La Loi sur l’immigration et la protection des réfugiés et la définition internationale de la torture (The Immigration and Refugee Protection Act and the International Definition of Torture)

Revue Générale de Droit, Vol. 34, pp. 587-610, 2004

24 Pages Posted: 11 Apr 2011 Last revised: 27 Jul 2013

See all articles by Nicole LaViolette

Nicole LaViolette

University of Ottawa - Faculty of Law

Date Written: 2004

Abstract

Enacted on June 28, 2002, the Immigration and Refugee Protection Act, which refers explicitly to Article 1 of the Convention against Torture, extends protection to a new category of persons, namely, “person in need of protection.” This article discusses how the courts will interpret subparagraph 97(1)a) of the Act when determining whether a person is a “person in need of protection” as defined by the Act. The author suggests that the inclusion of the subparagraph in question constitutes a direct implementation of the principle precluding the return of a person who faces the risk of being tortured to his or her country of origin. Through a brief overview of the principles governing the integration of international law into Canadian domestic law, the author argues that the Courts have an obligation to interpret the word “torture” in accordance with the Convention and the international definition of the word. The author then proceeds to circumscribe the breadth of the international definition of torture by examining each of the constituent elements of the concept: the conduct, the intention of the offender and the purpose of the conduct, the identity of the offender and the exclusions. In doing so, she assesses the interpretation which different international instruments, jurisprudence and external documents have attributed to these components, including the work of the Human Rights Committee and the Committee against Torture, as well as the jurisprudence of both the European and Inter-American Courts of Human Rights.

Suggested Citation

LaViolette, Nicole, La Loi sur l’immigration et la protection des réfugiés et la définition internationale de la torture (The Immigration and Refugee Protection Act and the International Definition of Torture) (2004). Revue Générale de Droit, Vol. 34, pp. 587-610, 2004, Available at SSRN: https://ssrn.com/abstract=1803798

Nicole LaViolette (Contact Author)

University of Ottawa - Faculty of Law ( email )

57 Louis Pasteur Street
Ottawa, Ontario K1N 6N5
Canada

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