CAT/C/CAN/CO/6
Recalling its previous recommendation (CAT/C/CR/34/CAN, paras. 5 (a) and (b)), the
Committee urges the State party to amend relevant laws, including the Immigration
and Refugee Protection Act, with a view to unconditionally respecting the absolute
principle of non-refoulement in accordance with article 3 of the Convention, and take
all necessary measures to fully implement it in practice in all circumstances.
Furthermore, the State party should refrain from the use of diplomatic assurances as a
means of returning a person to another country where there are substantial grounds
for believing that he would be in danger of being subjected to torture.
10.
The Committee regrets the State party’s failure to comply in every instance with the
Committee’s decisions under article 22 of the Convention and requests for interim measures
of protection, particularly in cases involving deportation and extradition (with reference to
communications Nos. 258/2004, Dadar v. Canada, and 297/2006, Sogi v. Canada), might
undermine its commitment to the Convention. The Committee recalls that the State party,
by ratifying the Convention and voluntarily accepting the Committee’s competence under
article 22, undertook to cooperate with the Committee in good faith in applying and giving
full effect to the procedure of individual complaints established thereunder. Consequently,
the Committee considers that, by deporting complainants despite the Committee’s decisions
or requests for interim measures, the State party has committed a breach of its obligations
under articles 3 and 22 of the Convention (arts. 3 and 22).
The State party should fully cooperate with the Committee, in particular by respecting
in every instance its decisions and requests for interim measures. The Committee
recommends the State party review its policy in this respect, by considering requests
for interim measures in good faith and in accordance with its obligations under
articles 3 and 22 of the Convention.
11.
While noting the State party’s statement that the Canadian Forces assessed the risk
of torture or ill-treatment before transferring a detainee into Afghan custody
(CAT/C/CAN/Q/6/Add.1, para. 155), the Committee is concerned about several reports that
some prisoners transferred by Canadian Forces in Afghanistan into the custody of other
countries have experienced torture and ill-treatment (art. 3).
The State party should adopt a policy for future military operations that clearly
prohibits the prisoner transfers to another country when there are substantial grounds
for believing that he or she would be in danger of being subjected to torture and
recognizes that diplomatic assurances and monitoring arrangements will not be relied
upon to justify transfers when such substantial risk of torture exists.
Security certificates under the Immigration and Refugee Protection Act
12.
While taking note of the system of special advocates introduced by the amended
Immigration and Refugee Protection Act in response to concerns raised by different actors
and the judgement by the Supreme Court in the case of Charkaoui v. Canada, the
Committee remains concerned that (arts. 2, 3, 15 and 16):
(a)
Special advocates have very limited ability to conduct cross-examinations or
to seek evidence independently;
(b)
Individuals subject to security certificates have access to a summary of
confidential materials concerning them and cannot directly discuss full content with the
special advocates. Accordingly, the advocates cannot properly know the case against them
or make full answer or defence in violation of the fundamental principles of justice and due
process;
(c)
The length of this detention without charge is indeterminate and some
individuals are detained for prolonged periods; and
3