CAT/C/21/D/67/1997
page 5
exhausted, either because the authors are the parties in the pending
application for judicial review, or because the authors could have brought a
similar application before a domestic court.
4.3
In response to the allegations of the authors that the available
domestic remedies do not comply with the requirement of the Convention that a
prompt and impartial investigation of any occurrence of torture be undertaken,
the State party draws the attention of the Committee to the fact that the
coroner's inquiry into the death of Mr. Akhimien was held within five months
after the death and that the allegation is therefore unfounded. The State
party further submits that the authors' arguments must be disregarded since
the authors do not substantiate or explain in what manner the existing
domestic remedies are unreasonably prolonged or in what way the authors would
be prejudiced.
4.4
The State party also submits that its Criminal Code as amended prohibits
acts of torture committed by officials, such as peace officers, public
officers or persons acting at the instigation of, or with the consent or
acquiescence of such persons. Furthermore, the Criminal Code prohibits such
acts as assault, both with or without bodily harm, causing bodily harm with
intent to wound or to endanger life, and intimidation. The authors of the
communication could thus have asked that criminal charges be brought against
the individuals who allegedly inflicted an act of torture on Mr. Akhimien, but
no such action has been taken.
4.5
As to the question of compensation, the State party further states that
the Crown Liability and Proceedings Act and the common law permit persons to
sue public officers and/or the Government. The Government is responsible for
any liability, compensation or damages assessed on account of the improper and
unreasonable acts of its employees. The State party underlines that redress
is available in the civil courts in respect of acts amounting to the tort of
negligence, assault or battery. Such redress is available notwithstanding
that the same acts may constitute a criminal offence and whether the accused
was convicted or acquitted at trial.
4.6
The State party recalls that on 24 September 1996 the authors initiated
an action before the Ontario Divisional Court to sue the Government, pursuant
to the common law tort of negligence, for wrongful death and for violations of
the Canadian Charter of Rights and Freedoms, section 12 of which states that
everyone has the right not to be subjected to any cruel and unusual treatment
or punishment. The case is still pending and the State party maintains that
the authors have not exhausted domestic remedies in this respect.
4.7
According to the State party, article 14 of the Convention does not
require a particular or specific legal qualification that an act constitutes
an “act of torture” but requires that the legal system allows for
compensation to be paid to the dependants of the victim. If the Government's
liability with respect to the death of Mr. Akhimien is established, a fair and
equitable compensation may be awarded to his dependants. The State party
submits that, consequently, provision has been made in its domestic law for
victims of torture to seek redress and fair and adequate compensation. It is
the submission of the State party that the redress provided for in national
law satisfies the requirements of article 14 of the Convention.