Canada: Champion of Human Rights? or Torture State?

There are many forms and means of torturing prisoners as it occurs in the North American and more specifically in the Canadian context. Torture is illegal in Canada and prevented by several bodies of law including the Corrections and Conditional Release Act (CCRA), which mandates prisoner treatment, and the Charter of Rights and Freedoms.  Canada has also ratified international agreements which prevent us from engaging in torture on any level, including turning a blind eye. [UN Basic Principles for the Treatment of Prisoners ; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)]. Despite this fact, we have witnessed many examples over the years and especially since 9/11 where politicians and others in positions of power excused or re-classified torture as something less than torture.

The Canadian government, mainstream media, and even much of the Canadian public have been complicit in Canada's involvement in the torture of prisoners abroad (Mahar Arar, Abousfian Abdelrazik, Abdullah Almalki, Muayyed Nureddin, Ahmad El Maati, and Afghan detainees, all of whom were handed over to torturers by the Canadian government and our allies).  And complicit in the torture of prisoners here at home (Ashley Smith, Donald Marshall Jr., David Milgaard, Guy Paul Morin, Ahmad Mustafa Ghany, Zakaria Amara)

 Mahar Arar

Ashley Smith

To guard against the practice of torturing prisoner's we have built in rights and protections for the treatment of prisoners in western society.   Despite this, there is little oversight, access to, or supervision of prisoners, guards, and other staff in the prison setting. What goes on behind those walls is for the most part closed to the public view.  Even with legal protections and codes of conduct built into the system, prisoners who protest run the risk of making things much worse for themselves inside.

Muddying the waters further is the fact that what constitutes torture is never really spelled out with any adequate or effective detail in law, rules, or conventions. Much is left open to interpretation. And some policies and procedures for dealing with non-compliant or mentally ill prisoners, are in fact forms of torture.  However they may not be considered so by law. And in those cases where the courts would likely rule practices to constitute torture, the courts are never given a chance to do so because it is too expensive and too dangerous for most prisoners to persevere and take their cases to a judge.

A UN report (2010), which investigated accusations that NATO countries, including Canada, had turned over Afghan detainees to certain torture, defined torture as occurring “when State officials, acting in their official capacity inflict or order, consent or acquiesce, to the infliction of severe physical or mental pain or suffering against an individual to obtain a confession or information, or to punish or discriminate against the individual."  

We can see from this particular definition that much is left open to interpretation. And interpretation is known to morph, shift, and change as societal attitudes change, new governments take power, etc.

For instance when considering what causes metal anguish or suffering, one must concede that it varies from person to person and from time to time. Depending on a persons physical and mental health to begin with, pain or suffering may begin much earlier in the process than with  healthier persons. Not only does the point at which pain and suffering begins vary from person to person, but interpreting it or understanding the presence of it can vary from one torturer to another.

So how is torture determined in Canada?

Overt forms of cruel and unusual punishment which few would or could argue, not to be torture, are acts of violence causing serious injury that maims, or kills.

Less overt forms of pain and suffering that are subject to argument and contention, both in Canadian law and in the minds of the Canadian public are routines like arbitrary and frequent strip searches, various degrees of sensory deprivation, like that which occurs in solitary confinement, long periods without adequate food and water, refusal to provide effective treatment and pain medication for serious illnesses like cancer and HIV/AIDS, caging 2 or 3 people to a 1 person cell, the use of loopholes to extend a persons stay in solitary (like that which was done to Ashley Smith), and the use of “dry” cells, etc.

Even less clear in defining what constitutes cruel and unusual punishment are policies which deny pain relief and treatment for non-lethal but severe and chronic medical conditions, cutting off treatment for Trans-gendered prisoners undergoing hormonal therapy, not allowing Trans prisoners to self identify their own gender, not providing prisoners basic supplies to maintain hygiene, conducting late night cell searches, denying the minimum allowable by law for yard, phone, and shower time, etc.

I believe that whether these repugnant prison routines constitute torture or not in the minds of politicians and the Canadian people would become very clear if they themselves or a loved one were subjected to such treatment.

I have been denied medical attention and pain relief myself in jail. I have also witnessed many others suffering needlessly. I can assure you it is a form of torture and that there is no good reason for it. Imagine suffering some injury, broken bones, a severe allergic reaction, or any kind of intolerable pain. Now imagine that there is not one damn thing you can do about it. You can't get up and take yourself to hospital, or call yourself an ambulance. You can't call your family physician and have a script sent to the pharmacy. There is no opportunity to knock on a neighbour's door and ask for or even purchase something for pain relief. You can't grab some ice from the freezer in hopes of just taking the merest edge off. There is no helping yourself to some ibuprofen or taking some of those leftover oxy's you have from an earlier treatment. You won't be getting up to distract yourself with TV, a book, or to pace back and forth.

I spent several months, hours each day, and  up through the long, long nights rocking myself quietly back and forth because I could do nothing else. It was the worst kind of painful hell imaginable. I can hardly describe the feeling of utter hopelessness, frustration, and despair at being denied the basic human right to look after ones own body, your own needs. At being locked in this place with your life and well being in the hands of ill trained, indifferent, and uncaring staff, some of whom will be the most psychotic, masochistic people any of us have ever had the misfortune to meet.

I was eventually given basic medical treatment for a straight forward, easily treatable medical issue. I was not provided a choice about which treatment I wanted and I would have chose other options had others been open to me.  For this privilege I had to wait 3 months.  Others wait much longer.  And some prisoners are never provided relief from the torture or from their torturers.

• The Fifth Estate on Ashley Smith

           www.cbc.ca/fifth/2009-2010/out_of_control/9 Jan 2010

           www.cbc.ca/fifth/2010-2011/behindthewall/

• Cruel and Unusual:
  US Film surrounding the issue of being Transgender in prison. With interviews of US prisoners.   (on Youtube)

• Justice Behind the Walls. For a story on solitary confinement from the 70's in Canada which changed some of the law surrounding how long someone could be continuously held in solitary.  http://www.justicebehindthewalls.net/book.asp?cid=770

• Canadian Prison Law I found the below court case on a web site called Canadian Prison Law (http://www.canadianprisonlaw.com/ccra/inmates.htm) which looks at among other things prisoner treatment, solitary confinement, and strip searches. I've included one court case where a prisoner brought a challenge under both the Corrections and Conditional Release Act, and the Canadian Charter. He challenged the use of restraints which are not permitted as a form of punishment, but to be used for inmate or staff safety only.
• Issue of Restraint in MacPherson v. Regina

CCRA 68. Instruments of restraint - No person shall apply an instrument of restraint to an offender as punishment.

CCRA 69. Cruel treatment, etc - No person shall administer, instigate, consent to or acquiesce in any cruel, inhumane or degrading treatment or punishment of an offender.

Judicial Consideration:

MacPherson v. R - (1996), 106 C.C.C. (3d) 271, 48 C.R. (4th) 122, 177 N.B.R. (2d) 1, [1996] N.B.J. No.182 (N.B.Q.B.T.D.)

A prisoner in a provincial jail was granted a habeas corpus application where a court found that he was the victim of the use of unreasonable and excessive force and illegal actions by jail guards. Videotape evidence revealed that while occupying a bare cell, the prisoner repeatedly kicked his cell door in an attempt to get the attention of the guard to allow him to call a lawyer. Several guards then strapped the prisoner for two to three hours face down onto a stretcher and placed a hockey helmet and wire mask over his head. The court found that the prisoner was strapped to the stretcher as punishment for creating a disturbance, rather than for reasons of his own protection or protection of others. It was held that he was a victim of cruel and unusual treatment and arbitrary detention in violation of his rights under s12 and s9 of the Charter. The court then asserted that if M were a federal prisoner subject to the CCRA, the way he was mistreated would also invite consideration of s68 and s69 of that Act.