- Note 1
S.C. 2001, c. 27. The unabridged title of the Act is:
An Act respecting immigration to Canada and the granting of refugee protection to persons who are displaced or in danger.
S.C. 2001, c. 27. All references in this paper are to sections of the
IRPA unless otherwise indicated.
Return to note 1 referrer
- Note 2
An Act respecting immigration to Canada,
R.S.C. 1985, c. I-2.
Return to note 2 referrer
- Note 3
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Can. T.S. 1987
No. 36;
G.A. res. 39/46 [annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984)].
Return to note 3 referrer
- Note 4
Part I of the
Constitution Act, 1982, being Schedule B to the
Canada Act 1982 (U.K.), 1982, c. 11. Note that torture has been considered to be cruel and unusual treatment or punishment :
Suresh v. Canada (Minister of Citizenship and Immigration), 2002
S.C.C. 1, January 11, 2002, and
Ahani v. Canada (Minister of Citizenship and Immigration), 2002
S.C.C. 2, January 11, 2002.
Return to note 4 referrer
- Note 5
R.S.C. 1960, c. 44.
Return to note 5 referrer
- Note 6
R.S.C. 1985, c. C-46.
Return to note 6 referrer
- Note 7
This paper highlights the key provisions. When referring to these instruments, the text of the entire instrument should be consulted as required.
Return to note 7 referrer
- Note 8
G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948).
Return to note 8 referrer
- Note 9
O.A.S. Res. XXX, adopted by the Ninth International Conference of American States (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 17 (1992).
Return to note 9 referrer
- Note 10
(ETS
No. 5), 213
U.N.T.S. 222, entered into force Sept. 3, 1953, as amended by Protocols Nos 3, 5, and 8 which entered into force on 21 September 1970, 20 December 1971 and 1 January 1990 respectively.
Return to note 10 referrer
- Note 11
O.A.S. Treaty Series
No. 36, 1144
U.N.T.S. 123 entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992).
Return to note 11 referrer
- Note 12
G.A. res. 3452 (XXX), annex, 30 U.N. GAOR Supp. (no. 34) at 91, U.N. Doc. A/10034 (1975).
Return to note 12 referrer
- Note 13
G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (no. 16) at 52, U.N. Doc. A/6316 (1966), 999
U.N.T.S. 171, entered into force Mar. 23, 1976.
Return to note 13 referrer
- Note 14
(1981) 9 The Muslim World League Journal 25.
Return to note 14 referrer
- Note 15
OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986.
Return to note 15 referrer
- Note 16
O.A.S. Treaty Series
no. 67, entered into force Feb. 28, 1987, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 83 (1992).
Return to note 16 referrer
- Note 17
G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (no. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987.
Return to note 17 referrer
- Note 18
G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (no. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force Sept. 2, 1990.
Return to note 18 referrer
- Note 19
G.A. res. 47/133, 47 U.N. GAOR Supp. (no. 49) at 207, U.N. Doc. A/47/49 (1992).
Return to note 19 referrer
- Note 20
The Statute was adopted on 17 July 1998 by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court.
Return to note 20 referrer
- Note 21
Bassan, Daniela, "The Canadian Charter and Public International Law: Redefining the State's Power to Deport Aliens", (1996) 34 Osgoode Hall L. J. 583-625.
Return to note 21 referrer
- Note 22
An example of this is the definition of Convention refugee.
Return to note 22 referrer
- Note 23
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817.
Return to note 23 referrer
- Note 24
S. 115(2) provides exceptions to the principle of
non-refoulement:
Subsection (1) does not apply in the case of a person
- who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Minister, a danger to the public in Canada; or
- who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada.
Return to note 24 referrer
- Note 25
A similar question was raised in the Convention refugee definition context in
Thabet v. Canada (Minister of Citizenship and Immigration), [1998] 4
F.C. 21 (F.C.A.).
Return to note 25 referrer
- Note 26
For instance, see
Kisoki v. Sweden, CAT Communication
no. 41/1996;
K.N. v. Switzerland, CAT Communication
no. 94/1997;
S.M.R. et al v. Sweden, CAT Communication
no. 103/1998;
A.M. v. Switzerland, CAT Communication
no. 144/1999. See also
Salibian v.
M.C.I., [1990] 3
F.C. 250 (C.A.) for a discussion of similar questions in the context of the Convention refugee definition.
Return to note 26 referrer
- Note 27
X v. Switzerland, CAT Communication
no. 38/1995. The social group was not specified nor were the criteria that were used to determine whether or not a person is a part of a social group. Another communication (Arana v. France, CAT Communication
no. 63/1997) refers to "persons detained for terrorist activities" and "other persons in the same circumstances as the author".
Return to note 27 referrer
- Note 28
Suresh, supra, note 4.
Return to note 28 referrer
- Note 29
Ahani, supra, note 4.
Return to note 29 referrer
- Note 30
CAT General Comment
no. 1, (General Comments); Implementation of Article 3 of the Convention in the context of Article 22: 21/11/97, at paragraph 7. The text of the Committee Against Torture General Comment
no. 1 is found at chapter 10.
Return to note 30 referrer
- Note 31
Ibid., at par. 8.
Return to note 31 referrer
- Note 32
Supra, note 30, at par. 7.
Return to note 32 referrer
- Note 33
Mutombo v. Switzerland, CAT Communication
no. 13/1993.
Return to note 33 referrer
- Note 34
E.A. v. Switzerland, CAT Communication
no. 28/1995.
Return to note 34 referrer
- Note 35
Ireland v. U.K., Series A,
no. 25, 18 January 1978;
Selmouni v. France, Application
no. 25803/94, 28 July 1999;
Salman v. Turkey, Application
no. 21986/93, 27 June 2000.
Return to note 35 referrer
- Note 36
Veznedaroglu v. Turkey, Application
no. 32357/96, 11 April 2000, see the dissenting comments of Mr. Bonello.
Return to note 36 referrer
- Note 37
R. v. R.J.S., [1995] 1
S.C.R. 451;
Ahani v.
M.C.I., [2000] F.C.J
no. 53 (A-414-99).
Return to note 37 referrer
- Note 38
Sinnappu v.
M.C.I., [1997] 2
F.C. 791. See also
Hsit, Sylverine Aladdin v.
M.C.I. (F.C.T.D., No. IMM-296-97), Richard, December 9, 1997.
Return to note 38 referrer
- Note 39
Suresh, supra, note 28. In
Chahal v. United Kingdom, ECHR, File: 70/1995/576/662, November 15, 1996, the test is stated as follows at paragraph 97 of the decision: "In determining whether it has been substantiated that there is a real risk that the applicant, if expelled to India, would be subjected to treatment contrary to Article 3"
Return to note 39 referrer
- Note 40
Ahani, supra, note 37, par. 4.
Return to note 40 referrer
- Note 41
Suresh, note 28.
Return to note 41 referrer
- Note 42
Ahani, note 37.
Return to note 42 referrer
- Note 43
Adjei v. Canada (Minister or Employment and Immigration), [1989] 2
F.C. 680 (F.C.A.).
Return to note 43 referrer
- Note 44
Suresh, supra, note 28.
Return to note 44 referrer
- Note 45
Supra, note 43..
Return to note 45 referrer
- Note 46
Secretary of State for the Home Department v. Kacaj, Immigration Appeal Tribunal, Appeal No. CC-23044-2000, July 19, 2001.
Return to note 46 referrer
- Note 47
R. v. Governor of Pentonville Prison Ex Parte Fernandez, [1971] 1 W.L.R. 987.
Return to note 47 referrer
- Note 48
R. v. Secretary of State for the Home Department, Ex Parte Sivakumaran, [1988] 1 All E.R. 193 (H.L.) 196.
Return to note 48 referrer
- Note 49
ECHR,
Soering case, judgment of 7 July 1989, Series A
no. 161.
Return to note 49 referrer
- Note 50
Supra, note 46, at paragraphs 10 to 15.
Return to note 50 referrer
- Note 51
Supra, note 46.
Return to note 51 referrer
- Note 52
Supra, note 4.
Return to note 52 referrer
- Note 53
For instance at par. 129: "We conclude that generally to deport a refugee, where there are grounds to believe that this would subject the refugee to a
substantial risk of torture, would unconstitutionally violate the Charter's s. 7 guarantee of life, liberty and security of the person. This said, we leave open the possibility that in an exceptional case such deportation might be justified either in the balancing approach under ss. 7 or 1 of the Charter.
Return to note 53 referrer
- Note 54
Par 78: "Insofar as Canada is unable to deport a person where there are substantial grounds to believe he or she would be tortured on return, this is not because Article 3 of the CAT directly constrains the actions of the Canadian government, but because the fundamental justice balance under s. 7 of the Charter generally precludes deportation to torture when applied on a case-by-case basis. We may predict that it will rarely be struck in favour of expulsion where there is a
serious risk of torture
Return to note 54 referrer
- Note 55
See the State Parties' obligation to this effect found at Article 2(1) of the
CAT.
Return to note 55 referrer
- Note 56
Canada (Attorney General) v. Ward, [1993] 2
S.C.R. 689.
Return to note 56 referrer
- Note 57
In
Ward, note 56, p. 720, the Court stated: "Whether the claimant is 'unwilling' or 'unable' to avail him- or herself of the protection of a country of nationality, state complicity in the persecution is irrelevant." See also,
Rajudeen v.
M.C.I. (1984), 55
N.R. 129 (F.C.A.).
Return to note 57 referrer
- Note 58
El Khatib, Naif v.
M.C.I. (F.C.T.D.,
no. IMM-5182-93), McKeown, September 27, 1994.
Return to note 58 referrer
- Note 59
Nizar v.
M.C.I. (F.C.T.D.,
no. A-1-92), Reed, January 10, 1996.
Return to note 59 referrer
- Note 60
Haydin v. Sweden, CAT Communication
no. 101/1997, See also
Alan v. Switzerland, CAT Communication
no. 21/1995.
Return to note 60 referrer
- Note 61
Rasaratnum v. Canada (Minister of Employment and Immigration), [1992] 1
F.C. 706 (F.C.A.).
Return to note 61 referrer
- Note 62
Supra, note 60.
Return to note 62 referrer
- Note 63
Supra, note 61.
Return to note 63 referrer
- Note 64
Thirunavukkarasu v. Canada (Minister of Citizenship and Immigration), [1994] 1
F.C. 589 (F.C.A.).
Return to note 64 referrer
- Note 65
Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2
F.C. 164 (F.C.A.).
Return to note 65 referrer
- Note 66
Bent Srensen.
Prevention of Torture in "Maltreatment and Torture" (M. Oehmichen, ed., Verlag Schmidt-Rmhild, publ., Lbeck 1998) in the series
Research in Legal Medicine, Volume 19.
Return to note 66 referrer
- Note 67
Supra, note 4.
Return to note 67 referrer
- Note 68
See discussion at par 60 to 65 in
Suresh,
supra, note 4.
Return to note 68 referrer
- Note 69
Supra, note 4, par
Return to note 69 referrer
- Note 70
United States of America v. Burns, [2001] 1
S.C.R. 283.
Return to note 70 referrer
- Note 71
Smith, v. R., [1987] 1
S.C.R. 1045.
Return to note 71 referrer
- Note 72
The
CAT mentions the
UN Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in its preamble and Article 16(1) of the
CAT states:
16(1) Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
Return to note 72 referrer
- Note 73
Supra, note 12. The
Declaration is considered to be a precursor to the CAT.
Return to note 73 referrer
- Note 74
Series A,
no. 25, 18 January 1978. The Court stated:
The Court considers in fact that, whilst there exists on the one hand violence which is to be condemned both on moral grounds and also in most cases under the domestic law of the Contracting States but which does not fall within Article 3 of the Convention, it appears on the other hand that it was the intention that the Convention, with its distinction between "torture" and "inhuman or degrading treatment", should by the first of these terms attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering.
Return to note 74 referrer
- Note 75
The European Convention provides a similar 'dual' approach which distinguishes between torture and inhuman or degrading treatment.
Return to note 75 referrer
- Note 76
Burgers and Danelius.
The United Nations Convention against Torture: A Handbook on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. (Martinus Nijhoff Publishers, Dordrecht, 1988), at 120.
Return to note 76 referrer
- Note 77
Report in the Greek case, adopted November 5, 1969, by the European Commission of Human Rights, at Chapter IV, paragraph 2. As quoted in Burgers and Danelius,
supra, note 76, at 114.
Return to note 77 referrer
- Note 78
Some forms of treatment, although not falling within the terms of the definition of torture under s. 97 (1)(a), may nonetheless fall within the "risk" provisions of s. 97(1)(b).
Return to note 78 referrer
- Note 79
For instance, the state's economic policy.
Return to note 79 referrer
- Note 80
Burgers and Danelius,
supra, note 76, at 118.
Return to note 80 referrer
- Note 81
Act: Denotes external manifestation of actor's will. Expression of will or purpose, carrying idea of performance; primarily that which is done or doing; exercise of power, or effect of which power exerted is cause.
Black's Law Dictionary, 6th ed.,
s.v. "act".
Return to note 81 referrer
- Note 82
Omissions may trigger criminal responsibility pursuant to section 219 of the
Criminal Code in situations where there is a legal duty (as set out at section 215) to provide the necessaries of life:
215. (1) Every one is under a legal duty (c) to provide necessaries of life to a person under his charge if that person
- is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and is unable to provide himself with necessaries of life.
Return to note 82 referrer
- Note 83
Burgers and Danelius,
supra, note 76, at 117.
Return to note 83 referrer
- Note 84
Ibid. at 118.
Return to note 84 referrer
- Note 85
Application
no. 25803/94, July 28, 1999. The Court stated:
In order to determine whether a particular form of ill-treatment should be qualified as torture, the Court must have regard to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. As the European Court has previously found, it appears that it was the intention that the Convention should, by means of this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering
Return to note 85 referrer
- Note 86
Burgers and Danelius,
supra, note 76, at 123:
It may also be appropriate to point out that, although the definition of torture in article 1 may give the impression of being a very precise and detailed one, one of the basic concepts which it contains, namely "severe pain or suffering", is in fact a rather vague concept, on the application of which to a specific case there may be very different views. It would not be surprising if the opinions of different persons on this matter would be influenced by their legal background and by the role humanitarian considerations play within their own societies. Nevertheless, it was not the intention of those who drafted the
Convention that the content of the concept of torture should vary from country to country. One of the basic tasks of those who are to apply the
Convention, and in particular of the Committee against Torture set up under its article 17, should be to determine a uniform level above which pain or suffering becomes so severe that the infliction of it constitutes torture.
Return to note 86 referrer
- Note 87
Series A,
no. 25, January 18, 1978.
Return to note 87 referrer
- Note 88
Camille Giffard.
Torture Reporting Handbook. (Human Rights Centre, University of Essex, 2000).
Return to note 88 referrer
- Note 89
See page 15: "Certain types of treatment appear objectively to fall into the category of torture - for example, electric shocks to the genitals, or the pulling out of fingernails. Torture is not, however, limited to such familiar examples - it encompasses many forms of suffering, both physical and psychological in nature. It is particularly important not to forget about psychological forms of ill-treatment - very often these can have the most long-lasting consequences for victims, who may recover from physical injuries yet continue to suffer from deep psychological scarring. Forms of ill-treatment which have been found to amount to torture, either alone or in combination with other forms of treatment, include:
-
Falaka/falanga: beatings on the soles of the feet
- Palestinian hanging: suspension by the arms while these are tied behind the back
- Severe forms of beatings
- Electric shocks
- Rape
- Mock executions
- Being buried alive
- Mock amputations
There are, however, also many grey areas which do not clearly amount to torture, or about which there is still disagreement, but which are of great concern to the international community. Examples include:
- Corporal punishment imposed as a judicial penalty
- Some forms of capital punishment and the death-row phenomenon
- Solitary confinement
- Certain aspects of poor prison conditions, particularly if combined
- Disappearances, including their effect on the close relatives of the disappeared person
- Treatment inflicted on a child which might not be considered torture if inflicted on an adult
Return to note 89 referrer
- Note 90
As quoted in Anker.
Law of Asylum in the United States. (Refugee Law Centre Inc., 1999), at chapter 7.
Return to note 90 referrer
- Note 91
Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Submitted to the United Nations High Commissioner for Human Rights, August 9, 1999.
Return to note 91 referrer
- Note 92
Burgers and Danelius,
supra, note 76, at 118.
Return to note 92 referrer
- Note 93
A/56/156. Dated July 3, 2001.
Return to note 93 referrer
- Note 94
U.S. Department of State Initial Report of the United States of America to the
UN Committee Against Torture Submitted by the United States of America to the Committee Against Torture, October 15, 1999:
To provide the requisite clarity for purposes of domestic law, the United States therefore conditioned its ratification upon an understanding that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from: (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality.
Return to note 94 referrer
- Note 95
Giffard,
supra, note 88.
Return to note 95 referrer
- Note 96
Report of the Special Rapporteur on violence against women, its causes and consequences. E/CN.4/1998/54. January 26, 1998.
Return to note 96 referrer
- Note 97
Supra, note 41.
Return to note 97 referrer
- Note 98
Article 3(1): No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Return to note 98 referrer
- Note 99
Supra, note 49.
Return to note 99 referrer
- Note 100
United States of America v. Burns, [2001] 1
S.C.R. 283.
Return to note 100 referrer
- Note 101
Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of May 13, 1977.
Return to note 101 referrer
- Note 102
Report from the Committee for the Prevention of Torture, UK (CPT/Inf (91)15), para. 57, in Roland Bank. "International Efforts to Combat Torture and Inhuman Treatment: Have the New Mechanisms Improved Protection?" In
European Journal of International Law, 1999. (Part of
Academy of European Law (PDF, 1.41 MB) online). The report also states:
Other practices, such as the handcuffing of pregnant prisoners to their beds in a civil hospital prior to delivery and the lack of provision of activities for prisoners held for 23 hours a day in an overcrowded cell, were designated as `inhuman treatment'. In addition, the CPT noted a constant threat of inhuman treatment in one psychiatric institution, where therapeutic initiatives and safeguards for the application of physical restraints were missing.
Return to note 102 referrer
- Note 103
In its 2001 report to the
UN General Assembly .A/56/156. Dated July 3, 2001. The report also states:
12. The Special Rapporteur also notes that, in article 1, the Declaration states that any act of enforced disappearance inflicts severe suffering on the victims and their families and in the fifth preambular paragraph refers to the anguish and sorrows caused by those disappearances. The Special Rapporteur would like to emphasize that the working definition of "disappearance" refers also to the refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty. This is an intentional act directly affecting close family members. Being fully aware they are hurling family members into a turmoil of uncertainty, fear and anguish regarding the fate of their loved one(s), public officials are said to maliciously lie to the family, with a view to punishing or intimidating them and others 14. The Special Rapporteur notes that, according to both Committees, the rationale of duration has often been considered one of the principal elements in determining the severity of ill-treatment. While reaffirming that enforced disappearances are unlawful under international law and cause much anguish, whatever their duration, the Special Rapporteur believes that to make someone disappear is a form of prohibited torture or ill-treatment, clearly as regards the relatives of the disappeared person and arguably in respect of the disappeared person or him/herself. He further believes that prolonged incommunicado detention in a secret place may amount to torture as described in article 1 of the Convention against Torture. The suffering endured by the disappeared persons, who are isolated from the outside world and denied any recourse to the protection of the law, and by their relatives doubtless increases as time goes by.
Return to note 103 referrer
- Note 104
Supra, note 15. The preamble to the
Convention states:
Bearing in mind that the need to extend particular care to the child has been stated in the
Geneva Declaration of the Rights of the Child of 1924 and in the
Declaration of the Rights of the Child adopted by the General Assembly on 20 November 1959 and recognized in the
Universal Declaration of Human Rights, in the
International Covenant on Civil and Political Rights (in particular in articles 23 and 24), in the
International Covenant on Economic, Social and Cultural Rights (in particular in article 10) and in the statutes and relevant instruments of specialized agencies and international organizations concerned with the welfare of children, Bearing in mind that, as indicated in the
Declaration of the Rights of the Child, "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth"
Return to note 104 referrer
- Note 105
State Violence Against Children: Report and General Recommendations. September 22, 2000. Committee on the Rights of the Child. Found online at
http://www.ohchr.org/Documents/HRBodies/CRC/Discussions/Recommendations/Recommendations2000.pdf (PDF, 165 KB).
Return to note 105 referrer
- Note 106
Intentionally: To do something purposely, and not accidentally. Person acts "intentionally" if he desires to cause consequences of his act or he believes consequences are substantially certain to result.
Black's Law Dictionary, 6th ed.,
s.v. "intentionally".
Return to note 106 referrer
- Note 107
Torture is distinguishable from cruel, inhuman or degrading treatment or punishment on the basis of the severity of the pain or suffering and the deliberate manner in which it is inflicted. See Article 1(2) of the
UN Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and
Ireland v. U.K., Series A,
no. 25, 18 January 1978.
Return to note 107 referrer
- Note 108
Non-Marine Underwriters, Lloyd's of London v. Scalera, [2000] 1
S.C.R. 551.
Return to note 108 referrer
- Note 109
For ease of reference, the term "state agent" will be used throughout to refer to all agents of the state who are described within the definition of torture. Note that if there is no state involvement, other grounds of protection may apply.
Return to note 109 referrer
- Note 110
R.S.C.. 1985, c. I-21.
Return to note 110 referrer
- Note 111
Mirriam Webstrer's Collegiate Dictionary, 10th ed.,
s.v. "public officer".
Return to note 111 referrer
- Note 112
Other individuals may act officially (i.e., within the mandate of their office) without having any connection to the state. For instance, the president of a corporation may officially open a corporate meeting.
Return to note 112 referrer
- Note 113
Oxford English Dictionary, 2nd ed.,
s.v. "official".
Return to note 113 referrer
- Note 114
Westeel-Rosco Limited v. South Saskatchewan Hospital Centre, [1977] 2
S.C.R. 238.
Whether or not a particular body is an agent of the Crown depends upon the nature and degree of control which the Crown exercises over it.
Return to note 114 referrer
- Note 115
R. v. Eldorado Nuclear Limited, [1983] 2
S.C.R. 551.
At common law the question whether a person is an agent or servant of the Crown depends on the degree of control which the Crown, through its ministers, can exercise over the performance of his or its duties. The greater the control, the more likely it is that the person will be recognized as a Crown agent. Where a person, human or corporate, exercises substantial discretion, independent of ministerial control, the common law denies Crown agency status. The question is not how much independence the person has in fact, but how much he can assert by reason of the terms of appointment and nature of the official.
Return to note 115 referrer
- Note 116
Peter Hogg,
Constitutional Law of Canada. 3rd Ed. (Toronto: Carswell, 1992), at page 261.
Return to note 116 referrer
- Note 117
McKinney v. University of Guelph, [1990] 3
S.C.R. 229, at paragraphs 243-244.
Return to note 117 referrer
- Note 118
Note that, even if a person under the factual control of a public official were not considered to be acting in an official capacity, his or her conduct would nevertheless be at the instigation of, or have the consent or acquiescence of, a public official. For example, abuse by wardens in a private prison would not be committed by a 'public official' under the restrictive "legal control" test. However, it is likely the tribunal could find tacit approval by state authorities.
Return to note 118 referrer
- Note 119
Supra, at s. 5.2.1.
Return to note 119 referrer
- Note 120
Instigation: Incitation; urging; solicitation. The act by which one incites another to do something, as to commit some crime or to commence a suit.
Black's Law Dictionary, 6th ed.,
s.v. "instigation".
Return to note 120 referrer
- Note 121
This may occur, for example, where the state government encourages the public to attack a particular ethnic or religious minority.
Return to note 121 referrer
- Note 122
Consent: A concurrence of wills. Agreement; approval; permission; the act or result of coming into harmony or accord.
Black's Law Dictionary, 6th ed.,
s.v. "consent".
Return to note 122 referrer
- Note 123
Acquiescence: Conduct from which assent may be reasonably inferred. Equivalent to assent inferred from silence with knowledge or from encouragement and presupposes knowledge and assent. Imports tacit consent, concurrence, acceptance or assent. A silent appearance of consent. Failure to make any objections.
Black's Law Dictionary, 6th ed.,
s.v. "acquiescence".
Return to note 123 referrer
- Note 124
Rajudeen v. Canada (Minister of Employment and Immigration.), (1984), 55
N.R. 129 (F.C.A.).
Return to note 124 referrer
- Note 125
Surujpal v. Canada (Minister of Employment and Immigration), (1985), 60
N.R. 73 (F.C.A.).
Return to note 125 referrer
- Note 126
Supra, note 124.
Return to note 126 referrer
- Note 127
Report of the Special Rapporteur, Sir Nigel Rodley, submitted pursuant to the
UN Commission on Human Rights Resolution 2000/43. "Civil and Political Rights Including the Questions of Torture and Detention".
Return to note 127 referrer
- Note 128
For example, obtaining a confession from a suspect, or proceeding with his judicially sanctioned punishment for a criminal offence, are legitimate ends, subject to the legitimacy of the means used.
Return to note 128 referrer
- Note 129
Burgers, J. and Danelius, H.,
supra, note 76, at 119.
Return to note 129 referrer
- Note 130
Confession: A voluntary statement made by a person charged with the commission of a crime or misdemeanor, communicated to another person, wherein he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of the act or the share and participation which he had in it.
Black's Law Dictionary, 6th ed.,
s.v. "confession".
Return to note 130 referrer
- Note 131
As provided in Article 1 of the
CAT:
[Torture] does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Return to note 131 referrer
- Note 132
Intimidation: unlawful coercion; extortion; duress; putting in fear.
Black's Law Dictionary, 6th ed.,
s.v. "intimidation".
Return to note 132 referrer
- Note 133
Coercion: Compulsion, constraint, compelling by force or arms or threat.
Black's Law Dictionary, 6th ed.,
s.v. "coercion".
Return to note 133 referrer
- Note 134
Law Society British Columbia v. Andrews, [1989] 1
S.C.R. 143, at paragraph 37.
Return to note 134 referrer
- Note 135
Ibid.
Return to note 135 referrer
- Note 136
Fleming v. Reid (1991), 82
D.L.R. (4th) 298 (Ont. C.A.). Cited with approval in
Ciarlariello v. Schacter, [1993] 2
S.C.R. 119.
The requirement for consent is also found in the
International Covenant on Civil and Political Rights:
Article 7: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
Return to note 136 referrer
- Note 137
Section 269.1 of the
Criminal Code, which incorporates part of the definition of torture found at Article 1 of the
CAT, also does not provide a definition.
Return to note 137 referrer
- Note 138
Supra, note 101.
Return to note 138 referrer
- Note 139
Supra, note 12.
Return to note 139 referrer
- Note 140
Supra, note 76 at 121 and 122.
Return to note 140 referrer
- Note 141
Debra Anker,
Law of Asylum in the United States, (Refugee Law Center, Inc., 1999), excerpt from chapter 7 entitled "Protection from Return to Torture: International Legal Protections and Domestic Law"; Ahcene Boulesbaa, "Analysis and Proposals for the Rectification of the Ambiguities Inherent in Article 1 of the
UN Convention on Torture",
Florida International L.J., vol. 5, summer 1990, 293-326; Matthew Lippman, "The Developments and Drafting of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,"
Boston International and Comparative L.R., Summer 1994, 17n2, 275-335. See also Pnina Baruh Sharvit, "The Definition of Torture in the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,"
Israel Yearbook on Human Rights, I74 23, (1993) 147-175 for a differing view. The author states that judging lawfulness in the light of international law would lead to a tautological result since the exception would refer to the rule as part of its definition.
Return to note 141 referrer
- Note 142
Note that s. 97(1)(b) refers to "accepted" international standards. The term "accepted" is not mentioned in the French version of the provision.
Return to note 142 referrer
- Note 143
In
Suresh, supra, note 4, the Supreme the Court stated:
[65] Although this Court is not being asked to pronounce on the status of the prohibition on torture in international law, the fact that such a principle is included in numerous multilateral instruments, that it does not form part of any known domestic administrative practice, and that it is considered by many academics to be an emerging, if not established peremptory norm, suggests that it cannot be easily derogated from.
Return to note 143 referrer
- Note 144
Baker, supra, note 23 is also relevant.
Return to note 144 referrer
- Note 145
Supra, note 17.
Return to note 145 referrer
- Note 146
Supra, note 13.
Return to note 146 referrer
- Note 147
Supra, note 18.
Return to note 147 referrer
- Note 148
International Convention on the Elimination of All Forms of Racial Discrimination, 660
U.N.T.S. 195, entered into force Jan. 4, 1969.
Return to note 148 referrer
- Note 149
Supra, note 8.
Return to note 149 referrer
- Note 150
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,
G.A. res. 43/173, annex, 43 U.N. GAOR Supp. (no. 49) at 298, U.N. Doc. A/43/49 (1988).
Return to note 150 referrer
- Note 151
Supra, note 101.
Return to note 151 referrer
- Note 152
Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, E.S.C. res. 1984/50, annex, 1984 U.N. ESCOR Supp. (no. 1) at 33, U.N. Doc. E/1984/84 (1984).
Return to note 152 referrer
- Note 153
United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules),
G.A. res. 45/110, annex, 45 U.N. GAOR Supp. (no. 49A) at 197, U.N. Doc. A/45/49 (1990).
Return to note 153 referrer
- Note 154
Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
G.A. res. 37/194, annex, 37 U.N. GAOR Supp. (no. 51) at 211, U.N. Doc. A/37/51 (1982).
Return to note 154 referrer
- Note 155
Basic Principles on the Independence of the Judiciary, Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, 26 August to 6 September 1985, U.N. Doc. A/CONF.121/22/Rev.1 at 59 (1985).
Return to note 155 referrer
- Note 156
See Anker and Lippman,
supra, note 141.
Return to note 156 referrer
- Note 157
Cheung v.
M.C.I., [1993] 2
F.C. 314 (C.A.); See also
Chan v. Canada (Minister of Employment and Immigration), [1995] 3
S.C.R. 593;
Valentin v. Canada (Minister of Employment and Immigration), [1991] 3
F.C. 390;
Canada (Minister of Employment and Immigration) v. Satiacum, (1989) 99
N.R. 171 (F.C.A.);
Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3
F.C. 540.
Return to note 157 referrer
- Note 158
R. v. Smith, [1987] 1
S.C.R. 1045.
Return to note 158 referrer
- Note 159
Latimer v. R., [2001] 1
S.C.R. 3.
Return to note 159 referrer
- Note 160
Miller and Cockriell v. R., [1977] 2
S.C.R. 690.
Return to note 160 referrer
- Note 161
Kroon, Victor v.
M.E.I. (F.C.T.D.,
no. IMM-3161-93), MacKay, January 6, 1995.
Return to note 161 referrer
- Note 162
Supra, note 4. The Supreme Court of Canada concluded that, in general, Canada may not deport a person to a country where he or she faces a substantial risk of torture.
Return to note 162 referrer
- Note 163
The language used at s. 7 of the
Charter.
Return to note 163 referrer
- Note 164
Arica v. Canada (Minister of Employment and Immigration) (1995), 182
N.R. 392 (F.C.A.). (Court File No. A-153-92, Stone, Robertson and McDonald JJ. 1995 May 3). Application for leave to appeal to the Supreme Court of Canada dismissed on November 16, 1995. See also
Atef v. Canada (Minister of Citizenship and Immigration), [1995] 3
F.C. 86. (Court File No. IMM-4014-94, Wetston J. May 29, 1995).
Return to note 164 referrer
- Note 165
Supra, note 2, s. 2(2), and 2(3).
Return to note 165 referrer
- Note 166
S. 108 of the
IRPA.
Return to note 166 referrer
- Note 167
Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2
F.C. 739 (C.A.), at 748.
Return to note 167 referrer
- Note 168
As opposed to situations where the claimant alleges a danger of torture prospectively but does not allege to have been a victim of torture in the past.
Return to note 168 referrer
- Note 169
This framework is strictly for the issues raised in s. 97(1)(a), not for the entire range of issues that will need to be determined in the consolidated hearing.
Return to note 169 referrer
- Note 170
The Committee maintains an internet site at
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx which provides background information and access to its decisions in English, French, and Spanish.
Return to note 170 referrer
- Note 171
Article 3
1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
Return to note 171 referrer
- Note 172
Ibid.
Return to note 172 referrer