WORKING GROUP ON ARBITRARY DETENTION
ENDS VISIT TO CANADA
16 June 2005
The Working Group on Arbitrary Detention of the United Nations Commission on Human Rights issued the following statement at a press conference held on 15 June in Ottawa at the end of a visit to Canada. The visit was led by Working Group chairperson Leila Zerrougui and included the participation of members Soledad Villagra de Biedermann and Mohammad Hashemi.
As many persons we have met during the last two weeks, you may ask yourselves why the Working Group on Arbitrary Detention has come to Canada. The answer is simply that the Government has invited the Working Group for an official mission.
Does the fact that the Working Group accepted this invitation imply a judgment that arbitrary detention might be prevalent in Canada? No. The information gathered by the Working Group over the fourteen years of its existence suggests that cases of arbitrary detention occur in every country on the Earth. This is why the Working Group has carried out official visits upon the invitation of the government to countries as diverse as Argentina, Australia, Bahrain, Iran, Mexico, Peru, and the United Kingdom, and last year China, Latvia and Belarus. There are of course differences from country to country in the intensity of the phenomenon and in the forms it takes.
The Working Group delegation visiting Canada was headed by Ms. Leila Zerrougui, Chairperson-Rapporteur of the Working Group, and was composed of two of its members, Ms. Soledad Villagra de Biedermann and Mr. Seyed Mohammad Hashemi, as well as two members of the United Nations Secretariat and two UN interpreters.
In the course of its fifteen days in Canada the delegation of the Working Group visited, in addition to the Federal capital Ottawa, Iqaluit, Toronto, Edmonton, Vancouver and Montreal. The delegation was able to hold meetings with representatives of the Federal Departments of Foreign Affairs, Justice, Public Safety and Emergency Preparedness, and Citizenship and Immigration, with representatives of Corrections Canada, the Canadian Border Service Agency, the Royal Canadian Mounted Police. The delegation also met with representatives of the competent provincial authorities in the Provinces and the Territory it visited. Moreover, the Working Group had the privilege of being invited to frank and highly informative discussions with members of Canada’s judiciary, from the Supreme Court of Canada to the Federal Court, to the Provincial courts of appeal and trial courts. The Working Group delegation further held meetings with numerous representatives of Canadian civil society, including in particular members of the criminal and immigration bar, representatives of non-governmental organizations active in the fields of the correctional system, of refugees, women’s rights, aboriginal people and other vulnerable groups in the criminal justice system, and with representatives of academia.
An essential part of the Working Group’s program were, as always during country visits, the visits to institutions where persons are deprived of their freedom: the Working Group visited the Baffins Correctional Centre and the Isumaqsunngittukkuvik (Young Offenders Centre) in Iqaluit, the Toronto West Detention Centre, the Rexdale Immigration Holding Centre, the Maplehurst Correctional Complex, the Vanier Centre for Women, the Pê Sâskâtêw Centre in Hobbema, Alberta, the Edmonton Institution for Women, the Immigration holding facility at Vancouver International Airport, Vancouver Jail, the North Fraser Pre-Trial Centre, the Rivière-des-Prairies detention centre, and holding cells of the Service de police de la Ville de Montreal. In these facilities the Working Group held private interviews with approximately 150 detainees. Moreover, the Working Group met with the released national security detainees Mr. Charkaoui and Mr. Suresh, as well as with the families of the current security certificate detainees. Finally, the delegation attended bail hearings before the Aborginal Peoples’ Court, the Drug Treatment Court and the Mental Health Court in Toronto’s Old City Hall, as well as a detention review hearing before the Immigration Division in Vancouver.
During the entire visit and in all respects, the Working Group has enjoyed the fullest cooperation of the Federal Government and of all the Provincial authorities it dealt with. The delegation was able to visit all the detention centers or other facilities that it requested. In all these facilities, the delegation has been able to meet and interview with whoever it wanted, police holds, pre-sentence detainees, convicted persons serving their sentence, immigration holds, women, minors, persons held in segregation quarters and infirmaries, detainees identified beforehand to the Government by their name and detainees chosen at random by the delegation while touring the facilities. In this context, it is particularly relevant to stress that the Government allowed the delegation to hold long private interviews with the three security certificate detainees held at the Toronto West Detention Centre, as requested by the Working Group. The representatives of the authorities met by the Working Group were willing to discuss all matters raised by the Working Group openly and strived to provide the delegation with all the information it requested. We reiterate our gratitude for their transparency and cooperation. We also wish to thank the civil society representatives we met for their generous assistance to the Working Group’s visit and fact finding.
This visit has allowed the Working Group to inform itself about the situation in Canada with regard to two important aspects of its mandate: detention in the context of criminal justice and detention of asylum seekers and immigrants. The Working Group has already paid particular attention to this aspect of its mandate when visiting Australia, Romania and the United Kingdom.
The Working Group’s mandate is confined to considering the legal process that leads to persons being deprived of their liberty and being maintained in detention, and to the legal guarantees they enjoy. These have to be compared to the international norms Canada has subscribed to, in particular the Covenant on Civil and Political Rights. The Working Group has no competence to express itself concerning the conditions of detention, with one important exception: where the conditions of detention are such that they impair a detainee’s ability to effectively defend himself, thus significantly affecting her or his right to a fair trial, they become of concern to the Working Group’s mandate.
But what does the term “arbitrary detention” exactly mean? Because not every form of deprivation of liberty is arbitrary, the Working Group has developed three categories of situations in which deprivation of liberty amounts to arbitrary detention.
-The first category refers to persons detained without any basis in law, for example persons that continue to be detained after having served the totality of the sentence imposed on them.
-The second category relates to persons detained because they have exercised peacefully a right or freedom guaranteed in the Universal Declaration of Human Rights or in the Covenant, such as for instance the freedom of expression or religion, the right to peacefully demonstrate, or to organize freely in trade unions and associations.
-The third category applies when the total or partial non-observance of international norms relating to the right to a fair trial is of such gravity as to give the deprivation of liberty an arbitrary character.
In the coming two months the members of the delegation will prepare a draft report on the visit, which they will submit to the whole Working Group at its next session, taking place in Geneva at the end of August. Subsequently, the Working Group will present its Report to the Commission on Human Rights at its 62nd session, which will take place in Geneva next spring.
The following observations therefore constitute only the first impressions of the members of the Working Group delegation and do not prejudge what the Working Group will find in its Report.
1. In setting forth our first impressions arising from the visit to Canada, we must start by stressing an aspect that you might consider obvious and not particularly worth mentioning. We refer to the fact that Canada is a country governed by the rule of law, in which a strong and independent judiciary strives to ensure that trials are fair and exercises a generally very vigorous control over the lawfulness of all forms of deprivation of liberty.
2. In addition to the judicial control over deprivation of liberty – and on a different level –, we find the role played by public enquiries into cases of malfunctioning of the criminal justice system particularly significant. Such enquiries have allowed the country as a whole to look into incidents of unjust detention, from miscarriages of justice to systemic discrimination against minorities in the criminal justice system, to the particular vulnerability of Canada’s Aboriginal people when they come into contact with law enforcement. These enquiries have clarified the systemic factors and root causes of several issues within the Working Group’s mandate and yielded recommendations that contribute to remedying the problems. Public enquiries also exemplify the pivotal role Canadian civil society plays in denouncing circumstances in which detention might be considered arbitrary. The free and open dialogue between legislative and executive authorities on the one hand and civil society on the other, greatly contributes to limiting the occurrence of instances of arbitrary detention in Canada.
3. In 1996 Canada enacted a Sentencing Reform. We have listened to a number of practitioners speaking about their positive experiences with measures alternative to incarceration, in particular about restorative justice approaches. The delegation has learned that, as a result of the availability of conditional release and other measures alternative to imprisonment, the number of persons serving sentences in detention has considerably decreased over the last ten years. The Sentencing Reform also specifically requires judges to pay particular attention to the circumstances of Aboriginal offenders. This very important positive development was reinforced by the Supreme Court of Canada in its Gladue judgment.
4. The Working Group has learned about several interesting projects developed in large urban centers to increase the chances of socially marginalized offenders to obtain bail, such as the specialized Mental Health Court, Drug Treatment Court and Aboriginal Peoples’ Court, and the Toronto Bail Program. In Nunavut, the law establishes a presumption that persons charged with an offense are in need of legal aid.
5. The detention of refugee claimants and foreigners upon arrival in Canada or in view of removal from Canada remains the exception. Moreover, in most cases, immigration custody lasts less than 48 hours or only a few days. We wish to underline that this is – and hopefully will remain – the positive background against which the concerns we will express must be viewed.
Issues of concern
Detention within the criminal justice system
1. While the number of convicted detainees has been consistently falling since the Sentencing Reform, the number of remand prisoners has been growing at the same time. As a result, there are now at any time more persons deprived of their liberty in Canada awaiting trial or sentencing than there are persons actually serving a sentence in detention. This is of great concern, first of all because under both Canadian and international law everyone has the right to be considered innocent until proven guilty at trial. Secondly, detention on remand disparately impacts on vulnerable social groups, such as the poor, persons living with mental health problems, Aboriginal people and racial minorities. Thirdly, in some Provinces persons detained on remand do not have access to the programs that benefit those serving a sentence. Fourthly, as Canadian courts have recognized in giving double and even triple credit for pre-sentence custody, conditions of remand detention are generally harsher than those of persons serving a sentence.
2. While the right to legal counsel is enshrined in Canadian law and is implemented through duty counsel and legal aid programs, we are concerned about the difficulties some defendants face in effectively exercising this right. Canada’s geography, with vast sparsely populated areas, contributes to posing considerable challenges to the effectiveness of the right to legal counsel. In Southern Ontario and Quebec, the fact that detention facilities holding remand prisoners are often located at a considerable distance from the large urban centres makes it very difficult for defence lawyers to conduct face-to-face consultations with their clients. Moreover, telephone access to defence counsel also varies from detention centre to detention centre. The Working Group considers, however, that the requirement of effective legal representation for those charged with a criminal offence is a must, not an option to be granted within the boundaries of the resources a government makes available. Where this right is not fully respected, the price is paid by the poor and socially marginalized, who are already overrepresented among the prison population.
3. The Working Group is also concerned by the high number of persons living with mental health problems kept in prisons and penitentiaries instead of in a medical setting, where they could receive adequate treatment. According to the information received, this is due both to past political choices and to a current lack of resources. Moreover, it appears that sometimes judicial orders that criminal defendants awaiting trial be remanded to a psychiatric hospital are not implemented, and that, as a result, they are kept in prison.
Detention under immigration and refugee law
We will now turn to the second part of our impressions on the situation of deprivation of liberty in Canada, detention under the Immigration and Refugee Protection Act (IRPA). In this context, we wish to stress that it is not within the Working Group’s mandate to state its views concerning Canada’s general policies in the area of immigration and asylum. What the Working Group has been looking at is whether foreign citizens detained under Canada’s IRPA enjoy rights of due process when they attempt to obtain release from detention.
4. One of the grounds on which an immigration officer can detain a foreign national is that she is not satisfied of the foreigner’s identity. When the immigration officer relies on this ground, as they often do, the law does not allow the Immigration Division to review whether the immigration officer was reasonable in concluding that the identity of the detainee was not established. We are of course aware that some foreign nationals intentionally destroy or conceal their identification papers. Immigration officers, however, often have unrealistic demands regarding the quantity and quality of identification documents refugees can realistically be expected to carry with them.
5. The second ground for detaining foreign nationals commonly relied on is that the person is unlikely to appear for the next hearing or for removal. The Immigration Division tends to maintain asylum seekers in detention on the ground that in claiming asylum they stated that they fear persecution if deported back to their home country. As a consequence, they have strong motives to fear removal and are, allegedly, not likely to appear. We are concerned that this line of reasoning leads, in practice, to persons being detained on the basis of having claimed refugee status.
6. Moreover, we are concerned by several practical aspects of the detention of foreign nationals under IRPA, which considerably impair their capability to effectively seek release from detention. We noted that many of the detainees do not really understand the legal process they are being subjected to and why exactly they are being detained. In some Provinces (notably, British Columbia), otherwise unrepresented immigration detainees are provided with duty counsel for their first detention review hearings. But this is not a requirement under the law and is not the case in the two Provinces with by far the most cases, Ontario and Quebec. While interpretation is provided at the detention review hearings, the detainees often do not have access to an interpreter ahead of the hearing and are thus unable to prepare themselves. In addition to these difficulties specific to immigration detainees, they are affected by the practical difficulties undermining the effective access to legal counsel faced by the general prison population.
7. While in Ontario and Quebec the Federal Government runs detention facilities exclusively for immigration holds, a considerable part of the immigration detainees are held in Provincial facilities. In some Provinces this implies automatically detention in maximum security. While some immigration detainees have a criminal record, it is of great concern to us that immigration holds, who are not held on criminal charges or serving a sentence, are held in custody among persons in the criminal process – sometimes over extended periods of time. The fact that these immigration detainees are held by Provincial corrections authorities, but on account of the Federal immigration authorities, adds to the hardship the detainees experience, because there appears to be a lack of coordination. The prison authorities often claim that they receive insufficient instructions from the Federal level regarding the specific circumstances and needs of persons in immigration custody. The lack of attention to their specific circumstances and needs, in turn, directly affects the immigration detainees capability to effectively challenge detention. We are therefore greatly encouraged by the negotiations for a memorandum of understanding that the Federal Government is reportedly conducting with the Provinces in this respect, and hope that these negotiation will soon yield the first results.
8. Finally, regarding detention under the security certificate process, we wish to stress that we are fully aware of the duty of the Canadian government to protect its citizens from terrorist acts and to comply with its international obligations in fighting terrorism. We are also aware of the fact that there are only four men currently detained under this procedure. Nonetheless, the Working Group is gravely concerned about the following elements, which undermine the security certificate detainees’ rights to a fair hearing, to challenge the evidence used against them, not to incriminate themselves, and to judicial review of detention:
- the security certificate procedure applies only to suspects who are not Canadian citizen; in fact, all four men currently detained under security certificates are Arab Muslims;
- if the person certified is not a permanent resident, detention is mandatory;
- the duration of this detention without charges is indeterminate; one of the security certificate detainees has been detained for five years by now;
- the only way out of detention appears to be deportation to the country of origin; all four men currently detained argue – not without plausibility – that they would be exposed to a substantial risk of torture in case of deportation;
- the evidence on which the security certificate is based is kept secret from the detainee and his lawyer, who are only provided with a summary of the information concerning them. They are thus not in a position to effectively question the allegations brought against him;
- the Federal Court judge tasked with confirming the certificate has no jurisdiction to review, on the merits, whether the certificate is justified. His jurisdiction is limited to assessing the “reasonableness” of the government’s allegations.
As we have pointed out to many of our interlocutors, Canada is a model and point of reference for the peoples of many countries with regard to the rule of law and respect for human rights. It is also with this important role Canada plays in mind that we highlight the numerous good practices of Canada with regard to detention and that we are expressing the above concerns.
These are our first impressions at the conclusion of our visit.