The Immigration and Refugee Protection Act and the International Definition of Torture
35 Immigration Law Review (3d) 59, 2004
14 Pages Posted: 16 Jul 2013
Date Written: 2004
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 sub-paragraph 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 sub-paragraph 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.
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