Submission to the Committee against Torture

Executive summary

The Commission is committed to working with the Government of Canada, as well as domestic and international partners and stakeholders, to ensure continued progress in the protection of human rights, including those rights enshrined in the Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (CAT). It is in the spirit of constructive engagement that the CHRC submits this report to the Committee against Torture (the Committee) on the occasion of its consideration of Canada’s 8th periodic report.

Ratification of the Optional Protocol to the Convention against Torture

The CHRC noted that Canada announced its intention to ratify the Optional Protocol to the Convention against Torture (OPCAT) in May 2016, but at present the status of the commitment is unclear.

Recommended Question #1:

What is the status of Canada’s commitment to ratify the OPCAT?

Issues in the Federal Justice System

The CHRC noted the realities of systemic and institutionalized racism and discrimination in Canada’s federal justice system, including against people with mental health disabilities. The CHRC noted continuing concerns that racial profiling by police, security agencies, and other authority figures has harmful impacts on Indigenous, Black and other racialized communities, as well as an increasing number of reports of injurious and deadly interactions between police and Indigenous, Black and other racialized individuals with mental health disabilities.

Recommended Question #2:

Please provide details of efforts being undertaken to address and eliminate systemic and institutionalized racism and discrimination in policing across Canada. What steps are being taken to reform policing practices that disproportionately and negatively affect groups in vulnerable circumstances such as Indigenous, Black and other racialized communities, as well as individuals with mental health disabilities? What efforts are being made to ensure coordination between the various jurisdictions in Canada in relation to these issues?

The CHRC recognized that a lack of diversity and representation of Indigenous, Black and other racialized people in the legal process can contribute to racial bias and unfair treatment. The CHRC acknowledged that provisions in the legal framework for incarceration that are intended to address the systemic disadvantage of Indigenous people are not operating as intended, and that no such provisions exist for racialized individuals. The CHRC also raised concerns about sentencing policies which disproportionately affect Indigenous, Black and marginalized people.

Recommended Question #3:

Please provide details of efforts being undertaken to address and eliminate systemic and institutionalized racism and discrimination in Canada’s criminal justice system.

Recommended Question #4:

What steps are being taken to ensure the wide application of the Gladue principles? What steps are being taken to implement other reforms to judicial proceedings and sentencing practices that disproportionately and negatively affect groups in vulnerable circumstances such as Indigenous, Black and other racialized communities, as well as individuals with mental health disabilities? What steps are being taken to develop and implement alternatives to incarceration for such groups?

The CHRC highlighted concerns with respect to prison conditions and the disproportionate impacts experienced by certain groups within the prison population.

The CHRC expressed concerns that Indigenous, Black, and racialized prisoners are overrepresented in the prison population and face discrimination in relation to their conditions of confinement, including with respect to classification and treatment. For instance, Indigenous and Black prisoners in particular are more likely to be over-classified as maximum security and be involved in incidents of use of force. The CHRC also noted concerns over limited culturally relevant services, without which prisoners are at a higher risk of reoffending.

The CHRC also noted that the proportion of prisoners with disabilities continues to increase in federal prisons. The CHRC noted that correctional facilities often lack the appropriate capacity and resources to manage serious mental health conditions, particularly in institutions designated for women, which places them at risk of engaging in chronic, repetitive self-injurious or suicidal behaviour. The CHRC also highlighted issues related to the lack of provision of adequate health care for prisoners with substance use disorders.

The CHRC raised concerns about the recent growth in the population of aging and older prisoners, who are vulnerable to victimization, and often reside in facilities that are inaccessible and ill-equipped to manage their healthcare needs. The CHRC noted some of the challenges associated with older prisoners, including the management of chronic health conditions, accessibility and accommodation of disability, reintegration barriers, end-of-life care and dying with dignity in prison.

Recommended Question #5:

Please provide details of efforts being undertaken to address and eliminate systemic and institutionalized racism and discrimination in prisons across Canada.

Recommended Question #6:

What steps is Canada taking to develop a concrete and specific strategy to ensure that its policies and practices meet the unique needs of prisoners in vulnerable circumstances in relation to their conditions of confinement, including Indigenous, Black and older prisoners, as well as prisoners with mental health disabilities?

The CHRC raised concerns about the experiences of trans, non-binary and gender diverse prisoners in federal correctional facilities, which continue to be constructed in a binary manner, and therefore prisoners continue to be placed in institutions designated for either men or women. Trans, non-binary and gender diverse prisoners are often subjected to sexual assault, coercion and violence, bullying, and harassment from other prisoners and correctional staff. The CHRC maintained that Correctional Service of Canada (CSC) practices must be focused on the needs of this population.

Recommended Question #7:

What steps are being taken to ensure that correctional policies and practices fully respect the rights and meet the needs of trans, non-binary and gender-diverse prisoners, including with respect to transfer requests?

The CHRC raised the issue of sexual coercion and violence in Canada’s prisons, both of which disproportionately affect those who are already the most vulnerable to maltreatment and negative correctional outcomes. The CHRC noted a lack of effective reporting and accountability measures on this issue. The CHRC maintained that the environment in which individuals are serving their sentences must not perpetuate additional violence and abuse, and that protecting and supporting the victims of these crimes must be a priority.

Recommended Question #8:

Please provide details of efforts being undertaken to address and eliminate sexual coercion and violence in prisons across Canada. What steps are being taken to develop effective reporting and accountability measures, as well as a concrete and specific preventative strategy for incidents of sexual coercion and violence, particularly for prisoners who are most vulnerable?

The CHRC raised concerns regarding the existing “Structured Intervention Unit” (SIU) regime, which disproportionately impacts Black and Indigenous prisoners, as well as prisoners with mental health disabilities. The CHRC expressed the need for systematic monitoring and independent oversight of the SIU regime, as well as the need for CSC to implement effective data collection and public reporting practices.

Recommended Question #9:

Please provide details of the steps being taken to ensure that the current SIU regime does not continue to create conditions of de facto solitary confinement for prisoners. What steps are being taken to ensure effective and timely data collection practices to facilitate the analysis and monitoring of the experiences of prisoners placed in SIUs, including Indigenous and racialized prisoners, women, trans and gender non-binary prisoners, and those with physical, mental health and intellectual disabilities?

Recommended Question #10:

What steps are being taken to establish an effective independent oversight body to monitor the operation of the SIU regime?

Immigration Detention

The CHRC expressed concerns regarding Canada’s immigration detention regime, including the treatment of individuals who are detained, as well as the associated conditions of confinement. The CHRC echoed the recommendations made to Canada to dramatically revise its migration detention regime to better align with its international human rights obligations.

Recommended Question #11:

Please provide details of the steps being taken to revise Canada’s immigration detention regime, including by: ensuring that detention is used only as a last resort and that alternatives to detention are explored in all cases; ending the practice of indefinite immigration detention; and ensuring that detainees are not held in maximum security correctional facilities or subject to de facto solitary confinement.

Recommended Question #12:

Please provide details of the steps being taken to establish a regime to ensure independent oversight and monitoring of immigration detention.

The CHRC noted that a significant gap exists in the human rights protections afforded to migrants detained in Canada, wherein many migrant detainees are unable to appropriately assert and claim their rights. The CHRC asserted that human rights protections should be available to all individuals present in Canada, lawfully or not.

Recommended Question #13:

Please detail the steps being taken to ensure that migrant detainees are able to access human rights protections on an equal basis with all others present in Canada, including access to the CHRA.

Violence Against Indigenous Peoples

Indigenous women and girls continue to experience systemic racism and discrimination and bear a disproportionate burden of violence. The CHRC welcomed the release of the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls in 2019, but was concerned by the lack of progress in implementing the 231 Calls for Justice. The CHRC noted that Canada’s existing National Action Plan does not include concrete steps for implementation of its priorities, nor is there a way to monitor this implementation, and echoed concerns that the consultation and engagement process for the Plan did not include a sufficient diversity of voices, and is therefore not fully reflective of the priorities and realities of Indigenous women, girls, and 2SLGBTQQIA+ people.

Recommended Question #14:

When does Canada expect to launch an implementation plan to address the issues identified in the Final Report of the National Inquiry into MMIWG, as well as the highlighted priorities in the National Action Plan? What steps are being taken to ensure the timely completion and coordinated implementation of all components of the National Action Plan? What steps are being taken to ensure inclusive engagement in the process?

The CHRC raised concerns regarding policies and practices of forced or coerced sterilization, which have disproportionally affected Indigenous women across Canada. The CHRC echoed calls to take action on this issue by investigating all allegations of forced or coerced sterilization, establishing policies and accountability mechanisms regarding the necessity of free, full and informed consent, and providing access to justice for survivors and their families.

Recommended Question #15:

Please provide details of the steps being taken to respond to ongoing allegations about the forced or coerced sterilization of Indigenous women across Canada, including calls for an impartial investigation, further study, and redress and justice options for survivors? What efforts are being made to ensure coordination between the various jurisdictions in Canada in relation to this issue?

The CHRC called for the investigation of all former residential school sites, and emphasized that these efforts must be led by Indigenous peoples, informed by their wishes, and respectful of their rights.

Recommended Question #16:

What steps are being taken to implement the TRC’s Calls to Action related to missing children and burial information?

Institutionalization and Involuntary Treatment of People with Disabilities

The CHRC raised the issue of institutionalization of people with disabilities, their treatment in these institutions, and the lack of access to adequate and appropriate supports and services that people with disabilities require to realize their right to live independently and with dignity in their communities. The CHRC noted recommendations made by the Special Rapporteur on the Rights of Persons with Disabilities regarding institutionalization, deprivation of liberty and involuntary treatment, to better protect the rights and dignity of people with disabilities.

Recommended Question #17:

Please provide details of the steps being taken to stop the institutionalization and involuntary treatment of people with disabilities across Canada.

Recommended Question #18:

What steps are being taken to collect comprehensive data and improve independent oversight on the situations of people with disabilities living in institutions?

Recommended Question #19:

What steps are being taken to address gaps in access to supports and services that people with disabilities require to live independently and with dignity in their communities? What efforts are being made to ensure coordination between the various jurisdictions in Canada in relation to this issue?

Intersex, Trans and Gender Diverse Youth

The CHRC raised concerns regarding the existing psychopathologizing and over-medicalized model of care that contributes to stigmas and barriers to access for intersex, trans and gender diverse youth. The CHRC highlighted the issues of unnecessary surgeries and conversion therapies, and urged Canada to implement legal and policy changes to end these harmful practices.

Recommended Question #20:

What steps are being taken to ensure that there is a full ban on conversion therapies in Canada, as well as unnecessary surgical interventions on intersex children? What efforts are being made to ensure coordination between the various jurisdictions in Canada in relation to these issues?

Technology and Privacy

The CHRC noted that human rights protections must continue to evolve and take into account advancements in technology. The CHRC noted calls for a possible moratorium or prohibition on the use of facial recognition in high-stake contexts where they can be used to make decisions that affect an individual’s human rights. The CHRC supported further legislative and regulatory action to ensure human rights are fully protected as technology advances.

Recommended Question #21:

What steps are being taken to ensure that racism and discrimination in the justice system are not being perpetuated through the use of technology, such as AI and assisted decision-making?

Canada’s Implementation of its International Human Rights Obligations

The CHRC noted that the current system for implementation of Canada’s international human rights obligations, including those under the CAT, is both structurally inadequate and practically ineffective. The CHRC urged Canada to continue to make substantial, meaningful and coordinated progress on a robust implementation and monitoring framework.

Recommended Question #22:

What efforts are being made to ensure that the enhanced systems being created by Canada towards a robust implementation and monitoring framework of its international human rights obligations, including those under the CAT, are inclusive and transparent?