C-498
Third Session, Fortieth Parliament,
59 Elizabeth II, 2010
HOUSE OF COMMONS OF CANADA
BILL C-498
An Act prohibiting the commission, abetting or exploitation of torture by Canadian officials and ensuring freedom from torture for all Canadians at home and abroad and making consequential amendments to other Acts
first reading, March 15, 2010
Mr. Marston
403032
SUMMARY
This enactment strengthens Canada's protection against torture by making it a criminal offence to use information known to be derived from torture; prohibiting Canadian officials from handing over prisoners to be tortured at home or abroad; creating a government watch list of countries known to engage in torture and providing for those countries to be treated accordingly in matters relating to information-sharing and deportation and extradition from Canada; placing a duty on officials to report knowledge of torture to the proper authorities; and establishing diplomatic protocols for the immediate repatriation of any Canadian citizen at risk of torture abroad, without undermining our ability to investigate and prosecute those citizens in Canada.
Also available on the Parliament of Canada Web Site at the following address:http://www.parl.gc.ca
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3rd Session, 40th Parliament,
59 Elizabeth II, 2010
house of commons of canada
BILL C-498
An Act prohibiting the commission, abetting or exploitation of torture by Canadian officials and ensuring freedom from torture for all Canadians at home and abroad and making consequential amendments to other Acts
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Short title
1. This Act may be cited as the Prevention of Torture Act.
PURPOSE
Purpose
2. (1) The purpose of this Act is
(a) to ensure that Canada meets or exceeds the standards set out in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights;
(b) to ensure that the Government of Canada and its agents conduct their affairs in a manner that consistently serves to keep both Canadians and foreign nationals free from torture in any matter in respect of which Canada has jurisdiction or influence; and
(c) to clarify and strengthen Canada’s position with respect to the infliction of torture.
Principles
(2) This Act shall be carried out in accord- ance with and in recognition of the following principles:
(a) the infliction of torture by the Government of Canada and its agents is prohibited;
(b) the encouragement of or complicity in torture by the Government of Canada and its agents is prohibited;
(c) the use by Canadian officials of information acquired through torture is prohibited;
(d) the Government of Canada and its agents shall protect Canadian citizens from torture abroad; and
(e) the Government of Canada and its agents shall undertake timely and effective investigations to ensure compliance with this Act.
INTERPRETATION
Definitions
3. The following definitions apply in this Act.
“Department”« ministère »
“Department” means the Department of Foreign Affairs and International Trade.
“governmental department”« ministère fédéral »
“governmental department” means an investigative agency or a department of the federal government.
“investigative agency”« organisme d’enquête »
“investigative agency” means the Royal Canadian Mounted Police, the Canadian Security Intelligence Service, the Communications Security Establishment and any other governmental department, other than the Department of Foreign Affairs and International Trade, which is involved in the collection of information that may be relevant under this Act.
“Minister”« ministre »
“Minister” means the Minister of Foreign Affairs.
“official”« fonctionnaire »
“official” means
(a) a peace officer;
(b) a public officer;
(c) a member of the Canadian Forces;
(d) any employee or agent of, or contractor providing services for
(i) Parliament,
(ii) the Governor in Council,
(iii) the Government of Canada, or
(iv) a Canadian consulate or embassy; or
(e) any agent corporation as defined in section 83 of the Financial Administration Act, or any person outside Canada who may exercise powers that would, in Canada, be exercised by a person referred to in paragraphs (a) to (d).
“sensitive information”« renseignements sensibles »
“sensitive information” means information relating to
(a) national defence;
(b) national security; or
(c) national or international law enforcement.
“torture”« torture »
“torture” means any act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person
(a) for a purpose including
(i) obtaining from the person or from a third person information or a statement,
(ii) punishing the person for an act that the person or a third person has committed or is suspected of having committed, and
(iii) intimidating or coercing the person or a third person, or
(b) for any reason based on discrimination of any kind,
but does not include any act or omission by which pain or suffering arises only from, is inherent in or is incidental to lawful imprisonment in humane and reasonable conditions.
OBLIGATIONS OF DEPARTMENT
Obligations of Department
4. The Department shall
(a) collect, organize and provide reasonable access to timely information regarding the practice of torture abroad;
(b) respond in a timely fashion to requests from officials for information regarding the practice of torture abroad, taking into account the interests of national security and the obligations of the official requesting the information;
(c) maintain an updated list of countries suspected of engaging in torture, taking into account all relevant intelligence, including whether there has been a consistent pattern of human rights violations within a country; and
(d) disseminate the list referred to in paragraph (c) to all officials who may be involved, directly or indirectly, in decisions that have the potential to subject a person to torture.
PROHIBITIONS
Exposure to risk of torture
5. (1) No official shall expose any prisoner or detainee to substantial risk of torture by
(a) releasing, transferring or ordering the release or transfer of that prisoner or detainee into the custody of another person, group of persons or government entity; or
(b) knowingly or recklessly abandoning a prisoner or detainee, where there are reasonable grounds for believing the prisoner or detainee would be in danger of being subjected to torture.
Applicable to all prisoners or detainees
(2) Subsection (1) applies to any prisoner or detainee in the custody of any official, regardless of
(a) the residency or citizenship of the prisoner or detainee;
(b) the location in which the prisoner or detainee is being held in custody; or
(c) the location in which or to which the transfer is to take or has taken place.
No expulsion, extradition
6. (1) Notwithstanding any other Act of Parliament, no official shall expel or extradite a person to another country if there are reasonable grounds for believing that the person may be subjected to torture in the other country.
Due diligence
(2) For the purposes of determining whether grounds referred to in subsection (1) exist, an official shall consult all of the relevant material, including all the relevant information collected under paragraphs 4(a) and (c).
If reasonable suspicion of torture
7. (1) The Department and investigative agencies shall not provide a foreign country listed under paragraph 4(c) with any information where there is any reasonable suspicion the information may be used for torture.
If reasonable risk of torture
(2) The Department and investigative agencies shall not provide any other foreign country with information where there is a reasonable risk that the information may be used for torture.
Agreement to be signed
(3) If there is no reason to suspect the information mentioned in subsections (1) and (2) may be used for torture, the information may be shared with a country, subject to an agreement to be signed by that country, stating that the information shall not be used for torture.
Contravention of agreement to be reported
(4) If an official has reasonable grounds to believe that an agreement under subsection (3) has been contravened, the official shall immediately submit all relevant information to the Minister.
Minister to make formal objection
(5) If the Minister is of the opinion that an agreement under subsection (3) has been contravened, the Minister shall make a formal objection to the foreign country that has committed the contravention.
DISCLOSURE OF INFORMATION
Information sharing
8. (1) Prior to requesting sensitive information from foreign officials, an official shall take reasonable steps to ensure that the information requested is not derived from an act of torture.
Dissemination of sensitive information
(2) Prior to using or disseminating sensitive information obtained from foreign officials in countries listed under paragraph 4(c), the official shall
(a) seek a guarantee from an appropriate and competent foreign authority that the information to be used was not derived from torture; and
(b) take appropriate steps to assess the reliability of that guarantee and of the information itself.
Dissemination of sensitive information
(3) Prior to disseminating sensitive information obtained from foreign officials in countries listed under paragraph 4(c), the official shall mark that information as being derived from a country listed under that paragraph and include an indication of its reliability according to the results of the investigative measures taken under paragraph (2)(b).
Information not to be provided
(4) No official or investigative agency shall provide information to any foreign country where there is a reasonable risk that it will cause or contribute to the use of torture.
DUTY TO REPORT
Duty to report
9. (1) If an official has reasonable grounds to suspect that torture is being committed abroad by a Canadian official other than a Royal Canadian Mounted Police officer, the official shall immediately report any information respecting the suspected torture to the Royal Canadian Mounted Police and to the Minister.
Torture — RCMP
(2) If an official has reasonable grounds to suspect that torture is being committed abroad by a member, employee, agent or contractor in the service of the Royal Canadian Mounted Police, the official shall immediately report any information respecting the suspected torture to the Royal Canadian Mounted Police Public Complaints Commission and to the Minister.
Torture — other than Canadian official
(3) If an official has reasonable grounds to suspect that torture is being committed abroad by a person other than a Canadian official, the official shall immediately report any information respecting the suspected torture to the Minister.
TORTURE OF CANADIAN CITIZEN ABROAD
Report to Minister
10. (1) If an official, including a Canadian consular official, becomes aware of any information suggesting that a Canadian citizen is being or has been subjected to torture by any person, group of persons or government entity abroad, that official shall immediately file a report outlining the grounds for that suspicion to the Minister.
Minister to secure custody
(2) If a report is filed under subsection (1), or if the Minister becomes aware in any other manner that a Canadian citizen has a reasonable risk of being tortured while detained abroad, the Minister shall undertake all reasonable diplomatic measures to secure custody of that citizen for return to Canada, regardless of whether that citizen is a person of interest to an investigative agency, a person listed on a government watch list, a person listed on a border lookout list, a person suspected of a crime or a person facing criminal charges.
Consular rights to be exercised
(3) The diplomatic measures referred to in subsection (2) shall include the exercise, to the fullest extent possible, of Canada’s consular rights in relation to the country in which the citizen is being detained, including the rights referred to in Article 36 of the Vienna Convention on Consular Relations.
Assistance of other agencies
(4) If the Minister initiates diplomatic meas- ures under subsection (2), the Minister may request the assistance of any governmental department or of any agency of a foreign government in order to secure the custody of that citizen for return to Canada.
Request to governmental department
(5) A governmental department receiving a request under subsection (4) shall make concerted efforts to fulfil the Minister’s request.
Protocol to be developed
(6) The Minister, in conjunction with investigative agencies and other governmental departments the Minister deems appropriate, shall develop a protocol to provide for a coordinated strategy to respond in a timely fashion with all due diligence to situations in which a Canadian citizen is being detained in a country where there is a reasonable risk the citizen is being or may be subjected to torture.
Protocol
(7) The protocol referred to in subsection (6) shall include:
(a) requirements for mutual consultation among designated members of the investigative agencies and governmental departments involved;
(b) provisions for arriving at and implementing a unified approach in a timely fashion; and
(c) political accountability for the protocol as a whole, as well as the course of action adopted in any particular circumstance.
No prejudice
(8) No efforts undertaken under this section by the Minister or a governmental department shall undermine or prejudice in any way
(a) the ability of the Minister of Public Safety or the Attorney General of Canada to initiate or continue criminal or other proceedings against a citizen who has been returned to Canada under this section; or
(b) the ability of any investigative or law enforcement agency to lawfully arrest, charge, initiate or continue investigations involving a citizen who has been returned to Canada under this section.
OFFENCE AND PUNISHMENT
Offence and punishment
11. Every person who contravenes this Act is guilty of an offence and liable
(a) on summary conviction, to a fine of not more than $500,000 or to imprisonment for a term of not more than three years, or to both; or
(b) on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than 10 years, or to both.
CONSEQUENTIAL AMENDMENTS
R.S., c. A-1
Access to Information Act
12. Section 15 of the Access to Information Act is amended by adding the following after subsection (1):
Release of information
(1.1) Nothing in subsection (1) shall be construed as to prevent the release of information which relates to torture.
R.S., c. C-46
Criminal Code
13. Paragraph 7(3.7)(c) of the Criminal Code is replaced by the following:
(c) the person who commits the act or omission is a Canadian citizen or official as defined in section 269.1;
14. Subsections 269.1(1) and (2) of the Act are replaced by the following:
Torture
269.1 (1) Every official, or every person acting at the instigation of or with the consent or acquiescence of an official, who inflicts torture on any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding twenty years.
Definitions
(2) For the purposes of this section and sections 269.2 and 269.3,
“official”« fonctionnaire »
“official” means
(a) a peace officer,
(b) a public officer,
(c) a member of the Canadian Forces, or
(d) any employee or agent of, or contractor providing services for the Crown or any agent corporation as defined in section 83 of the Financial Administration Act, or any person who may exercise powers that would, in Canada, be exercised by a person referred to in this paragraph or in paragraph (a), (b) or (c),
whether the person exercises powers in Canada or outside Canada.
“torture”« torture »
“torture” means any act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person
(a) for a purpose including
(i) obtaining from the person or from a third person information or a statement,
(ii) punishing the person for an act that the person or a third person has committed or is suspected of having committed, and
(iii) intimidating or coercing the person or a third person, or
(b) for any reason based on discrimination of any kind,
but does not include any act or omission by which pain or suffering arises only from, is inherent in or is incidental to lawful imprisonment in humane and reasonable conditions.
15. The Act is amended by adding the following after section 269.1:
Party to offence of torture
269.2 (1) For greater certainty, any official who is a party to an offence under sections 21 to 24 involving torture is a party to torture.
Counselling torture
(2) Notwithstanding subsection 22(3), for the purposes of determining whether an official is a party to torture, “counsel” includes procure, solicit, incite, recommend, capitulate to or encourage, whether implicitly or explicitly, by act or omission.
Use of information derived from torture
269.3 (1) Every official who knowingly uses information derived from an act of torture is guilty of an indictable offence and liable to imprisonment for a term not exceeding 20 years.
Punishment
(2) Every official who uses information that the official ought to have known was derived from torture is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding six months.
Statement inadmissible
(3) In any proceedings over which Parliament has jurisdiction, any statement obtained as a result of the commission of an offence under this section is inadmissible in evidence, except as evidence that the statement was so obtained.
When information may be used
(4) For greater certainty, it is not an offence to use information derived from torture in connection with any judicial proceeding against a person accused of torture, or to communicate the information to persons concerned in such proceedings.
COMING INTO FORCE
Coming into force
16. This Act shall come into force 30 days after it receives royal assent.
Published under authority of the Speaker of the House of CommonsAvailable from:Publishing and Depository ServicesPublic Works and Government Services Canada