Comments on Canada’s compliance with Article 3
of the Convention against Torture
28 April 2005
1. Incorporation of CAT into refugee protection provisions
Canada’s Immigration and Refugee Protection Act, which came into
effect in June 2002, provides for the protection against a claimant’s removal
to a situation where they would be personally subjected “to a danger, believed
on substantial grounds to exist, of torture within the meaning of Article
1 of the Convention Against Torture” (IRPA s. 97(1)(a)). A claimant
who meets this definition is a “person in need of protection.” However,
s. 115(2) of IRPA explicitly derogates from the non-refoulement norm in certain
cases. Moreover, as discussed below there are a number of significant operational
and procedural problems as well as statutory barriers to protection. As a
result, protection from refoulement to torture is not consistently and universally
available to those who require it.
2. Non-implementation of the Refugee Appeal Division
The Immigration and Refugee Protection Act, as enacted by the Canadian
legislature in 2001, gives a claimant the right to appeal a negative decision
of the Refugee Protection Division to the Refugee Appeal Division (IRPA s.
110-11). However, when the Executive implemented the Act in 2002, it
refused to implement the sections that give claimants the right to the appeal
on the merits. At the same time, the Act reduced the number of Board
members hearing a claim from two to one, with the result that since the implementation
of the Immigration and Refugee Protection Act refugee claimants have
been heard by a single decision-maker with no right of appeal on the merits.
Survivors of torture and others fearing torture have been wrongly rejected
and found no recourse within the Canadian system to correct the error.
One such claimant was Enrique Falcón Ríos, whose petition was
upheld by the Committee against Torture in December 2004 (Communication
No. 133/1999). The significance of the absence of a review on the
merits is discussed in some detail in the 2000 Report on Canada by the Inter-American
Commission on Human Rights, at paras. 104ff. (http://www.cidh.oas.org/countryrep/Canada2000en/table-of-contents.htm)
3. Exclusion clauses
The Act applies the exclusion clauses of section E and F of Article 1 of
the Refugee Convention not only to Convention refugees, but also to “persons
in need of protection”, that is persons at risk of torture (IRPA s. 98).
Thus the Act fails to respect the absolute prohibition on return to torture
contained in Article 3 of the Convention against Torture.
4. Extradition
A person who is subject to extradition cannot pursue a refugee claim under
the Immigration and Refugee Protection Act and an order to surrender
for extradition is a deemed rejection of a refugee claim (s. 105). Nor
may a person subject to extradition apply for a Pre-Removal Risk Assessment
(s. 112(2)(a)). Those subject to extradition who fear torture must rely
on the Extradition Act, which provides no judicial mechanism for assessing
the risk of torture, but simply states that the Minister “shall refuse to
make a surrender order if the Minister is satisfied that (a) the surrender
would be unjust or oppressive having regard to all the relevant circumstances”
(Extradition Act, s. 44). No reference is made in the Extradition
Act to Canada’s obligations under Article 3 of the Convention against
Torture.
5. Ineligibility on security and other grounds
Claimants are ineligible to make a refugee claim if they are found inadmissible
on grounds of security, violating human or international rights, serious criminality
or organized criminality (IRPA s. 101(f)). These categories of inadmissibility
are very broad, including potentially large numbers of people who have no
personal responsibility for any wrong-doing (for example, members of an organization
that has engaged or is engaging in terrorism, even if they were not aware
of any engagement in terrorism or were not members of the organization at
the time it engaged in terrorism.) Claimants found ineligible,
as well as those excluded by the Refugee Protection Division (see above point
3), must rely on the Pre-Removal Risk Assessment (PRRA) to protect them from
removal to torture. This mechanism offers them inadequate protection
in several important ways:
a) The PRRA applicant is heard not by the Refugee Protection
Division of the Immigration and Refugee Board, an independent quasi-judicial
tribunal, but by a relatively junior civil servant working in Citizenship
and Immigration Canada. There is no automatic oral hearing, but only
in very rare circumstances an interview with the officer, where counsel may
be present but is allowed only a very limited role.
b) The applicant cannot be granted refugee protection,
but only a stay of removal (IRPA, s. 114(1)(b)).
c) The risk to the applicant will be balanced against
the danger that the person constitutes to Canada (IRPA, s. 113(d)).
The ineffectiveness of the PRRA remedy may be inferred by the exceedingly
low acceptance rate of 1.5% (statistic for 2004).
6. Security certificates
In addition to the security ineligibility provisions mentioned above, the
Immigration and Refugee Protection Act provides for a separate process,
including mandatory detention and evidence presented in the absence of the
person and their counsel, where two Ministers have signed a certificate against
the person. There are currently five men subject to security certificates
in Canada, four of whom remain in detention, the fifth having been released
under extremely restrictive conditions. All five are Muslim Arabs.
All five men have argued that they would be subject to torture if deported
to their country of origins. In at least two of the cases the Canadian
government accepted that the fears of torture are well-founded, but sought
to return them anyway. (These cases were sent back for reconsideration on
other grounds.) The security certificate procedure has been widely criticized
both internationally (see the IACHR’s 2000 Report on Canada, cited above)
and in Canada by legal academics and practitioners. A copy of an October 2004 open letter to the Minister
of Public Safety and Emergency Preparedness signed by over 40 Canadian law
professors and NGO legal networks is attached. The Minister has to
date failed to reply to the concerns set out in the letter.
7. Deportation to torture
As noted, the government of Canada maintains that it may deport people to
a danger of torture, despite the absolute prohibition contained in Article
3 of the Convention against Torture. They base their position in the Supreme
Court of Canada’s failure to recognize the absolute bar to return to torture
in Suresh
v. Canada ([2002] 1 SCJ 3). In that case, the Court observed that
there may be exceptional circumstances which could justify return to torture
in certain cases. As a result of the Court’s failure to explicitly uphold
the absolute prohibition, Department of Justice lawyers have in a number of
cases sought to invoke the generalized “war on terrorism” as exceptional circumstances
sufficient to justify refoulement. Further, government lawyers consistently
seek to undermine the status of the Convention Against Torture and other
human rights treaties to which Canada is a party by arguing that they are
not bound to comply with them. (See especially Ahani
v. Canada (2002) 208 DLR (4th) 66.)
8. Safe Third Country
On 29 December 2004, the Canadian government designated the US a safe third
country for the purposes of refugee claims. As a result, most claims
made at the US-Canada border are ineligible, the claimants being instead expected
to seek asylum in the US. This may lead to indirect return to torture,
since the US does not in all respects comply with Article 3 of the Convention
against Torture. Furthermore, according to the Immigration and Refugee
Protection Act, the government, when considering whether to designate
a safe third country, is required to take into account whether the country’s
policies and practices with respect to obligations under the Convention Against
Torture (IRPA s. 102(2)(b)). Given the serious allegations of violations
by the US of their CAT obligations, the US ought not to have been designated
a safe third country.
