This is the second article in a three-part series on Canada’s historical reluctance to ratify the United Nations’ Optional Protocol with the Convention against Torture (OPCAT). Despite being one of the early champions of this international law that exists to prevent torture in civilian and military detention centres, Canada has still not officially adopted the agreement. The first article examines the lack of transparency and bureaucratic reticence toward OPCAT. The second part examines the circumstances in Canadian detention centres—and care and medical environments—that urgently call for this greater accountability. The third part examines precedents in Canadian military use of torture alongside Canada’s spotty human rights track record.
The turbulent past year has cast a spotlight on the systemic problems with Canada’s carceral system, from criminal incarceration to migrant detention. This past summer saw protests against police brutality and the inhumane conditions endured by undocumented migrants in Canada, as well as calls to defund bloated police budgets and growing momentum for the prison abolition movements.
Despite this mounting criticism, there has been little discussion of a key international treaty on human rights that Canada has repeatedly failed to ratify. In September, Canadian Dimension published an exposé on the reluctance of Canadian government officials to sign the Optional Protocol to the Convention against Torture (OPCAT)—an international human rights agreement that Canada helped set up in the first place.
OPCAT provides concrete measures for prevention and oversight that go beyond the gesture of opposing torture through the Convention. By ratifying OPCAT, Canada would be mandated to create a National Preventive Mechanism (NPM) to ensure that places of detention abide by internationally defined standards of humane treatment. Given the scope of the UN’s definition of torture, OPCAT could potentially apply beyond civilian and military prisons to include other places where people are forcefully detained, such as immigration detention centres or mental health facilities.
For Canada to ratify OPCAT, or introduce any oversight over federal institutions, would need to go hand-in-hand with the introduction of national standards, against which Canada’s compliance can be measured. Yet, the foot-dragging of Canadian legislators on the issue of torture prevention has received little coverage in Canadian media. As a result there is a lack of public awareness of the effects that this international law might have across different sectors of society.
Same system, different name
The Canada Border Services Agency (CBSA), for instance, is notoriously lacking in independent oversight, with hundreds of complaints about discrimination, abuse and harassment by officers filed just in the last two years. As Canada’s Correctional Investigator Ivan Zinger previously told Canadian Dimension regarding Canada’s current oversight agreement with the International Red Cross, “It is very odd for an advanced democracy to use that.”
Outgoing Amnesty International Secretary General Alex Neve expressed remorse that despite the organization having campaigned for decades on torture prevention, Canada had still not lived up to its promise to ratify OPCAT. “This would be quite high on the list in terms of confounding and disappointing files,” he told Canadian Dimension just prior to his official departure, “that over the course of those 20 plus years, we have not been able to get Canada to sign onto something so elementary.”
“While torture in Canadian prisons is certainly nowhere near as horrific or extensive as it is in many countries, that’s not to suggest that isn’t a concern,” he said. Pointing to the failure of Canada’s existing inspections mechanisms with respect to the practice of solitary confinement, Neve added that in some circumstances it has been used in ways that amount to torture.
As reported by Canadian Dimension in June, the CBSA has begun normalizing the use of surveillance technology, like GPS bracelets, to track migrants outside of prisons. This was prompted in part by the quarantines and release of detained migrants as COVID-19 infected migrant prisons. The surveillance tech has been promoted as an “alternative” to incarceration, but it ultimately distracts from Canada’s continued practice of indefinite detention of undocumented migrants.
The CBSA routinely sends migrants who are assumed to be at high risk of dodging deportation to maximum-security penitentiaries, where Canada has a history of locking them up in solitary confinement. Although there is a maximum term of 15 days for segregated confinement in criminal prisons, migrants are often subjected to it repeatedly because there is still no limit on the length of detention periods for migrants. The abuse of solitary confinement in Canadian prisons was severe enough that an alternative form of segregation, known as structured intervention units (SIUs), was implemented in November 2019.
In late November 2020, the abuse inherent in the closely-connected carceral and immigration systems in Canada was brought to public attention through the case of West African refugee Ebrahim Toure. Toure, who stood to be deported by the CBSA in December, was held for four and a half years at the Central East Correctional Centre, a maximum-security prison in Lindsay, Ontario. Toure’s detainment was ruled “cruel and unusual” and unconstitutional by Justice Alfred O’Marra in October 2018.
Kashif Ali, also an undocumented West African migrant, was detained for over seven years at four different maximum-security prisons, over 100 of those days spent in solitary confinement. Afghan refugee Soleiman “Soli” Faqiri died on December 15, 2016, at the Lindsay facility, where he was committed to solitary confinement despite his diagnosis of schizophrenia. Eyewitness reports documented how he was beaten to death, with a coroner’s report detailing over 50 signs of blunt impact trauma, yet no one has been held accountable for his killing.
Elsewhere, the story of a young Ojibwe man, Adam Capay, has begun to fade from public memory despite being one of the most shameful cases of unjust detention in recent Canadian history. When he was 19, Capay was arrested on minor charges and incarcerated for over six years. Although he struggled with mental health and addiction issues that contributed to his incarceration, the young man was held in solitary confinement in a windowless cell kept lit 24 hours a day—without trial—for over four consecutive years at the Thunder Bay and Kenora prisons.
Both of these prisons are notorious for overcrowding and violence, and for primarily detaining Indigenous inmates. Back in 2017, the Ontario Human Rights Commission reported on evidence of “serious distress” in prisoners held in Kenora’s isolation units, and the erosion of First Nations communities through the colonial carceral system.
And what exactly did Capay’s solitary confinement accomplish beyond sustaining immeasurable damage to his psyche, with the young man subsequently becoming a re-offender?
This was several years after the tragic case of teenager Ashley Smith, who had also lived with mental health issues leading up to her imprisonment. The 19-year-old had been held in state institutions that were ill-equipped to respond to mental health needs, and committed suicide in 2007 after over three years of solitary confinement at the Grand Valley Institution in Kitchener.
Yet today’s reformed SIUs have proven little different from solitary confinement. Law professor Adelina Iftene of Dalhousie University wrote an article for Policy Options in November 2020 describing how the old regime of solitary confinement in Canadian prisons was found to be unconstitutional. The changes introduced with the new SIUs are superficial: the greatest difference is that prisoners are allowed to spend at least four hours per day out of their cells, two of which are meant for “meaningful human contact.”
However, as Iftene wrote, there is “anecdotal evidence” of the CSC finding “creative ways” around reporting solitary confinement under the new legislation. There is also a stark lack of clarity around what “meaningful human contact” actually means.
Further independent investigation has shown that even with these mandated hours outside of SIUs, the reality does not reflect Canada’s new policy. A report published by the West Coast Prison Justice Society in November 2020 described how independent reviews of the new form of segregation can take months. Meanwhile, prisoner lockdown can last for days, and so-called therapeutic centres at prisons are “used to warehouse prisoners with mental health disabilities with very few resources.”
Years of findings by Canada’s Correctional Investigator also show that Canadian prisons are ill-equipped to provide accommodation to mental and physical disabilities, in addition to an increasing requirement to house sick, palliative, or terminally ill patients.
Further reporting was done by criminologists Jane Sprott and Anthony Doob, who were part of an independent panel of experts formed by Public Safety Canada that was tasked with evaluating whether the new law on SIUs was being implemented correctly. In a report published in October 2020, Doob and Sprott described the CSC as “unable or unwilling” to provide data up to September 2020. The independent panel was initially disbanded by Public Safety without having received necessary data from CSC. Following media blowback, however, the panel was quickly reinstated in spite of evidence of CSC’s shoddy data and record-keeping.
When data was eventually provided to the panel, it showed that CSC was still not in compliance with legislation on the minimum amount of contact outside of isolation cells. Findings showed continued unconstitutional treatment, where prisoners are routinely isolated for periods of over two months—well over the established maximum of 15 days—as well as enduring multiple stays in SIUs. Doob and Sprott also found that many prisoners who were sent to SIUs had pre-existing mental health conditions. This corroborated years of findings by the Correctional Investigator and a recent report by the UN Special Rapporteur for the rights of persons with disabilities.
In the care of the state
With its potentially broad application to places of detention, the preventive measures that Canada’s ratification of OPCAT would require could also apply to psychiatric institutions. Much like the close integration of the carceral and immigration systems in Canada, psychiatric facilities are often more closely connected to the criminal system and police, than they are to healing, community support and care work.
The role of police in mental health crises forces the arm of Canada’s carceral system to respond to situations it is not equipped to handle. Tense situations are more likely to escalate when first responders are heavily armed cops with no requisite sensitivity training. The result is the criminalization of people in their most vulnerable states—people who need support and de-escalation, not armed coercion and brutality.
This is evident during so-called wellness checks, when police act as first responders to mental health crises or are arbitrarily called in by strangers to intervene. Here, the systemic racism that is inherent to both policing and the psychiatric system in Canada often carries fatal consequences.
The stories are all too familiar: 29-year old Regis Korchinski-Paquet who fell to her death from a balcony in the presence of police officers in Toronto; the police shooting of 26-year old D’Andre Campbell who had called police for help during a crisis; the shooting of 26-year old mother and Nuu-Chah-Nulth member Chantel Moore; the shooting by Peel Police of 62-year old Muslim man Ejaz Choudry whose family called a non-emergency line for medical help.
Police involvement and the criminalization of people suffering from mental health issues are inseparable from the regime of forced hospitalization and institutionalization in Canada. Speaking with Canadian Dimension, Senator Kim Pate described the broader struggle against the privatization of Canada’s social services, a lack of community services is often at the root of the circumstances that lead to hospitalization. By the time people get to a crisis point, “often times they’re without Pharmacare, without adequate housing, without supports.”
“By the time they are in involuntary hospitalization,” she said, “they’re often in all kinds of other crises—preventable crises from my perspective.”
The conditions of Canadian psychiatric institutions were castigated by former UN Special Rapporteur for the rights of persons with disabilities, Catalina Aguilar-Devandas, who concluded a fact-finding mission in April 2019. In a scathing report that addressed living and treatment conditions for people living with both mental and physical disabilities, she urged Canada to ratify OPCAT as one means of addressing the lack of oversight and safeguards against cruel and degrading treatment.
In addition to calling out the inconsistency and lack of transparency demonstrated by Correctional Services, Aguilar-Devandas’ report points to the inadequate use by provincial and territorial governments of data on disability status to inform policies and plans, and the lack of action to address complaints about discrimination based on disability. She commented that while Ontario, Manitoba, Nova Scotia, and Québec have enacted legislation relating to disabilities and accessibility, none of these are comprehensive or “fully in line with the Convention on the Rights of Persons with Disabilities” to which Canada is a signatory.
Most jurisdictions, she observed, force compliance with psychiatric treatment plans—be they for medication, counselling or hospitalization—without providing alternatives: “The extensive use of seclusion and restraints, including chemical restraints is also a concern, especially since there is no independent monitoring of mental health facilities.”
“Once detained, a person can be forcibly treated, including through forced medication and electroconvulsive therapy, without his or her free and informed consent,” she continued, describing additional pressures on people with disabilities to accept medically assisted death, where people have reported being “offered the ‘choice’ between a nursing home and medical assistance in dying”.
That a UN Special Rapporteur described these conditions as prevalent across Canada barely over a year ago shows that little has been done to address a legacy of abusive practices in psychiatric institutions and care centres. Recall, for example, the shameful episode at Québec City’s Robert-Giffard Psychiatric Hospital in 2003, when a psychiatric patient was locked in isolation and left in his own excrement for a week by staff, apparently to teach him a lesson. This humiliating treatment was also meted out to elderly residents in Québec’s long-term care homes this spring, such as the CHSLD Herron, who were abandoned during the COVID-19 pandemic in soiled beds and diapers in conditions that nurses have called “inhumane.”
However, the UN investigator’s warnings and calls to ratify OPCAT have not made oversight of Canada’s compliance with the Convention Against Torture a priority for policy-makers. As Aguilar-Devandas notes, Canada has not endorsed the Inter-American Convention on Protecting the Human Rights of Older Persons—another international law that emphasizes the duties of states to take preventive measures to prevent the inhumane treatment of our elders.
The silence of Canadian politicians on torture prevention in Canada, and the deeper meaning of “cruel and unusual” treatment, is all the more stark when it relates to the systemic discrimination faced by Indigenous peoples in Canadian medical facilities as highlighted by a recent event in Québec.
Earlier this past fall, the province rallied against the cruel circumstances surrounding the death of an Atikamekw woman, Joyce Echaquan, at a Joliette hospital on September 28, 2020. Tied to her hospital bed by nurses, Echaquan live-streamed her last moments, recording hospital staff threatening and insulting her while she was in distress. The Québec government has since launched a public inquiry, with Echaquan’s family also calling for investigation into the hospital’s negligent administration of drugs.
Echaquan had to die for Canadian media to broach a conversation around the discrimination and degrading treatment of Indigenous women in Canadian and Québec hospitals. But Echaquan’s death precipitated a vital discussion of the cruel conditions that are routinely endured by Indigenous women in medical facilities, including forced medication and restraint, and abuse and neglect during childbirth.
The Viens Commission’s report, which was published in September 2019 following an investigation into systemic discrimination against First Nations and Inuit peoples in Québec, described unethical medical practices like “non-consensual drug tests performed on Indigenous women who have come to give birth.”
The report also described a failing complaint system in the health and social service sectors, which was described as underused by Indigenous communities due to lack of familiarity with the mechanisms, as well as a lack of trust and fear of reprisal. Yet, even here the Viens Commission report fell short, placing little emphasis on the lack of preventive and oversight mechanisms to ensure that medical facilities are actually complying with recommendations to ensure dignified and humane treatment of all people.
Across Canada, the institutions that are trusted to protect and heal people in their most vulnerable states have repeatedly abused this power. An investigation into systemic racism against Indigenous peoples in BC was published this past November, revealing a rampant practice of racial profiling in medical facilities that have subjected Indigenous patients to degrading treatment. These findings cast a deeper shadow still over the colonial legacy of forced sterilization that Indigenous women have historically endured in Canada—and continue to face, as with the 2017 case of coerced tubal ligation in a Saskatoon Health Region hospital.
An international reputation for hypocrisy
Ratifying OPCAT would mean taking seriously the systemic negligence, discrimination, and escalation of violence that are endemic in Canadian state institutions. Since its application would extend beyond the prison system, it would promote accountability and help ensure that no-one has to endure cruel treatment or fear punishment in the first place in institutions that are responsible for care and healing, and at the hands of professionals whose duty is to protect human life and dignity.
As discussed in the first part of this series, the conversations that are happening between federal, provincial and territorial levels of government in Canada are shrouded in secrecy. On November 9-10, Global Affairs Canada (GAC), the Department of Justice, and Heritage Canada met to discuss several international human rights treaties, among them OPCAT. When questioned by Canadian Dimension about the current stage of discussion on OPCAT and the state of consultations with Indigenous governments and agencies, and civil society groups, only GAC responded. The reply was little more than a form letter sent by spokesperson Grantly Franklin in an email: “Further consultations and analysis are required to find an effective and efficient approach to building a system of independent monitoring in Canada’s federal system.”
Given the widespread use of torture all over the world, it behooves Canada to ratify OPCAT. The lack of oversight and preventive measures in Canadian state facilities ultimately undermines the credibility of Canada’s stance on protecting human rights and makes any condemnation of torture internationally ring hollow. As Alex Neve points out, “it’s perfectly legitimate for other governments to point a finger at Canada on this and say that our position on torture is marked by hypocrisy, and that we won’t be credible on the world stage in the struggle against torture until we are on board with OPCAT.”
Lital Khaikin is an author and journalist based in Tiohtiá:ke (Montréal). She has published articles in Toward Freedom, Warscapes, Briarpatch, and the Media Co-op, and has appeared in literary publications like 3:AM Magazine, Berfrois, Tripwire, and Black Sun Lit’s “Vestiges” journal. She also runs The Green Violin, a slow-burning samizdat-style literary press for the free distribution of literary paraphernalia.