Proceedings of the Standing Senate Committee on
Human Rights
Issue 4 - Evidence, November 5, 2001
OTTAWA, Monday, November 5, 2001
The Standing Senate Committee on Human Rights met this day at 3:05 p.m. to examine issues relating to human rights, and, inter alia, to review the machinery of government dealing with Canada's international and national human rights obligations.
Senator A. Raynell Andreychuk (Chairman) in the Chair.
[English]
The Chairman: This is the continuation of the study of the Standing Senate Committee on Human Rights, meeting on Monday, November 5 at 3:00 p.m. We are authorized to examine issues relating to human rights, and, inter alia, to review the machinery of government dealing with Canada's international and national human rights obligations.
We are grateful that Professor Errol Mendes from the Faculty of Law, University of Ottawa, who, I think spends his days in this area, has come to give us the benefit of his knowledge. I thank you for coming back a second time.
As you know, the last time some of us were shut out of the building and you were shut in the building. It was a crisis situation, so we had to adjourn until today. I thank you for making yourself available for the second time.
Without any further comments I will ask you to proceed with your brief. I am sure the senators will then have questions for you.
Professor Errol P. Mendes, Faculty of Law, University of Ottawa: It is a great honour to come before you to present my views on the role of your committee, especially in the aftermath of the events of September 11, which I will be addressing specifically.
In 1999, Canada went through its five-year compliance review with the International Covenant on Economic, Social and Cultural Rights, (ICESCR) and the International Covenant on Civil and Political Rights, (ICCPR) in 1997. There was also a review of Canada's performance under the Convention on the Elimination of All Forms of Discrimination against Women, (CEDAW). While the Canadian government presented an overall good compliance record with all three conventions, NGOs and social activist groups presented a much more negative picture of Canada's compliance. In particular, they argued that there had been a deterioration of social equality and social programs in Canada that resulted in the violation of equality and other rights of disadvantaged groups in Canada. In its evaluation of Canada's record under these three conventions, there was a tendency by the treaty bodies doing the evaluation to agree with the critique of the NGOs and social activists. You have heard this evidence from other witnesses, so I will not dwell on it.
My presentation will not deal with the substance of these positions either but, rather, with the particular statement of the Human Rights Committee. In its evaluation of Canada's compliance under the ICCPR, the committee noted the lack of equivalence between the protections under that convention and those available under the Canadian Charter of Rights and Freedoms and other human rights legislation in Canada. It further recommended that consideration be given to the establishment of a public body responsible for overseeing implementation of the covenant and for reporting any deficiencies.
Some members of the Canadian government, NGOs, social activist groups and individuals have argued that the public body that could oversee such compliance with international human rights treaties should be part of an expanded mandate of the Canadian Human Rights Commission. They point in support of such an extension of the mandate to the 1991 Paris principles, adopted at a UN-sponsored meeting of national human rights institutions. These principles support as broad a mandate as possible for such national human rights institutions including the mandate to promote and ensure the harmonization of national legislation, regulations and practices with international human rights instruments, to which the state is a party, and their effective implementation.
[Translation]
A powerful critique of such a recommendation is that the Canadian Human Rights Commission is already overburdened with its existing mandate, and both internal investigations and that done by the Auditor General of Canada have found some serious problems with the Commission fulfilling its present anti-discrimination mandate. Another powerful critique could be the omission of any proposal to give Parliament, including the Senate of Canada, a role in overseeing Canada's compliance with its international human rights obligations.
I think there is a powerful democratic argument for such a role.
[English]
The present system has permitted civil society groups to influence the deliberations and recommendations of many of the treaty bodies that deal with human rights. This is a development to be applauded and will go some way to ensure the accountability on the part of governments who are reporting their progress on the implementation of human rights treaties. However, civil society groups will also have to deal with a challenge themselves. There are increasing concerns about how democratic and representative these groups are themselves. Do they speak only for their members or special interests, or can they legitimately claim to speak on behalf of civil society, domestically or internationally? A response to the challenge regarding the democratic nature of NGOs and whom they represent is that over time the credibility or lack thereof of NGOs gets tested by their own constituents and by their own actions and activities. For example, not many would dispute the legitimacy of Amnesty International to participate in reviewing compliance with the International Covenant on Civil and Political Rights.
However, another answer to this democratic deficit challenge, both on the part of government and NGOs as regards the implementation of Canada's human rights obligations, is to reinforce the role of the Canadian Parliament in scrutinizing implementation of Canada's legal obligations. I have a precise suggestion based on the British model in the mother of parliaments, which may become even more critical since the horror of September 11, 2001.
Since coming into effect on October 2, 2000, the Human Rights Act, 1998, of Great Britain, which implements the European Convention on Human Rights in the United Kingdom, the British Parliament has been obligated to set up a joint committee of the House of Lords and Commons to scrutinize legislation to ascertain whether there will be any conflict with the act and the European Convention on Human Rights. If the view of the joint committee is that there may be conflicts, the government can either address the concerns or ignore them. If they choose to ignore them, then the final judgment of who is right will be decided upon in the courts.
This joint committee is preparing for a heavy workload as Britain responds legislatively to the new terrorist threat that it faces both at home and as part of the international effort to combat the merchants and financiers of such terrorism. Tougher police powers to detain and interrogate suspects are being contemplated in Britain. Some are suggesting that the Human Rights Act be amended to allow for these new security measures. Ministers developing such security measures must first examine whether they are compatible with the act under the provisions of the Human Rights Act itself. The Attorney General may also consult further opinions from the bar.
The act has borrowed from our Canadian Charter of Rights and Freedoms, and, in particular section 1, which requires that legislation be proportionate and justified and properly tailored to meet the stated objectives as interpreted by previous court rulings. For example, the seven-day detention of a suspect under a magistrate's warrants under the Terrorism Act, 2000 has been justified under the Human Rights Act.
I discuss in my paper how the government may, if it wishes to do so, derogate from the provisions of the European Convention on Human Rights in accordance with the Human Rights Act.
Some may ask why is such a joint committee of both Houses of Parliament, based on the British model, be necessary in Canada? Why not leave it to the courts to decide? The answer lies in a dilemma that many judges and international lawyers know to be true, but do not often say. Human rights obligations of countries have great legal content but are not without their political content also. One of the reasons why this is true is because many countries have signed and ratified international human rights treaties but the actual record of these countries tells a different story. Let me give you some statistics.
In May of 2000, there were 144 ratifications to the Civil and Political Rights Covenant and 142 ratifications for the Economic, Social and Cultural Rights Covenant, many of them riddled with reservations. The human rights records of many of the ratifying countries showed the ratifications are observed more in the breach than in the observance. Therefore, a challenge for Canada is what precedents, practices and jurisprudence should be most persuasive in our courts and in our legislatures.
Our courts have already indicated, especially our Supreme Court of Canada, that we must take our international human rights obligations very seriously. You heard a great deal on this from other witnesses and I do not intend to go over the ground already covered. I wish to remind you that the Supreme Court has stated on many occasions that the Canadian Charter of Rights and Freedoms must be interpreted to provide protection at least at great as that afforded by similar provisions in human rights documents that Canada has ratified. You have heard testimony on this from other witnesses, including testimony on the Public Servants Relations Act case, the Slaight communications v. Davidson case, and, more recently, the Baker v. Canada case, which all confirmed that the Charter interpretation and applica tion of administrative of law must conform to Canada's interna tional human rights obligations.
In the Baker vs. Canada case, the court seemed to push the envelope even further, across the entire mandate of the judiciary in Canada, when they suggested that the values reflected in international human rights law could inform the contextual approach to statutory interpretation and judicial review.
If this is the case, then surely there is strong political argument to be made that the values of international human rights law should inform the contextual approach to law-making in the Parliament of Canada. The front line of this task could be and should be in committees such as this one.
The Supreme Court has also recently ruled in Canada v. Hudson that the multilateral environmental agreements and principles emanating from them, such as the precautionary principle, could be applicable in determining the scope of delegated authority of municipal governments in Canada. Should not the same be said about the impact of major international human rights treaties that Canada has signed and ratified?
You have also heard that, in the Irwin Toy decision, the Supreme Court did not rule out the possibility that section 7 of the Charter could include economic, social and cultural rights contained in the international covenant.
The implementation of economic, social and cultural rights is fraught with legal and political complexity. Even the covenant itself seems to admit this when it states that the state parties fundamental obligation under the covenant is the progressive realization of the rights enumerated in it, taking into account their present level of economic and social development.
How does Canada effectively implement the obligations of progressive implementation? Surely, the Canadian Parlia ment should have a say in what constitutes progressive imple mentation, or lack thereof, of such rights.
In addition, as other witnesses have informed you, of the dualist and federal nature of our Constitution complicates matters enormously.I am loathe to say any more in the presence of the authority in Canada on this - Senator Beaudoin - so I shall leave any further discussion of this to the acquired judicial professorial or senatorial knowledge of Senator Beaudoin.
The Supreme Court of Canada has indicated that it will not interpret the Charter in a vacuum. It will engage in a dialogue with Parliament that has been proposed by leading constitutional jurists in Canada, such as Dean Peter Hogg of Osgoode Hall Law School.
I suggest we do not really have an adequate dialogue at this moment. As one Department of Justice official confided, what takes place is not really a dialogue between the Supreme Court and Parliament but between some Department of Justice officials and the court.
After September 11, 2001, greater attention must be paid to how human rights issues are dealt with in Parliament. There is much at stake, particularly finding the right balance between legitimate security concerns and the fundamental values of Canadian society and also the country's international legal obligations. A sophisticated and consistent dialogue is needed on these critical issues of the day by Parliament, and the courts can join in when the need arises to create an effective system of human rights protection in dangerous times.
[Translation]
I suggest that one method of improving the quality of the dialogue would be to set up a Joint House-Senate Committee on Human Rights to review the compatibility of legislation, especially in the area of new security measures, with the Canadian Charter of Rights and Freedoms and Canada's international human rights obligations.
It is readily acknowledged that given the urgency of some of these measures, committee processes will have to be efficient and time sensitive.
[English]
I note that the Senate did show how fast it could work with the ad hoc committee that reported before the justice committee on human rights on Bill C-36. It shows you can certainly move fast when you want to.
I suggest that such a joint committee can also be tasked with reviewing the five-year reports of the Government of Canada to the treaty bodies before they are sent to the bodies. Hearings could take place on such reports. One of the key benefits of such a process would be to hear and incorporate, through the committee, the civil society perspective on Canada's compliance with its international human rights obligations and to pass on such perspectives to the treaty body.
All institutions must adapt to a changed world sinceSeptember 11, 2001. This committee should have a crucial part to play in how well we all adapt.
Senator Beaudoin: We have discussed the implementation of treaties. We discovered that we are in a difficult situation because not many countries have the dualistic theory besides the United Kingdom and perhaps a few others. We learned that the British are interested to have a formula for the implementation. That is what I would like to know from you.
It is time for Canada to find its own formula for the implementation of treaties? We sign treaties but we do not implement them with legislation.
I raised this problem in Bill C-7 inter alia. My impression was that some departments of the government do not exactly have the same idea. To me, implementing a treaty means to enact a bill giving effect to our obligations under the treaty. That is what I call implementation by legislation.
The answer that I have received is that our Constitution and the Canadian Charter of Rights and Freedoms already comply with our international obligations. That to me is not a definitive answer. I believe that we must legislate so I raised the problem again. The Minister of Justice said that she will refer that to the Minister of Foreign Affairs, Mr. Manley, and I am very glad that was decided.
I feel that we should find our own formula for implementation of treaties. We have a moral obligation to give effect to these treaties. Hopefully one day the Supreme Court will say that we have a constitutional obligation to implement.
Have you found a magical answer to that problem? If so, I will listen to you very carefully.
Mr. Mendes: Senator, if I do find a magical answer we will have to co-write another book together.
I should admit that Senator Beaudoin and I are co-editors of a book on the Charter of Rights and Freedoms.
I will not go over the same answers given by some of the previous witnesses on our constitutional problems with division of powers. You are very familiar with those. Rather I will give a more "real world" picture of the challenges and obstacles that we are facing.
Canada is party to approximately 400 human rights treaties. We would not be members if there were not some obligation to actually implement those treaties by legislation. The response from many officials has been that Canada is a champion of human rights, that we already have the Charter of Rights and Freedoms, that we already have human rights legislation in each province and at the federal level, and that we do not need an actual bill saying that this is the legislation to implement such-and-such a human rights treaty.
That has been the attitude of successive governments for the past 20 or 30 years, perhaps even longer.
What happens in practice? As you well know, sometimes this attitude is ignored in actual litigation. Some justice counsels have commented that they have not implemented that act, so therefore it is only at the level of a ratified treaty and does not trigger any legal obligation because it has not been incorporated into domestic legislation.
The potential magic solution or potential bullet that could happen in the future is the whole notion of estoppel. If at one level you have said, after you have ratified the treaty, that you have legislation which implements it, and if a few years later on you say that we actually do not have legislation to implement it so you cannot regard it as a binding legal obligation, the legal concept of estoppel might apply. It is very common in common law, and I have taken civil law courses but I am not sure whether it is there in civil law, but I would be surprised if it was not.
Senator Beaudoin: It is not the same thing in civil law.
Mr. Mendes: One could potentially argue a form of constitu tional estoppel if one could find the documentation that clearly indicates that. Perhaps at some stage in the future the Supreme Court of Canada may move towards that. It certainly is nowhere near that. The most progressive interpretation we have is the Baker case where they state that even if the treaty has not been implemented by legislation, there is certainly a duty to take it into account, even in an administrative law setting, which is very progressive.
Senator Beaudoin: Is this a moral or legal question?
Mr. Mendes: That is a very good question. That depends on the view of the judge. Some judges have dismissed unimplem ented treaties; others have taken them seriously. I think it very much depends on the judge, but there is a strong argument to be made that judges should regard it as a legal obligation. After Baker, that argument has been enhanced, so there is a real problem here.
You mentioned the British system. I noticed that previous witnesses have referred to the British system. We should have a caveat in terms of whether we follow the British system completely because the courts do not have as much power under the Human Rights Act of 1999 as they do under our Charter of Rights and Freedoms. The most they can do is issue what is called a certificate of incompatibility to the Parliament, and it is then up to the Parliament to decide whether or not to follows it. There is no power of full judicial review as we have in this country, which includes the ability to declare legislation ultra vires. We should be careful about not wanting to follow the British model too closely.
Within their idea of a certificate of incompatibility is this notion of estoppel. Essentially, if you have signed the European Convention of Human Rights and you have enacted a human rights act, and you now have legislation which is incompatible with that, you are served notice that you have a kind of a breach of promise here. That is the certificate of incompatibility. That could be one of the possibilities.
On the other hand, when it comes to your notice that this kind of estoppel situation has arisen, you could call witnesses before you to explain how they can justify that contradiction or that estoppel. That could be another part of your watchdog role as a committee. I hope that provides a sufficient basis.
The Chairman: It seems to me the United Nations machinery has been moving more to force countries to live by their international obligations. More and more, I read where they have said, "If you sign an agreement, you of course are then not bound by it, but you are bound not to work against it, and in ratification you are bound to give it some effect."
Have you done any analysis as to whether there is this movement within the United Nations internationally to push the envelope on this?
Mr. Mendes: Frankly, I am more optimistic on what domestic courts can do than what the UN can do. I do not know whether you had Professor Bayefsky before you as a witness. She paints a dismal picture of the record of effectiveness of some UN machinery in terms of what they say, and what actually happens in practice, concerning individual countries living up to their human rights obligations. In fact, her conclusion is that many of these international human rights treaties are become non-function ing for many of these countries. If all the ratifications were real, we would be living in a completely different world. I place more hope in our domestic courts and our society than on the United Nations.
Senator Beaudoin: The Supreme Court of Canada may rely on the treaty itself, or the obligations of the treaties, and rule as a consequence. In other words, the principle of the treaty will be mandatory by virtue of the interpretation of the Supreme Court itself. The Supreme Court may consider itself bound by principle of international law or by a principle involved in the treaty and therefore oblige a country like Canada to comply with a treaty. What do you think of that?
Mr. Mendes: After the Reference re Secession of Quebec case, I think anything is possible in the Supreme Court of Canada. That is not a criticism of the court. I think the decision is wonderful. In essence, what you are saying could be possible within the framework of the case. The Supreme Court said where there are gaps in the text of the Constitution the foundational principles that they enunciated could fill those gaps. They enunciated four foundational principles; however, they did not say those four foundational principles were exhaustive. There could be evolution of another foundational principle: that Canada lives up to its ratified treaty obligations as a foundational principle of our Constitution. If there is text which covers that, that is more dubious. Everyone has suggested that the principles can be used for anything and everything. I certainly do not agree with that. If you look at the judgment carefully, it talks about the principles only being used to fill in the gaps of the Constitution.
Senator Wilson: I do not think any group claims to represent civil society as a whole, but there are special interest groups, for example, that do not want single mothers to have to pay more than 50 per cent of their money for rent under the economic, social and cultural rights. I am just questioning the use of special interest groups.
Mr. Mendes: It is not my comment; that is the criticism that is used.
Senator Wilson: It floats all over the place. That is why I object.
Mr. Mendes: I am objecting to that, too.
Senator Wilson: Whomever they represent, they usually make a very significant contribution.
Mr. Mendes: It is a critique of the use of that by stating that. No one can claim that Amnesty International is a special interest group because, through their credibility, they can speak with legitimacy. However, can you say the same about some of the anti-globalization people?
Senator Wilson: I am speaking about the groups that the economic, social and cultural rights, which are not nearly as established as Amnesty. It is much harder to get credibility in that area, and I am not prepared to write them off.
Mr. Mendes: Over time they will prove they have credibility as much as anyone else, so my statement there is actually a critique of those who criticize them.
Senator Wilson: It seems to me we are talking about two things. First is monitoring the current legislation in terms of whether it conforms to the treaties. It is interesting that in my short three years in the Senate I see that interest growing and individual senators questioning whether the legislation conforms. For example, in respect to Bill C-7 there were questions raised by senators as to whether that legislation conformed to the United Nations International Convention on the Rights of the Child.
I wonder if one way to do the monitoring is simply to raise the bar in terms of the information that senators have so that they can raise those questions as they come along. It is a better approach than some special committee that has to stay on top of all the legislation, which none of us can do.
Your suggest that there be a joint parliamentary committee to look at the "before" submission to the UN; I think the "after" submission is equally important.
Mr. Mendes: Absolutely.
Senator Wilson: I have some trouble with that because the House of Commons has a different rhythm to the Senate, and if every five years they are out on another election you lose any continuity of information. I do not know whether a joint committee is the way to go. I support a dialogue or some mechanism to have Parliament involved in that, both in the before and after stages with the UN, but I am not sure a joint committee is the best way to go about it.
Mr. Mendes: I mentioned the joint committee in the context particularly of the balancing of security versus human rights, which I think is critical at this time. There is a need for some type of joint examination. In some respects the Senate has already done that by what happened last week, so you have actually shown a form of joint review of that piece of legislation. Whether it is necessary to have it for the compliance reviews I agree with you, it may not be as necessary.
There should be a part of Parliament that looks at those reports before they are released and then afterwards looks at the observations of the treaty bodies.
Senator Wilson: I support that, but is there be a better mechanism than a joint committee?
Mr. Mendes: If it is only a single Senate committee or a House committee or both doing their own thing that is fine too, but there is a theoretical component behind what I am saying. I am concerned about what is the "public interest." It is a large philosophical question.
In many Western democracies the public interest is fragmenting into the "public interests" where you have fragmentation of the general will. I see Parliament's role as critical in bringing back the "public interest" into the mix. That is why it is important, either for the Senate or the other place, to do this sort of examination of the different perspectives.
Senator Wilson: I will agree with that. The Senate is particularly well placed to do that because we have some continuity and some historical memory.
Senator Joyal: It is a pleasure to have an opportunity to exchange views with you, Professor Mendes. In our work in the Senate each committee has a specific duty to study each and every piece of legislation concerning the committee before us. There are angles that are our constitutional duty to check. Among them are, the fundamental structuring principles of our country. The Supreme Court has been detailed in their definition and their implementation. For instance, the court says that everything that deals with federalism has an important aspect. When we have legislation we have to ask ourselves what impact it will have on federalism.
I will give you three examples. We had Bill C-7, Bill C-36 and Bill C-11. Immigration is a concurrent jurisdiction, so it touches federalism in its heart. It has a specific provision to our constitution. Federalism is an important principle. Constitutional ism is an important principle and, of course, minority rights. We have to pay specific attention to the impact on both linguistic communities in Canada, as much as we have to pay attention to the Aboriginal conditions and to multicultural groups. Those are unavoidable checks that we have to question when we study legislation. I do not mean that all of the committees are going about their work in the proper way. That is why we now have a committee studying the issue; nevertheless, each one in every committee has this role.
I think Parliament, and specifically the Senate, has a role to play in keeping the issue of human rights on the political agenda. I do not think it is enough to deal with it on a piecemeal basis according to legislation.
During the last 20 years we have been dealing with human rights in the piecemeal approach. My personal involvement as a minister of the Crown was to try to understand the fundamental trends of evolution of human rights. If you want to know what is going on, you have to keep it on the agenda of Parliament as a daily issue. It is not possible to do that considering the legislation, reports, meetings and the level of interests that are competing in this place. However, there is not a specific body whose duty it is to maintain the level of awareness of the government and of Parliament on the issue of human rights.
We have the Human Rights Commission report each year. The Canadian Human Rights Commissioner is an officer of Parlia ment. He or she works for Parliament and not for the government. What has happened with the report? The way we deal with the report of the commissioner does not convince us that Parliament is assuming its responsibilities. There is a need to manage a political platform, a politically visible opportunity for the issue to remain at the top of Parliament's agenda.
My appreciation of human rights is not only for the national Parliament, but for the provinces as well. I do not personally put too much faith in société civile. What does it mean? It means everything and nothing. Nobody has the responsibility for the société civile. It is an automatic responsibility among a myriad of groups that come and go. Nobody really checks them. They might claim to represent 200,000 or they might claim to represent 200 people. We do not know. The only institutions that are representative of the people and are accountable to the people are the provincial legislatures and the national Parliament.
My perception is that if we do not manage a political forum, we leave the provincial legislatures off the hook in terms of their share of the international responsibility.
There is an important need for a national locus and the best locus is the Senate. To operate a joint committee is something like playing bingo card. Those of us who have been in joint committees know that the only permanent life in those commit tees are the senators who happen to have a personal dedication to the issues that are being debated.
My first conclusion from your presentation is the issue of a permanent standing committee on human rights in the Senate. I wonder if attaching the Senate to the long train of the House of Commons will enable us to put the train in motion or if it will stay at the station.
It is impossible to focus a national discussion on emerging rights if we do not have a political body that has continuity. It just been pointed out that environment may come under the concept of emerging rights. If we wish to maintain Canadians' awareness, this area must be addressed on a continuous basis. We must not let interest groups be the sole bearers of responsibility.
The only way to keep pressure on the system is to maintain a body within Parliament with that specific role and agenda. Continuity is the only guarantee of feasibility of the result. It is long overdue that Canada has a parliamentary body whose responsibility is devoted to human rights.
A poll published by the department of heritage asking Canadians to define their greatest attachment to the country showed that beyond the vastness of our landscape, our natural resources and the purity of our air, the majority of Canadians mentioned human rights and the Charter.
We may be embarking on a period of history where human rights will be more questioned for all kinds of other purposes.
Mr. Mendes: I profoundly agree with you. There is a theoretical component behind what I am presenting which reinforcing what are you saying. The nature of our democracy is at stake here. Citizens have the ability to express themselves democratically at the ballot box, but in between ballots there is little opportunity for them to express themselves in a way that allows them to contribute to the public interest.
Civil society is there, but it is fragmented. There is a dire need inside and outside Parliament to reconstitute what is the public interest. If the public interest is for Canada to champion human rights, we have an obligation and a duty. We have a duty to find those mechanisms, to allow the promotion of public interest in this area, and to create that general sense of democratic legitimacy in the range of areas that you deal with from young offenders and immigration issues to security and human rights. The plate is brimming over. Unless these issues are dealt with in a consistent fashion, I am afraid that society will become more complex and fragmented. There is a critical role for Parliament to play in making sure that does not happen.
[Translation]
Senator Losier-Cool: I would like to follow up on what Senator Joyal was saying at the various recommendations. Your recommendation regarding the creation of a Joint House of Commons/Senate Committee is not one that we, senators, could consider à this time.
[English]
We know that Parliament will react to public interest and public pressure. Everyone is talking about rights now. Sometimes we hear people saying there are too many rights.
[Translation]
People say there are too many rights. There are rights associated with responsibilities, minority rights, community rights, human rights and language rights.
In the Senate, I have taken on the role of educator. As an educator yourself, do you think the people of Canada could be better educated with respect to all the rights I have just listed? Are Canadians in fact adequately informed of human rights issues?
[English]
Mr. Mendes: Senator, your question is complex, but so is the area of human rights. There is a great need for more public education in the area of human rights.
Let me point out some dangers, though. The area is becoming so complex. We are parties to over 400 treaties. If you were just to present the information, you would overwhelm people. There was a poll done on the Charter of Rights and Freedoms where there is huge public approval of the Charter, but when asked what was in the Charter, some people responded by citing the first amendment. There is immense sentiment for human rights, but how is that knowledge passed on?
Outside the university context, I try to focus on the root of human rights. The root of human rights is much simpler than we imagine. It is encompassed in the simple concept of human dignity. If we can promote that concept in our schools, our communities and our workplaces, that will allow people to establish the base from which to progress to the more difficult concepts. What is missing is the ability to communicate what is at the heart of this plethora of international human rights laws and treaties in a way that can grab people.
Everyone understands what human dignity is. I have yet to come across a person who does not understand what human dignity is.
Senator Losier-Cool: You really captured the essence of my question; the root of dignity and rights, not simply one right, specifically, but the whole.
Mr. Mendes: I find your question interesting because I do not think that in the reforms made by the Harris government to the curriculum in Ontario there was any mention of human rights education. This goes back to Senator Joyal's point. How do we keep that on the agenda to ensure that there is that ability to influence the provinces in areas like school curricula, youth justice and a whole range of other areas where the temptation is to go for the efficient rather than the human dignity solution.
The Chairman: Perhaps there would be a role for the Senate to talk about public interest and to be ahead on informing about emerging human rights issues. In your paper you mentioned proportionality as one of the keys.
First we saw human rights, then we saw human rights and trade, and now we are seeing human rights and certain social issues. Are you saying that proportionality is your way of attacking how we weigh security and human rights? It seems to me that moves us into a second phase of human rights in Canada. The first was to acknowledge them, to receive them and to understand some of the fundamentals. We are now moving into phase two. Is that what you were pointing out?
Mr. Mendes: Yes. The core of my presentation to the House of Commons Justice Committee tomorrow on Bill C-36 will be that the overarching yardstick is not a question of balancing security and human rights, but whether proportionality has been achieved in the provisions of Bill C-36. I note that some of that is already in the report of the Senate, so I think I am on safe ground.
With human rights there are the high visions and ideals like human dignity, but the devil is in the details, and the details can be focused on and examined through concepts such as proportion ality. The basic challenge before us in these dangerous times is how to achieve that fairness and justice in the area of security in human rights.
Senator Tunney: On page two of your brief you say:
However, civil society groups will also have to deal with one major challenge themselves. There are increasing concerns about how democratic and representative these groups are themselves.I am concerned that special interests may have competing opportunities or contradictory opportunities to inject their view of human rights into Canadian or international civil rights legisla tion.
Do you understand what I am saying?
Mr. Mendes: Yes, and it is part of the democratic nature of our society that groups will propose and it is up to the Parliament of Canada whether those propositions are acceptable. That is basically how we created many of the provisions of our Charter. Through lobbying by various groups, provisions were proposed. That is part of the democratic nature of how we pass legislation and constitutional amendments.
Behind your question is an issue that we are not discussing, which is one of the reasons I included that sentence. The issue we are not discussing is who represents the public interest and how do we ensure that the public interest is not lost in the fragmentation of different viewpoints and perspectives.
I come back to the role of Parliament, to ensure that that is one of your critical functions.
Senator Tunney: I live in Ontario and over the last five or six years I have witnessed the diminution of some human rights in favour of the aims of big business, international interests and international trade.
Mr. Mendes: Some people say that Chapter 11 of NAFTA could be an example of what you are talking about. There is a serious debate about that in this country. I gather that discussions are going on even at the highest levels of government on that issue. If that is an example of what you are suggesting, there is a real debate going on about some of those issues.
Senator Tunney: One of the issues I had in mind was Chapter 11. Thank you.
Senator Taylor: Professor Mendes, you made the interesting statement that human rights is no more than recognizing the dignity of the individual. You mentioned that it should be taught in our schools.
Bearing in mind that education of children is one of the best ways to entrench human rights, have there been any surveys done on awareness of human rights by children educated in public schools versus religious schools?
Mr. Mendes: That is an interesting question, Senator Taylor. Obviously religious schools, by their very nature, will teach spiritual values and morality in some form. I would presume that most religions have at their core a sense of spiritual value and morality. I know that most of the major religions in the world completely accept that the fundamental concept of human dignity is indispensable to the human condition.
Your question is whether there could be a difference between religious schools and public schools. Other than in the social studies curriculum of public schools, I do know where human rights would be taught, and I am not sure that the social studies curriculum of many public schools would deal with those issues.
There is a gap. Perhaps it is the role of this committee to get educators to come before you to explain why there is that gap. That goes back to Senator Joyal's comment that there is a need for a committee to put the pressure on all the time to ensure these fundamental values are promoted in our society. Yours is a very interesting question, senator.
Senator Joyal: Professor Mendes, there is one thing in your brief that is important to stress. There is a fundamental difference between the British and Canadian systems. The difference is the following: We have constitutional protection and recognition of human rights; the British do not. That is because of simple legislation of their Parliament. Of course, being legislation of their Parliament, they recognize it as a parliamentary instrument. Our protection is constitutionalized. Our reaction is when something is constitutionalized we leave the responsibility of its implementa tion the courts. That is the way we have dealt with the Charter of Rights and Freedoms for the last 20 years. As a result, there are more than 457 judgments and rulings involving human rights. We read those judgments and we try to understand the scope and the implication of those constitutional rights. We tend to presume that the tabled legislation is certified by the Minister of Justice and is in compliance with the Charter. Since it is in compliance, the presumption is that it is valid.
In last few years we have been re-questioning that presumption during our examinations of the implication that those pieces of legislations are in conformity with the Charter. I think it is important that the trend continue and be developed within the parliamentary procedure. This is where I feel there is a link between what we can learn from the British system and what we do as parliamentarians. This is valid as much for the Senate as it is for the other place.
Perhaps tomorrow you will have an opportunity to discuss the anti-terrorism bill. If you read the report that the Senate tabled last week concerning the human rights implications of Bill C-36, you will understand how important it is that a bill that was supposed to have been developed by the Department of Justice with a close scrutiny of each and every paragraph of the Charter, might need to redefine the principle of proportionality between how to adjudicate between human rights and the need for security.
It is important that aspect be very well outlined and understood by Canadians. I say that because we are trying to change something that we have been doing for the last 20 years and we might not have produced the results that we wanted to produce.
Mr. Mendes: Senator Joyal, I agree with you again. At the risk of pre-empting my presentation tomorrow, I think that a review after only three years is insufficient and that there should be annual reviews of Bill C-36, by the Commons, the Senate and, perhaps, by a joint committee. Immense damage could be done within a short space of time.
It is absolutely critical to focus on proportionality in the abstract but also in reality so as to consider what has happened after six months or a year. In fact, the idea of proportionality can be traced all the way back to Aristotle. In a way, Aristotle's theory shows how important it is. His view was you only get it right the more you debate. You only get it right the more you examine the issue not just in abstract, but also in reality. Of course, that is where he disagreed with his friend Plato.
Where it is critical is that the Department of Justice has its own set of imperatives that may or may not affect its analysis of proportionality. You have your own set of imperatives that, perhaps, represent a more permanent and lasting set of public interest imperatives. The Senate is able examine proportionality not just in the abstract but in reality, too. That is why I am arguing for either a joint committee or a Senate committee and a House of Commons committee to review on an annual basis the balance between security and human rights, to check not just compatibility with the Charter but also with international human rights obligations, many of which are implicated in that bill.
Senator Wilson: I have just a short comment about the education process. My invitations to speak on human rights in high schools have always been from alternative schools, not religious or mainstream schools. I think that is an interesting thing to look at.
My other comment is that, at this point, the focus of this committee should be the self-educating of parliamentarians, not telling everyone in the schools what they should be doing. In terms of priorities, we need to look at parliamentarians and our own level of knowledge.
The Chairman: Thank you, Professor Mendes, for coming a second time to appear before the committee. You have certainly stimulated debate. You have given us some alternatives to the terms of reference that this committee will be embarking on.
I also understand that one cannot speak today without making reference to Bill C-36. I thank you for your perspectives on that measure. We will, of course, be looking at a more broad and general outlook. However, that particular issue is current and instructive to us. The next time you appear I hope we can proceed without interruption.
Mr. Mendes: Thank you, senators.
The Chairman: We will now turn to Mr. Philippe LeBlanc.
Mr. LeBlanc, I wish to welcome you to the committee and to express our regrets that you had to make a second trip. As I indicated to our first witness, circumstances beyond our control kept us from hearing you at that time. It was a sign of our times that we had to cancel that meeting. We are very delighted that you were able to find the time to come back to speak to us.
I know of your long-standing association with the United Nations Commission on Human Rights in Geneva. I presume that you will speak a bit about that and anything else that will help us in our study on human rights.
Please proceed.
Mr. Philippe LeBlanc, Permanent Delegate of the Domini can Order at the UN Commission on Human Rights in Geneva: Madam Chair, I appreciate coming back to Ottawa. I lived here in the 1970s and the 1980s so it is good to come back to see the changes.
Madam Chair, I have been asked by the clerk of this committee to focus on explaining the functioning of the UN human rights machinery and exploring developments and concerns relating to it.
I taught this course at the International Institute in Strasbourg and did it in one week. Today, I will have only 15 minutes to present the course so I will focus on one key mechanism; the UN Commission on Human Rights. I have chosen that because of Canada's role on that commission and the changes that are now happening within it.
There are three key bodies in the human rights mechanism. One is the office of the High Commissioner for Human Rights or the actual function of the High Commissioner for Human Rights, the Commission on Human Rights, and the Sub-commission on Promotion and Protection of Human Rights. I believe the commission is key. Around those three bodies you will find a number of other mechanisms.
I intend to suggest ways in which the Senate committee can somehow serve as a monitor or play a role in what happens at the commission. The UN Commission on Human Rights and Canada's role in it is one of the best-kept secrets in this country. Many people do not know about the commission and do not know the role that the Canadian government plays in it.
My first time at the UN Commission on Human Rights was in 1975, when I represented Canada as its lone observer member.
I also attended in the 1980s, when I was at the International Institute of Human Rights. I have been attending the annual session of the commission for the past six years. I also attend the Sub-commission on the Promotion and Protection of Human Rights.
The UN Commission on Human Rights is the highest international forum for dealing with human rights violations by states. It is mandated with the responsibility for the universal protection of human rights. Sessions are held in Geneva. They are held in the two months of March and April. Senator Wilson has been present. She was a former chair and Canada's representative of the commission. Special sessions are called; one was called concerning the situation in Kosovo in 1999, and one was called on the Intifada in October 2000.
The commission consists of 53 elected member states, represented by their governments, who come together to deal with these violations. The membership of the commission is drawn from the different regions of the world. There are 15 members from Africa; 12 from Asia; five from Eastern Europe; 11 from Latin America and the Caribbean; and 10 from WEOG, Western European and others Group. We are bunched in with the WEOG that includes Japan, United States, Australia and New Zealand.
Canada was elected to serve in the 1960s, and served from 1963-65. At that time Canada did not give an impressive demonstration of commitment to human rights. They rarely intervened. They did some interventions, but they were always stymied because of the federal-provincial relations: the shared jurisdiction. They could not participate fully.
Canada was re-elected in 1975 and began serving in 1976, and served until 1984. For two terms they were not on the commission, but they have been on it ever since. I am not sure if you, Madam Chair, had a role in the commission, but certainly Canada has been very involved in it.
When Canada was elected in 1975, I was director of the Human Rights Program for the Government of Canada. I returned under the Secretary of State at the time. Senator Joyal was my boss in the 1980s.
I want to discuss 1975 because there were two events that occurred in that year: The first federal-provincial conference of human rights took place, and we were elected to theUN commission. As the person responsible for human rights at that time I can say that human rights was not a high priority. It was down on the list of priorities; there was not a culture of human rights at that time.
Interestingly enough, our election to the commission and our ratification of the covenants coincided with a new American President who, in 1977, began his presidency by mentioning human rights 16 times. One of his many accomplishments was to place human rights on the international agenda.
We hitchhiked, as we often do, on American successes. We became involved in this international world at a moment when human rights were becoming part of the international agenda because a President had decided that this would be an important part of his mandate.
We will always talk about September 11. However, I will argue that the role of the UN Commission on Human Rights will be central in focusing on the human rights aspects on the war on terrorism. That is not happening within the Security Council because it is not their mandate. When Kosovo was being bombed the High Commissioner reported weekly on the human rights aspects of the bombings and the effects on the people in Kosovo. The same was true during the time of the Intifada, when a special session was convened for that particular issue.
For the first time ever, the U.S. was not elected to the commission. People said that Sudan was elected and not the United States. I made the point that countries are elected by region. The United States was not defeated by any one country; it was defeated by the European countries who elected Sweden and Austria and other countries instead of the United States.
For the 2002 session, Canada will be the only non-European country from the Western and others Group serving on the commission. Its role becomes pivotal when you consider that the United States is not a member of the commission. The U.S. will play a role on the sidelines but not on the commission itself.
Here is my assessment of the past three years concerning the role of Canada on the commission. For the last three years, there has not been an ambassadorial level representative at the commission. That may seem insignificant, but it is important because all members are headed by ambassadorial-level persons. Therefore, Ross was vice-chair but was never elected chair. You would not elect someone who was not an ambassador.
At this year's commission, Canada was represented by the deputy permanent representative of Canada's permanent mission at the UN in Geneva.
There are two ambassadors. Marie Gervais-Vidricaire did a wonderful job but she was an ambassador. Sergio Marchi is a permanent representative and Christopher Westall is a substitute permanent representative in Geneva.
I suggest that the Senate committee look at the need for a representative at the ambassador level to head next year's delegation.
I have read all of your interventions and the interventions on your Web site. You have a very good site.
I know what Adele Dion said. She is now ambassador to Finland and the whole department has changed.
This will be extremely controversial. The sparks will fly. There is no question that this is an important time. We will be playing this role and we need a strong person. I am not certain what influence you have in terms of those kinds of appointments but next year the commission will be very important.
Many government positions at the commission are being developed at this time in preparation for the General assembly. It is important to have input.
I noticed from the interventions of Foreign Affairs that they gave you a good presentation but not about the issues that they will be dealing with at the General Assembly and then at the commission. I believe you need to be informed. I am informed because I am there all the time.
Each February, for the past 15 years or so, the Department of Foreign Affairs convenes a major consultation with NGOs and others that lasts four days. Perhaps someone from your committee could attend that consultation where Foreign Affairs will provide us with written statements on their positions on countries and on themes.
Attendance there is one way of introducing yourself to this very important commission which hides away, as you know, in a very nice location in Geneva on the other side of the river. Major decisions affecting the lives of people around the world are being made there.
The polarization of the commission can only increase. The issue of human rights is probably the most political one faced by the international community because human rights represent the principles and obligations guiding the relationships between states and their citizens. The commission is where part of that relationship is mediated because the countries are present. Therefore, the failures and the shortcomings of the commission cannot be dismissed lightly with the statement that it is too "politicized." Since the subject of debate is people who are tortured and whose lives are in jeopardy the stakes are high at the commission. It is important to remember that this is not a treaty body that reviews country reports. The commission is made up of member states, the key players, who discuss the lives of the victims whose human rights are being violated.
The work of the UN commission can be disconcerting and disappointing to many victims. It is not sufficient for parliamen tary delegates to sit in on the commission for a couple of days. It is necessary to spend time there to see just what is happening.
For the victims there is hope when some action is taken or when a debate at the UN commission endeavours to improve the human rights situation in a country under scrutiny. When action is taken, people are affected.
This is a passionate and complex subject, but I want to leave time for your questions.
The commission is highly politicised, and due to the recent events in the U.S., those politics will play themselves out even more.
The commission deals with issues from a thematic point of view and deals with the situation within the country under scrutiny. The thematic issues are torture and freedom of the judiciary. However, the situations themselves cause the most controversy.
My organization, the Dominicans for Justice and Peace, is present in 100 countries and has a membership of about 50,000. It was founded 900 years ago. Our focus is on countries where our order is directly involved in the struggle for human rights. We are working in Colombia, Mexico, Pakistan, Brazil, Rwanda, Burundi and are involved in the issue of the sanctions against Iraq. In thematic issues, we focus on Indian rights, indigenous rights, religious discrimination, children's rights and a number of other issues.
In my view, the role of NGOs at the commission is to speak the truth to the international community. If the commission was only made up of the 53 member states plus the 100 others they would spend their time complimenting each other and patting each on the back.
From Amnesty International to the Zairian Society for the Promotion of the Rights of Women, when we speak we speak the truth. We speak the truth from our own experience and from that of our members.
There are a number of reasons why the session in 2001 was polarized, including certainly the deterioration of the situation in the Middle East and the controversial drafting process of the declaration and the plan of action in the World Conference against Racism, in which I participated. It was a tremendous moment, in the history of human rights dealing with redress and compensa tion for people who had been victims of slavery. That was a powerful moment. Again, sparks flew and they kept flying in Durban but it all began in the commission three years ago and it will continue.
Canada's role at the commission has been low key at a time when it should be stronger. I can circulate my paper later where I list specific cases, including thematic economic issues.
Canada is now a member of the so-called Group of Five, with the U.S., Australia, New Zealand and Japan. In terms of voting, this trend was particularly evident on the right to development where Canada had opposed the paragraphs which called for the need to discuss a permanent follow-up mechanism for the right to development; the necessity to evaluate the impact of some specific international economic financial issue on the enjoyment of human rights; and the request for independent experts on the right to development.
These amendments were all defeated. Canada abstained from voting on a very key issue: the right to development, which is linked to economic, social and cultural rights.
Although Canada aligned itself with the consensus, Canada expressed reservation on the appointment of a special rapporteur on indigenous peoples, which I found strange because we have been on record as promoting this issue.
I have been reading the reports of your meetings, especially the discussion around the legal implementation of the treaties. You discussed that earlier this afternoon.
I coordinated the first federal-provincial conference on human rights in 1975. I negotiated with all the provinces and the federal departments. At that federal-provincial-territorial meeting, we were confronted by two issues. One province had not given its assent. The Province of Quebec had excellent reason for not giving its assent. The other issue was federal and provincial responsibilities and the implementation of human rights. Those were the key fundamental issues. We were not there to discuss the legal issues. The process of ratification began in 1969, and by 1975 it still had not been ratified it.
The 1975 conference achieved two goals. Quebec, agreed to bring the agreement to assent of cabinet. The comment was that it was the best federal-provincial conference they had ever attended, which was interesting because it was the provinces and the federal government working together to achieve a consensus. Also, there was the continuing committee to ensure the ongoing cooperation of responsibilities with provinces, and the modalities and mechanisms. Senator Kinsella mentioned that Tom Simons was the one who negotiated that. Actually, it was a subgroup that included the provinces of Quebec and Ontario. Tom was then chair of the Human Rights Commission of Ontario. He and three or four other people arrived at a consensus on how provinces would cooperate with the federal government and vice versa in implementing the treaties.
I find it refreshing and interesting that, 25 years later, we finally have come to the legal implications for implementation of the treaty. I regret that, over the past 25 years, this has not been on the table as forcefully as it is now. I believe that Senator Finestone suggested that a study be done on this. I would agree with that. Different models could be developed so that could be part of the debate. I think the discussions here would make a good beginning for a researcher who wants to make a good salary.
The Chairman: Thank you. Having served at the you have done very well to hit the highlights and the points that we need to know about how that process works.
I have heard that since the Security Council has started to deal with more human rights issues that the role of the UN commission is not as important as it once was. You seem to be saying the contrary.
Mr. LeBlanc: It certainly was at Kosovo. That has not a part of the mandate of the Security Council. It seems to me the commission is needed now, more than ever and it needs to be part of the grand discourse in the events that are happening right now. I did not mention the role of the High Commissioner for Human Rights, but Mary Robinson is very much involved in the discussions in New York and makes an interesting link between the commission and the Security Council and especially with the UN in New York.
The Chairman: You have been at the commission the last three years and said that -
Mr. LeBlanc: Six years.
The Chairman: The last three years you were saying that there are parliamentary groups that visit for two or three days. I recall they used to come for two weeks. They were members from all the political parties and not just parliamentarians from the majority party. They went to great length to ensure that the delegation be made up of all parties in Parliament. Is that still the case?
Mr. LeBlanc: That is my experience. My only comment was that in two or three days, when they are brought around to see all the other institutions, they rarely sit one day or even one hour at the commission. My concern is that they cannot fully experience what it is that the commission actually does and what its important function is. Yes, the visitors are usually multi-party. Senator Wilson was a member of the delegation at one time.
The Chairman: Can they only come through and look?
Senator Wilson: They do not stay long enough.
[Translation]
Senator Beaudoin: I would like to come back to the matter of treaty implementation. I am tempted to think that Canada will be forced to prove that it has a concrete mechanism for implement ing these treaties. Given your lengthy experience at the United Nations, do you think we could discuss this with other countries before actually developing a treaty implementation system?
Mr. LeBlanc: I, like others, believe this was primarily a political problem. In 1975, we certainly were not ready. There were a lot of other issues to tackle, such as the ones I mentioned. Studies carried out at the time by the Justice and Foreign Affairs Departments probably be of interest to you.
There is also the legislative aspect. So, there are two issues here. In light of the presentation made by Mr. Peter Leuprecht and his experience in Europe, my feeling is that some countries could provide assistance in this area. I learned a lot by reading his paper. Although I have never actually studied the issue, it made me aware of potential areas of future research.
Senator Beaudoin: Few countries are in a situation similar to Canada's. We adhere to the dualist theory, whereas most countries follow a monistic theory. We are unlucky, and they are lucky.
Mr. LeBlanc: Mr. Leuprecht referred to Germany, England and Switzerland, which are also founded on dualism. The Department of Canadian Heritage has already done a study on the system in Germany, and there may also be other studies available that deal with this same issue. The most important thing is the political component. In 1975, there was a political will to move forward and have these conventions ratified.
Senator Beaudoin: So what happened?
Mr. LeBlanc: They were ratified. The main issues of the day were resolved, but the question of how the treaties would actually be implemented from a legislative standpoint was never raised.
Senator Beaudoin: And yet, that is of crucial importance.
Mr. LeBlanc: Yes, which is why we have to come back to it now. I thought that once we had resolved the two main problems - obtaining the consent of the provinces and the Quebec issue - there would be a second stage to this process, which in fact never took place.
Senator Beaudoin: So, it's time to focus on that again.
Mr. LeBlanc: Yes, absolutely.
Senator Beaudoin: And you are counting on us to do that.
Mr. LeBlanc: Well, yes; this has been a very important debate. People should be made aware of it.
[English]
Senator Wilson: I understood you to say that Canada is only Western country on the U.N. Human Rights Commission.
Mr. LeBlanc: It is the only non-European country. That would be the U.S., New Zealand, Australia, Japan and Canada. All the others are European.
Senator Wilson: There is a need for somebody from Canada at the ambassadorial level in order to have any clout.
Mr. LeBlanc: We need a strong delegation, and not people who are just starting out. I do not think this is a place to start out at this juncture in our history. This is not for beginners.
Senator Wilson: What are the issues at the General Assembly that you do not think Foreign Affairs will raise?
Mr. LeBlanc: I think the overriding issue will be human rights violations. The veil will lift off Afghanistan. We will begin to see the devastation in the country. That issue will be extremely important.
The whole question of the legality of the action will certainly be brought up from a human rights perspective. The Security Council will deal with it from its own perspective. All of the issues surrounding Afghanistan will permeate the debate. As an NGO, I sit in the back row and I see everything. The debate will play itself out on the question of human rights.
There will be a powerful discussion and representatives from the Department of Justice, the Senate, and from Parliament should be in attendance. These people should have expertise in conflict resolution.
Events will have escalated by the time that the conference convenes and Pakistan will have exploded. I should be in Pakistan right now. I was planning a three-week trip, as it is one of the countries that I work with. I was leaving for Lahore on Sunday. I should be in Rawalpindi or Islamabad right now. The Pakistani minister of foreign affairs told me that if we were to change one bit of the blasphemy law or the separate electors law in Pakistan, the government would crumble and the society would be devastated.
[Translation]
Senator Joyal: I would like to come back to the situation in Kosovo. Was the decision to task the commission with monitoring the way military operations were carried out made by the United Nations Security Council?
Mr. LeBlanc: I cannot answer that question. The High Commissioner for Human Rights was probably sent to Kosovo by the Secretary General. She was responsible for writing several reports on both civil and political rights, as well as economic, social and cultural rights. All the different branches of the Office of the High Commissioner were in the field. This assessment was carried out in the specific human rights context. The mandate of the High Commissioner's Office is so broad. She went there with the authorization of the Secretary-General.
Senator Joyal: To whom should Canada be making representa tions to ensure that basic human rights are respected in a war context such as what we currently have in Afghanistan? That is a situation that may last for quite some time yet, according to what representatives of the coalition have been saying publicly in recent days; we are entering a difficult period because of the onset of winter, ongoing drought and very dry conditions in these regions.
You seem to be saying that in the case of Afghanistan, the commission is not currently playing the same role it did in Kosovo, because it has not yet been asked to get directly involved.
Mr. LeBlanc: The Commission is not in session now; that is why I talked about March or April.
Senator Joyal: Is there anything being done to ensure that the Commission, when it is in session, will be able to address this and carry out its responsibilities in circumstances that we know to be extremely difficult?
Mr. LeBlanc: Afghanistan is already on the agenda. We have a Special Rapporteur on Afghanistan. I referred to the mechan isms put in place by the commission. There are rapporteurs for a variety of countries, such as Burundi and Rwanda, and there is also one for Afghanistan. The special rapporteur tables his report with the commission, presents it and continues to carry out his work. Member countries will certainly address that particular question in relation to each of the issues raised with the commission. It will be debated in the same way the Palestinian question and the Chilean question have been since 1968 and 1976 respectively. There Canada plays its traditional humanitarian role which involves peacekeeping and reconciliation. It tries to predict what will happen when the veil is lifted. The veil may not be totally lifted at the subcommission. What will Canada's role be then? Politically, that is another matter.
Senator Joyal: When you say: "When the veil is lifted" what are you referring to in particular?
Mr. LeBlanc: I am referring to the fact that unless you are on the ground, unless you have access to television coverage in Qatar, there is no way of really knowing what is going on. We receive information about the number of wounded, for example, but we do not really know what kind of damage has been inflicted or what kind of urban infrastructure is in place, and so on. The veil has not been lifted on these questions.
As regards sanctions against Iraq, we have been asking that they be lifted for the past two years. The Iraqi infrastructure is practically non-existent. Unicef's statistics show that 500,000 children have died as a result of the sanctions over the last 10 years. However, the veil remains in place, unless you actually go there. I was scheduled to travel there in March, but the mission was cancelled for other reasons. So, there is a veil. Why? Because of the media; the people who are on the ground.
Senator Joyal: What approach should Canada be taking to the debate that will be taking place in a few months?
Canada has traditionally played a humanitarian role - you referred to that earlier. In your view, should we be focussing on certain priorities, given that we cannot address every issue affecting civilian populations? According to publicly available information, almost 7 million people have been displaced. Given that Canada has limited means, its interventions may not allow it to meet every need. Where do you think our country could be most effective in addressing this issue?
Mr. LeBlanc: We are still addressing the humanitarian aspect of sanctions against Iraq, although we do not get involved in the political issue. I know that when Canada was chairing the Security Council in April 2000, Mr. Axworthy introduced humanitarian language. At the subcommission - because I am also involved in its work - we were able to get the humanitarian language passed - in other words, to introduce the humanitarian aspect of sanctions into the debate. The major powers did not want to see that word used at all; it was only through the help of the European Union, with whom we worked closely, that we were able to introduce that language. As I see it, the introduction of that language is part of our heritage, our history. I don't see that language, that humanitarian component. How we say it is another matter.
Senator Joyal: The Secretary-General of the United Nations, Mr. Kofi Annan, has an envoy there now - the former Foreign Minister of Algeria - who is trying to end the conflict, while at the same time reporting to UN authorities on what he has observed. The orientation of the United Nations is not what I would call multi-facetted. The UN has an interest in ensuring not only that the refugee question is addressed, but that balance is achieved in terms of the representation of the various groups that may be part of a future government. It will also have to consider the future role of Pakistan in the region. At this point, what is the best approach to take at the UN to obtain the kind of information that would allow us to lift the veil on the current situation?
Mr. LeBlanc: I think you would have to actually go there and ask the countries doing the bombing. They are the ones that have to take the pictures. What interests me is Canada's role at the Human Rights Commission. In March, we may know better what exactly has occurred.
We know that there is depleted uranium in Kosovo. We know that that depleted uranium is still being used and, according to Dr. Rosalie Bertell, who has carried out extensive studies in this area, that uranium has a useful life of 2 million years. It is still being used in both Kosovo and Iraq, but I'm not sure about Afghanistan.
[English]
Mr. LeBlanc: Thus, the humanitarian impact of what is happening goes beyond the Human Rights Commission.
[Translation]
I am always trying to see how we can get involved in the discussion that will be taking place at the Commission and make our contribution to peace and reconciliation, focussing on the victims.
Senator Losier-Cool: How can we get involved in the discussion regarding the rights of children? Are there any experts or an ambassador among the 53 countries that are currently members of the commission? For example, an ambassador for children who could talk about infant mortality, children who are victims of war, and so on?
Mr. LeBlanc: As a UN agency, Unicef presents reports every year and its statistics on Iraq are quoted. Unicef is on the ground and is publishing reports. There is the Committee on the Rights of the Child, which is linked to the Commission on the Rights of the Child, which also meets. In addition, Kofi Annan's Assistant Secretary is responsible for the issue of child soldiers. Garça Machel, the wife of Mr. Mandela, carried out an extensive study of child soldiers. So, there is a lot of activity in that area. And it is interesting, because our interventions on Iraq always deal with children and the humanitarian issue. That is the lead-in: children and women. The two cannot be separated. We use Unicef statistics.
Senator Losier-Cool: Our role as parliamentarians is to ensure that Canada, which is a member of the Commission, reflects the rights of the child in its language. We know that it does that to a certain extent, but it could do even more. Are there other countries that get involved in the same way? Is this discussed at the Commission?
Mr. LeBlanc: I have a good relationship with the Canadian delegation, I know all the members. However, I work to a much greater extent with the European Union. It is the EU that tables most of the resolutions and that I expect to present a somewhat different view with respect to Afghanistan. Canada has much stronger ties to the United States. That is understandable. I think we can have an independent voice.
Senator Losier-Cool: We could raise that with members of the European Union at our Canada-Europe meeting. For example, last week, we dined with the Belgian Ambassador. We could have raised the issue then.
Mr. LeBlanc: The Belgian, German and other delegations as well are very prominent within the Commission. It always depends on who is chairing. Which country is chairing this month?
Senator Beaudoin: Belgium will be chairing until the end of December.
[English]
The Chairman: We are trying to study which areas we should take on in the field of human rights. We are mindful that there is a Foreign Affairs Committee that will deal with Canada's position on some of the specific human rights issues.
Would there be any merit for a committee such as ours to study the workings of the UN commission? You have not dealt with that issue. You have been discussing the topic-specific issues. Certainly in other fora I have heard that the commission does not function well with the rapporteurs and thematic themes for under-funding. There is some politicization of these people as to how they are chosen. Would there be some merit in looking at the machinery of the UN commission? Fifteen or 20 years ago Canada's position vis-à-vis the commission was that we should not be extending new topics, and addressing new covenants and conventions until we fixed the machinery that we have, and until we put the implementing network in place for the existing treaties and covenants.
Mr. LeBlanc: The commission has just gone through a four-year review of the mechanisms. Canada played a key role in that commission.
I do not think that such a review would be worth your valuable time. Your committee should focus on the role of Canada at the commission and how you might influence the language or be better informed of what is happening. I probably know more about what Canada's position because I attend the briefings and am frequently in consultation with the committee. We will have to re-craft our language as a result of the events of September 11. I feel that as an NGO.
Professor Bayefsky wrote a report on treaty bodies and was attacked for her work. You have to become part of the commission to understand the work that they do.
The Chairman: I was involved in the stages where NGOs were given an opportunity to meet with the government as it was developing its position. The comment that I heard was that, while NGOs give their point of view to the government at an early stage, the negotiations are important in the Human Rights Commission as to the "art of the possible." You do not know until you get there and find out who the members are, what the issues are, and what coalitions you can build.
I have heard that there is a need for more transparency in order to receive feedback, both at a parliamentary level and otherwise. In that way we might provide some direction to the government as to what we think about some of these issues.
Mr. LeBlanc: That is my comment. I have a sense that this committee is an important committee in the parliamentary process. How can you be involved? There are some possible answers: You might bring in civil servants or bring in the minister for an in camera session. You might find out why the commission chooses the members that it does; why different countries are chosen to intervene; and why they focus on certain themes.
I hope that the Department of Foreign Affairs and the government will work toward developing positions at the Human Rights Commission.
The sub-commission has been in existence since 1947. It has raised and developed the groundwork yet they were stripped from their ability to pronounce themselves on country situations. The sub-commission is made up of independent experts.
When the commission adopts a resolution it is totally different. We are talking about 53 country and all the regions agreeing on a resolution and moving on it. Much of the groundwork cannot be done by the sub-commission. Whenever you reform something, there will always be some good stuff and some other stuff.
Senator Beaudoin: A few weeks ago, we heard from Mr. Amor, the president of l'Académie international du droit constitutionnel. He informed us that under section 93 Canada had been criticized in the field of education and denominational rights. Education in Canada is provincial issue and some provinces have denominational rights and others do not. For example, Quebec obtained an amendment that we voted for in the Senate. In Newfoundland, the same thing happened. In Ontario, the Catholics still have their denominational rights, as do the Protestants.
Mr. LeBlanc: Those are constitutional rights.
Senator Beaudoin: Yes, they are constitutional, but we call them denominational, but they are constitutional, I agree with you.
The United Nations has criticized us and said that we are against the principle of equality and freedom of religion. That is in the sense that the Protestant and Catholic groups have special subventions, but those who are not Catholic or Protestant may obtain subventions but they are not protected by the constitution.
Mr. Amor asked my opinion and I said that both Quebec and Newfoundland adopted a constitutional amendment. Thoseparticular religious issues were solidly enshrined in theConstitution of Canada in 1867; but today, in the modern world, it is not as accepted as it was in the 1867. Have you hear about that?
Mr. LeBlanc: Mr. Amor is a special rapporteur on religion discrimination. I read all of his reports, but I always focus on the countries that are of interest to me. Canada is of interest to me, but I focus on the five or six countries that I work with specifically.
The Chairman: This is a complex issue that has been part of the UN machinery. It would not serve us to get into that, but we could take it up and provide the committee with information about the decision.
Senator Joyal: Madam Chair, we should look into the report of Professor Bayefsky that was mentioned by our witness. It would be important that each of us read it.
The Chairman: I have undertaken to get that information to the committee. It received some press coverage. I do not recall how it was dealt with in the UN system and how it was reported out. Rather than guessing, I will bring the information to the committee.
Mr. LeBlanc: When I was at the sub-commission, the Committee on the Elimination of Racial Discrimination was meeting. They issued three press releases condemning the report. I brought that to the attention of the Canadian delegation in Geneva, because I am a Canadian. Regretfully, I have not been able to obtain the report, so I cannot substantiate it, but it was on the Web site and was circulated at the UN. I thought it was very strong language in terms of her report on treaties.
The Chairman: We will deal with that later.
Senator Joyal: How many other groups in Canada have permanent delegates to the Human Rights Commission?
Mr. LeBlanc: There is a list of delegates on the Web site of Heritage Canada. There may be 50.
The Chairman: I think it would be a minimum of 50. You must go through a consultative process in order to be recognized as an NGO for the purpose of observer status in the commission and for the purpose of speaking in certain cases at the commission. I think we can get you the regulations that ECOSOC uses and also the number of Canadians presently listed there.
Senator Joyal: To return to Kosovo, I understand that the weekly reports that you mentioned were during the session of the commission.
Mr. LeBlanc: During the commission in 1999.
Senator Joyal: Is it possible to have a summary of which aspects the report concentrated on?
Mr. LeBlanc: She presented her report she used the UN categories of civil and political rights and economic, social and cultural rights. I am sure the clerk could find her statements on the 1999 UN Commission on Human Rights under the statements of the high commissioner on Kosovo. I believe she made three or four statements, but it was in the midst of the bombings.
The Chairman: Mr. LeBlanc, you have generated a wide-ranging discussion here. Thank you for giving us perspectives on what our work should be when we deal with the machinery of human rights. It seems that one of the inequities in the commission is that if there is a current issue when the commission is sitting, it gets a high profile, be it Kosovo or, at the time I was there, the Iraq war. If the conflict is in an off-month when the commission is not sitting, it does not gain the same attention and currency. Perhaps that is one of the weaknesses of the commission.
I leave you with that to ponder and hope you will find a way for the commission to get more fairness, not only on a country-by-country issue, where there is much selectivity, but also on an issue-to-issue basis.
I thank you again for making this effort.
The committee adjourned.