are the bare minimum in many cases that we can, as human beings, respect. Just look at the signatories: Azerbaijan; Chile; Mexico, which is one of the state parties where we've had Canadians with extreme difficulties; Sierra Leone; and Turkey. When you see those countries signed on ahead of a progressive country like Canada, that is an embarrassment to me.

When one considers lately the stories of how incarcerated Canadians abroad are being treated—Almalki, Arar, perhaps Huseyin Celil in China—at least two of these people have spent time in coffin cells. And consider the Canadians in Mexico, when the police are investigating crimes down there, and the treatment they're receiving. I think people should pause for a second and understand there are 3,000 Canadians incarcerated worldwide right now. There are allegations of torture in a number of areas.

I have a copy of a letter very similar to what you had from the minister, and it says that the Government of Canada actively participated in the negotiations of the optional protocol. In fact, it shepherded it through the UN. It voted in favour of its adoption, and Canada supports the fundamental elements. This is a letter that says we should sign it.

My understanding is that there is a push and shove between this government and the provinces. I don't know whether that's around cost, but that's what I'm hearing. Have you heard anything along those lines?

[The Vice-Chair, Liberal, Mario Silva]

Ms. Pate.

[Kim Pate]

We certainly hear rumours.

And it would be our recommendation that this committee could actually assist this process by asking the Department of Justice, which has carriage of the implementation of adherence to international instruments, to actually take steps to engage the provinces and territories and determine what are the financial needs and other mechanisms, if there are mechanisms needed in some of those areas, to in fact obtain that information and then be able to make the decision accordingly.

[The Vice-Chair, Liberal, Mario Silva]

Mr. Marston.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

The other thing we have happening within our own country is that we have people who are held under security certificates for five years in a country whose laws talk about innocence until proven guilty. Even though recently some of them have been released under house arrest, wherever they go they have to structure, with the department, who is going to follow them. The timing, when they're out, is so bad that when they pass through street lights, if they miss one they might not make the timing. And if they want to go into their backyard, someone has to go out with them and come back in with them. Every move they make is monitored. There are people who would call that into question as well.

I think it's important that Canada gets up front and makes it clear to the world that we take the definition of torture very seriously, and we also take seriously the definitions in our Canadian law, that we can't circumvent them and we shouldn't circumvent them. In this case I have very strong feelings that this has been a critical mistake made in this country.

[The Vice-Chair, Liberal, Mario Silva]

Thank you.

Dominique.

[Dominique Larochelle, Member of the Board of Directors, Canadian Association of Elizabeth Fry Societies]

Good morning. I would like to comment on what Mr. Marston said.

The situation is equally troubling as regards the use of statements or testimony obtained under torture. As regards security certificates, the Harkat and Charkaoui cases have come become the courts or may still be before the courts. The Government of Canada had used evidence in those cases—for example, with Abu Zubaydah et Maher Arar, where serious allegations of torture were upheld. Such evidence may still be coming forward in cases examined before courts of law here in Canada. That is certainly a concern.

I would like to add that in the Arar case, Justice O'Connor's report recommended increased monitoring mechanisms and more transparency with a view to controlling government activity. In addition, the Quebec Bar voted last Saturday in favour of a resolution aimed at encouraging the Canadian government to implement the monitoring mechanisms recommended by Justice O'Connor. So, there is a well-established desire, at least among the legal profession in Quebec, to increase monitoring mechanisms.

[The Vice-Chair, Liberal, Mario Silva]

Thank you.

Mr. Marston.

You have a minute left.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

I have just one last comment, and it won't take that long.

To have someone come in and talk to this committee from the Department of Justice, I think, is crucial. If there's a problem we need to confront head on, before we give our advice to the government, I think that's very important.

Thank you.

[The Vice-Chair, Liberal, Mario Silva]

Thank you.

Ms. Pate, you have a few seconds.

[Kim Pate]

I would say that two specific things be requested that the Department of Justice report on, and those would be the steps that have been taken to engage the provinces and territories in this regard and the potential financial implications, if any.

[The Vice-Chair, Liberal, Mario Silva]

Thank you very much.

We will now go to our second round.

Mr. Khan, please proceed.

Mr. Sorenson.

[Kevin Sorenson, Conservative, Crowfoot, AB]

I'll ask another question.

Mr. Marston brought up the certificates. And again, that was a measure that was put in to protect our country, to protect the security of our country. It was a measure that was needed, that police forces were asking for, that so many different groups were asking for. One of the reasons we don't extradite some people is that we've signed conventions that say we will not extradite to a country where they will be tortured.

My question is, does our signing this supplementary protocol in any way tie the hands of governments in what they can do in a case similar to the certificates? In a case where we're talking about national security or in a case where, through intelligence-gathering agencies, they may be suspect, and we can't extradite them because of this, would this other protocol do the same thing in any manner?

[Kim Pate]

Ms. Larochelle is more expert on this than I am, and Monsieur Tremblay may have—

[Dominique Larochelle]

Can I answer in French?

[The Vice-Chair, Liberal, Mario Silva]

Let's start with Dominique and then Monsieur Tremblay.

Go ahead.

[Dominique Larochelle]

I will give Mr. Tremblay an opportunity to answer.

[Mario Silva, Liberal, Davenport, ON]

Mr. Tremblay, would you like to begin?

[Philippe Tremblay]

I would simply like to say that is a whole other debate. In fact, the Optional Protocol, the mechanisms it provides for and the preventive visits in no way call into question the reasons behind the arrest and detention of persons held in these places. The idea is really to look at how these detainees are being treated. I would say that Mr. Sorenson's questions fall more within the jurisdiction of organizations such as the Working Group on Arbitrary Detention. I am referring here to the U.N. group which came to Canada in June of 2005, if I'm not mistaken.

However, to answer your question, I would say that the Optional Protocol has nothing to do with that kind of debate. It is completely different. Of course, Canada will continue to meet its commitments under the Convention against Torture. The Protocol simply builds on the obligation to prevent torture which, as I said, is laid out in Article 2 of the Convention.

[Kevin Sorenson, Conservative, Crowfoot, AB]

I don't know if Madame Larochelle wanted to answer, but I do have one other question that you may want to answer at the same time.