Mr. Speaker, the response is as follows:
a) The government of Canada is strongly committed to the prevention, the prohibition and the elimination of torture and other forms of cruel and inhumane or degrading treatment or punishment, globally and at the national level. Canada is a party to the Convention against Torture and Other Forms of Cruel, Inhuman and Degrading Treatment or Punishment. Canada actively participated in the negotiation of the optional protocol to the Convention Against Torture, the Optional Protocol. It supports its principles and voted in favour of its adoption by the UN Commission on Human Rights and the UN General Assembly in 2002. We believe that the optional protocol can be an important tool in protecting human rights. Indeed, Canada has many mechanisms already in place to protect persons in places of detention from torture. These include correctional investigators, police oversight agencies, ombudsmen, human rights commissions, and the courts. Canada collaborates with many international mechanisms that can review conditions of detention in Canada. These include the committee against torture and the human rights committee through the periodic reporting process and individual complaints mechanisms, as well as the working group on arbitrary detention through its 2005 visit to places of detention in Canada. The Government of Canada has extended a standing invitation to all UN special procedures to visit Canada, including the special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment.
The government is currently considering becoming a party to the optional protocol as it pledged to do when it presented its candidacy for a seat at the Human Rights Council in 2006. Canada takes its international human rights obligations very seriously. Accordingly, the general practice for human rights treaties has been to become party only after Canada is satisfied that its domestic laws and policies meet the obligations they impose or has clearly identified the required measures to meet these obligations. Consultations and analysis began after the adoption of the optional protocol, and are still ongoing. Ensuring that domestic laws and policies will meet international obligations requires that extensive and complex consultations involving multiple departments and levels of government be undertaken, as explained in responses c) and d), below. The complexities of establishing independent proactive domestic visiting mechanisms, particularly in a federal state, with a vast territory, must not be underestimated. This work takes time. Only after this analysis is completed will Canada be in a position to make a decision as to whether to become a party to the optional protocol.
b) Owing to the extensive consultations required and the complexities of the issues raised by the implementation of the optional protocol, no timeline has been developed for Canada to become a party to the optional protocol.
c) The government is committed to actively considering whether Canada should become a party to the instrument. However, the analysis is complex and many issues require further clarification.
The length of time for the review process to determine whether Canada should become a party to a human rights instrument depends on several factors:
1) whether the treaty obligations impact solely on matters under federal jurisdiction or whether they relate to matters under the responsibility of the provinces and territories and First Nations;
2) whether the analysis of the domestic implications of becoming a party is complex involving many issues and numerous federal departments and agencies, as well as the provinces and territories and First Nations; whether new measures are likely to be required, including new legislation and significant resources;
3) the level of priority and resources dedicated to the review process across federal departments and in the provinces and territories;
4) the level of priority of other international human rights work including: review of other treaties for ratification; establishing Canada's positions on human rights issues and negotiating positions on new instruments at various multilateral fora; preparation of periodic reports to UN committees; visits by international bodies and responding to individual complaints.
With respect to the optional protocol, in particular, the process is complicated due to several factors:
1) the scope of “places of detention” is broad and includes: prisons, police stations, immigration detention centers, youth facilities and psychiatric hospitals. Responsibility for these institutions falls under several federal departments and agencies as well as the provinces and territories and, in some instances, First Nations;
2) the analysis of the issues is complex and resource intensive. Some of the issues include: determining whether existing bodies at federal, provincial and territorial levels that conduct visits to places of detention meet the requirements of the protocol (i.e. whether they conduct “regular visits”; whether they are sufficiently independent from government; whether privacy legislation will permit the sharing of personal information with the UN subcommittee and other information sharing issues). If new measures are required, then an analysis of the potentially substantial resource implications is also required;
3) several concepts, such as the requirement of “regular visits”, are not well defined and could have an impact on resource requirements. The Government of Canada is presently analysing these concepts with a view to clarifying their meaning.
The experience of other countries shows that there are challenges to the implementation of the optional protocol. In order to ensure that Canada can live up to its future commitments and preserve its international reputation, we should continue to do the necessary homework.
d) It is more apt to speak of “challenges” related to Canada becoming a party to the optional protocol than “concerns”.
In examining whether to become a party to the optional protocol, a decentralized federal state such as Canada faces a particular set of challenges. As a first step, we must determine whether the federal, provincial and territorial mechanisms to prevent torture that are already in place in Canada, are in accord with the provisions of the optional protocol. This analysis includes determining whether existing bodies at federal, provincial and territorial levels that conduct visits to places of detention meet the requirements of the optional protocol regarding regular visits to places of detention and, if not, what is needed to make them compliant with the requirements of the optional protocol. Further, there is a need to determine the frequency of monitoring visits to places of detention, as the frequency of such visits will have a direct impact on the financial implications for Canada implied by the protocol. The analysis also includes whether the mechanisms already in place are sufficiently independent from government and whether privacy legislation will permit the sharing of personal information with the UN subcommittee on the prevention of torture and other information sharing issues. We will also need to examine to what extent the optional protocol requires, or it would be desirable to, ensure proper communication and coordination of work between visiting mechanisms.
As a matter of policy, Canada does not ratify or accede to an international treaty until satisfied that we are in compliance with its provisions. While Canada, as a party to the optional protocol, would be responsible for compliance with its provisions under international law, the constitutional division of powers mandates that implementation be carried out at the federal, provincial and territorial levels. The Canadian government consults with the provinces and territories to seek their support for signature, ratification or accession.
e) There has not been a change in the government's position with respect to the optional protocol.
f) The House of Commons Subcommittee on International Human Rights is studying this issue. We will closely follow the work of the subcommittee and look forward to examining its recommendations.
g) The government has not requested or commissioned any formal studies or evaluations of the optional protocol. Therefore, no individuals or organizations have been involved in such activities, no related costs have been incurred, and no recommendations have been issued.
The normal process when the government is considering becoming a party to a human rights treaty is for an internal analysis to be done of the provisions of the treaty in order to determine the treaty's domestic implications. Different departments, including Department of Justice, Foreign Affairs and International Trade Canada, and Public Safety Canada, have been involved in the analysis of the optional protocol and its domestic implications. The process is ongoing.