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Proceedings of the Standing Senate Committee on
Human Rights

Issue 10 - Evidence for May 6, 2002

OTTAWA, Monday, May 6, 2002

The Standing Senate Committee on Human Rights met this day at 4:07 p.m. to study the status of Canada's adherence to international human rights instruments and on the process whereby Canada enters into, implements and reports on such agreements.

Senator Joan Fraser (Deputy Chairman) in the Chair.


The Deputy Chairman: Honourable senators, I call this meeting of the Standing Senate Committee on Human Rights to order.

The committee is meeting today to resume its consideration of Canada's adherence to international human rights obligations. In particular, we are examining whether Canada should accede to the American Convention on Human Rights, an issue that was identified as one requiring detailed study in the committee's December 2001 report ``Promises to Keep: Implementing Canada's Human Rights Obligations.''

After hearing from as wide a range of witnesses as possible, the committee will analyze the issues involved and make recommendations and comments to the Senate for its consideration.


Our first witness today is Professor Lucie Lamarche from the Faculty of Law, University of Quebec at Montreal. Ms Lamarche studied law at the University of Montreal and the Université libre de Bruxelles. She has a doctorate in law and is a member of the Barreau du Québec. She has published various studies on government structures for the protection of human rights, the work of women and social condition as a prohibited ground of discrimination. Professor Lamarche has also conducted studies on human rights in the Americas — which is of particular interest to us. We are very pleased to welcome her here today.

Professor Lucie Lamarche, Faculty of Law, University of Quebec at Montreal: I wish to thank all the members of the committee for their invitation. I find it comforting that the American Convention on Human Rights is — I hesitate to say it — once again on the Canadian agenda. Before addressing the question of whether Canada should ratify the Convention, I would like to focus on certain political, institutional and situational issues related to this kind of examination. As a result of Canada's joining the OAS in 1990, the question of the Convention's ratification has become a non-issue in Canadian foreign policy.

We now find ourselves in the strange situation in which the other party appears to object to ratification without any real discussion having been started in Canadian society or without even knowing who that other party is. Is it the federal government, the provincial governments, Canadian civil society or, more specifically, certain groups in civil society? That's an important initial concern.

We often hear that the American Convention on Human Rights is the business of Latin America, that it's not our business. Is this the case? I don't believe so. The United States has taken part in the development of the text of the Convention. When Canada joined the OAS, it announced that it would consider the appropriateness of ratifying the Convention. The American Convention on Human Rights is no less Canada's business than are the United Nations agreements or the Charter of Human Rights.

It is an interesting question whether the fact that Canada is bound by the American Declaration of the Rights and Duties of Man is sufficient for it to comply with its undertakings under the OAS Charter.

Under article 20 of the statute of the American Convention on Human Rights, the Commission must pay particular attention to Canada's compliance with certain provisions of the Declaration and, for that purpose, receive the communications of individuals who feel their rights have been violated, more particularly their fundamental freedoms, as well as questions of access to justice and legal guarantees.

However, this situation does not submit Canada to the Inter-American Court's jurisdiction. Furthermore, the Inter- American Commission may contemplate missions to Canada even if the Convention is not ratified, and it moreover has done so in the case of certain questions pertaining to refugees.

However, the mere fact that Canada is subject to the Commission's jurisdiction as a result of its adherence to the Declaration does not ennoble Canada's situation. Canada is unfortunately sheltered from the actual consequences of its recognition of the jurisdiction of the Commission and Court.

The University of Quebec at Montreal, to which I belong, recently provided the Mouvement des femmes du Québec with training on the inter-American rights system. Thirty women representing various Quebec women's groups were present. What a surprise for us to see that ultimately this system is absolutely unknown to the Quebec community movement.

Furthermore, there is no reason to believe that the situation is different in Canada. And yet, the feminist movement, like the Quebec and Canadian community movement as a whole, met in Quebec City last year for the summit and called for the precedence of human rights over trade.

The problem is thus broader than merely stating that no one sees why it would be relevant for Canada to ratify the American Convention on Human Rights. The fact is that, since Canada joined the OAS, we have been placed in a different situation and that the difference is underscored by the fact that the Summit of the Americas was held last year.

Briefly, I will respectfully recall some of the commitments made in the declaration of the Summit of Quebec City in April 2001 and, among other things, the undertaking by the heads of state to ensure full compliance with human rights, to support the strengthening of the inter-American human rights system, which includes, of course, the institutions of the Commission and Court.

The Plan of Action of the Quebec City Summit, more particularly section 2, entitled ``Human Rights and Fundamental Freedoms,'' also states that the heads of state have undertaken to ratify, as soon as possible, the human rights instruments of the inter-American system.

In my second point, I will dwell briefly on the question whether Canada's ratification of the Convention is merely a foreign policy question. It is in part. As Canada has not ratified the Convention, it came in for criticism when certain countries — Barbados, Jamaica and Peru — threatened to withdraw from the inter-American system.

It is also correct that the Latin American democratic movement is impatient for Canada to enter the system and for Canadian civil society to take an active part in the operation of the OAS. Canada has much to contribute to the OAS, legally, politically and financially.

However, we find it somewhat inadequate to rely on the foreign policy argument because the Convention is the central nervous system of a set of human rights instruments which could also serve to provide better protection for the rights of Canadians in Canada.

That is certainly the case of the Convention protocol called Protocol of San Salvador, which recently entered into force and concerns economic, social and cultural rights. In fact, since the Supreme Court of Canada rendered its decision in Irwin Toys in 1989, Canadians still have not known exactly what to rely on with regard to the protection of the hard core of economic rights essential to their security.

If we are to rely on international instruments in this regard, we clearly cannot claim that the justified reprimands issued by the Committee on Economic, Social and Cultural Rights of the UN Covenant really help to change things in Canada or guarantee that Canadians would be protected from the vicissitudes of poverty.

Similarly, in 1995, the OAS adopted a convention on the eradication of violence against women called the Convention of Belém do Pará. Belém do Pará is a stand-alone convention, but its interpretation clearly depends on the terms of the principal convention, the American Convention on Human Rights.

It is strange to say the least that Canada is so reluctant to consider ratifying the Convention when it has previously taken an active part within the OAS in the development of the Convention against Terrorism, which will likely be adopted at the next general assembly of the OAS and which Canada has expressed its intention to ratify.

It is strange that the only OAS treaty ratified by Canada concerns the fight against terrorism, whereas, here in Canada, much heated debate on respect for fundamental freedoms preceded the adoption of a number of pieces of legislation designed for the same purpose.

In short, the question of the Convention must be viewed more comprehensively than by merely analyzing its text. Now let's talk about the text of the Convention and the Convention itself. Usually, the American Convention is introduced by highlighting its defects, its grey areas and imperfections. First, I would like to focus on the richness and particular characteristics of some of the provisions of the American Convention and very briefly sketch out some points in this regard.

For example, article 29(b) of the American Convention provides that no provision may be interpreted as restricting the enjoyment or exercise of any right or freedom recognized not only under the national legislation of a state but also by any other international undertaking which that state might have made.

This, I believe, is the strongest expression of the interdependence of all human rights instruments. In fact, this is a stronger provision than article 5(2) of the Covenant on Civil and Political Rights, which Canada has of course ratified.

I would also respectfully like to draw your attention to article 1 of this Convention, which of course provides that the rights and freedoms guaranteed by the Convention may not in any case be violated through discrimination. Prohibited grounds of discrimination include social condition, with regard to which there is currently every reason to believe that the Canadian government has some conceptual difficulties in contemplating amendments to the Canadian Human Rights Act.

As to the third point, article 21 of the Convention, Right to Property, provides that the law may subordinate the right to property or the right to peaceful enjoyment of one's property to the interest of society.

That's more generous, more explicit than the terms of the Quebec Charter of Rights and Freedoms, which subordinates the peaceful enjoyment of property only to the measures provided for by the Act. Moreover, recently, in August 2001, the Inter-American Court rendered a decision that did not go unnoticed among the Canadian First Nations. That was in the case Awas Tingni and Nicaragua, in which the Court reminded Nicaragua that it had an obligation to proceed with the demarcation of lands to which Nicaragua's Aboriginal populations had historical title.

At the present time, the Commission has ruled another case admissible, that is Toledo Maya Cultural Council of Belize v. Belize, which, once again, concerns the same question of the violation of Aboriginal lands.

Article 26 of the Convention, unlike the Covenant on Civil and Political Rights, is equivalent to article 2 of the UN Covenant on Economic, Social and Cultural Rights and protects while stating the need for the states to gradually implement economic and social human rights.

Last, I will draw your attention to article 32, which I think is very richly worded, even in French, because it is no secret that French is not the preferred language in the written text of the American Convention on Human Rights. Nevertheless, article 32 provides that the rights which the Convention guarantees are limited by the rights of others, by the security of all, and by the just demands of the general welfare in a democratic society. This is a rich avenue to explore.

The American Convention on Human Rights is a regional instrument with a political history which attaches greater importance to the concept of the general welfare and social interest than the UN covenant. We think this should please Canada, which also carries the heritage of the Canadian welfare state, which I think distinguishes it favourably from our immediate neighbours to the south.

I am not stating this good news in order to downplay the difficulties of the Convention. Essentially, I would submit to you that there are two or perhaps three difficulties regarding the consistency of the provisions of Canadian law with the terms of the Convention.

Article 13 of the American Convention concerning freedom of thought and expression... I know this committee has previously considered the question of prior censorship, and it is not impossible that a careful examination must be conducted of the Criminal Code provisions on child pornography. I say it is not impossible because it is not impossible either that, read as a whole and interdependently with other human rights instruments such as the Convention on the Rights of the Child, there is not really any incompatibility. However, I leave the door open, and I would stress at this stage that a careful examination should be conducted of this first question.

The second question which I believe deserves the same careful examination concerns paragraph 8 of article 22 of the Convention. Article 22 is entitled Freedom of Movement and Residence, and paragraph 8 of that article states that in no case may an alien be deported or returned to a country.

I believe that the decision rendered by the Supreme Court in Suresh in 2001 comes quite convincingly close to meeting the requirements of article 22.8, but I also believe a careful examination should be conducted.

My third concern of course is article 4 of the Convention. I am convinced that a number of representatives of women's groups in Canada and Quebec will have detailed discussions with you about the difficulties raised by the terms of article 4.1 of the Convention. I will briefly outline the essentials.

As we know, article 4 protects every person's right to life. It imposes a duty on states to protect that right in general from the moment of conception. It also provides that no one shall be arbitrarily deprived of his life. There is no reason in Canada to deprive persons born, living and viable, including women, not to mention offenders, of protection of their right to life. We must not only consider reinforcing a resolutely Canadian position against the death penalty, but also protect the many situations of vulnerability which can jeopardize a person as a result of an act or omission by public authorities in Canadian society.

In light of the interpretive tools available, it may be concluded that the wording of article 4 of the Convention, which differs from that of article 1 of the American Declaration, was adopted following intense discussions for the purpose of promoting the countries' room to manoeuvre with regard to abortion. This is essentially what the Inter- American Commission on Human Rights recalled when it adopted its position on the Baby Boy case in 1981. It was an American case, but it was in 1981. Over the past decade, international law has evolved to an incredible degree under pressure from the international feminist movement. Drawing, for example, on the general recommendation on health, recommendation 24 adopted by the Committee of the UN Convention on the Prevention, Punishment and Eradication of Violence Against Women, which I will now refer to as the CPPEVW, or based on the interpretation contained in article 6 of the Covenant on Civil and Political Rights, the Committee on Human Rights, it may be said that women's right to abortion and the question of access to adequate reproductive health services are essential components of women's right to life, security and equality in international law.

Article 4 of the Convention must thus be interpreted in accordance with article 29 of that same Convention, which prohibits signatory states from granting their nationals a lesser degree of protection than that to which they have agreed in ratifying other international instruments. Under this positive analysis, article 4.1 of the Convention is not entirely consistent with the state of the law and case law in Canada. Consequently, the technique of the interpretive declaration should be employed at the time of ratification. We will return to this later.

On article 4, however, may I emphasize that, although international human rights law stands as a watchdog over the forms of national protection granted for those rights and facilitates their evolution, it does not stand as a substitute for a requirement of democratic vitality which would make those rights live here at home and near home.

Consequently, it would be vain to search international law for an antidote to Canadian political moods which could call into question the state of law in Canada, but it would also be incorrect to claim that a shift to the right in Canada, and I say that in quotation marks, could disregard the protection offered for human rights under international law.

In closing, I would like to say a few words on the technique of reservations and interpretive declarations, a technique which Canada could consider using for ratification purposes.

First, Canada is not a champion of the reservation technique but resorts to it where appropriate. It did so in the case of the Convention on the Rights of the Child when it came to defining the notion of family in the context of the provisions on the adoption of children from the First Nations. Second, Canada is neither the first nor the only country to use the interpretive declaration technique in ratifying the Convention. Mexico has already done so.

Why then insist on an interpretive clause or an interpretive declaration rather than a reservation? Because the right to life is the most tangible and most fundamental right of all, and the reservation is simply unacceptable. It is hard to see how Canada could run from commitments regarding the right to life, hence the idea of resorting to the interpretive declaration mechanism. This involves a unilateral declaration by a state made at any time to specify or clarify the meaning and scope of an undertaking. An interpretive declaration is used to resolve a problem of interpretation in favour of the state that records it. It may also be withdrawn at any time. This reasoning would be valid for both articles 13 and 22.8, to which I referred a moment ago, if there was reason in those cases to consider resorting to an interpretive declaration, which, I repeat, I am not completely certain is the case.

The situation has evolved in Canada with regard to the possibility of ratifying the Convention by combining ratification with an interpretive declaration, if the federal government has not initiated a productive discussion on the question of the terms of the Convention's ratification. It must be acknowledged that civil society has been kept in the dark for many years. Now the feminist movement has taken it upon itself to address this question. It is discussing it. It has adopted this issue as its own. This is progress. As an example, I cite the continued dissemination of what I consider the highly acceptable proposal by my colleague, Professor Rebecca Cook of the University of Toronto, with regard to the potential wording of an interpretive declaration in article 4.

The language will evolve, and the interpretive declaration is not a novel or therapy or a political argument. The writing must be brief and to the point. However, I don't believe it can be claimed that the question of the ratification of the American Convention has reached a permanent impasse in Canada.

Over the past 10 years, the inter-American system of human rights has made remarkable progress in terms of effectiveness and credibility. I believe that Professor Cassel, whose testimony you recently heard, described this in technical terms: time periods, the execution of court judgments, the involvement of victims in the process, field investigations, technical cooperation. The list is long, and we cannot always observe such significant progress in the case of UN institutions.

When the heads of state made the commitment in Quebec City to support the Court and Commission, they acknowledged that progress. The text of the Convention contains no reason serious enough to explain Canada's failure to ratify it. Like the other states of the Americas, Canada subscribed to the undertakings made at the Summit of Quebec City in April 2001. I therefore hope I have managed to make it clear that the American Convention on Human Rights is not just someone else's business, but also our own.

The Deputy Chair: Thank you very much for your presentation. I'll take advantage of my position as Deputy Chair to ask you the first question.

You mentioned article 14, the right of reply. Could you tell us why? I was disturbed by that.

Ms Lamarche: Article 14 can be read in two ways: literally or in context. Although Canadian law, both the common law and the civil law, is not entirely consistent with article 14, Canadian law offers useful and effective remedies for victims of libel and defamation. The fact is that, in civil law, in Quebec, for example, the Press Act provides, first, that a newspaper may retract and that, where it considers it appropriate, may ultimately even afford the victim of the libel the opportunity to explain himself. We know that, if the media do this, the victim is to all intents and purposes deprived of any remedy. The victim is thus very well served in terms of useful remedy. It is hard to believe that, in view of the quality of the law and of the available recourse and remedies in both common law and civil law, the American Commission would come to the conclusion that Canadian law is deficient with regard to the remedies available to the victim.

I would stress this point again. It is always possible to draw a literal comparison between the national law and the requirement of the international standard, but it is more in the context of interdependence and evolution that this question of consistency should be viewed. That's an opinion. I believe the Commission would find that Canadian law affords victims useful remedies which meet the objective sought in article 14 of the Convention.

Senator Joyal: In the second last point on the first page of your presentation, you say:

The Canadian community movement objected to the FTAA in order to claim that human rights took precedence over trade.

My first question is related to Canada's current efforts in Africa which concern — perhaps I don't have the right term — the governance of the African states on the one hand and a process of evaluation by the states themselves of human rights developments on the other. In the first case, it appears that there is a proposal acceptable to the African states and, in the second, that there is considerable resistance. To make recommendations to the government, our committee must be consistent in its continental approach to human rights. In other words, we cannot advocate respect for human rights while telling the citizens of other continents that everything is perfect here at home and that the problem is in their countries. If, on the contrary, we are on another continent, we cannot say that we don't want to take part in societal debates on problems we have already resolved.

Our international policy must have clear principles applicable at all levels of international talks, be they with China or the countries of Africa or South America with which we are contemplating trade or other types of exchange.

My first question is a foreign policy question on the coherence of Canada's assertion of respect for human rights. To what extent is that assertion significant?

My second question concerns the right to property. Twenty years ago, the Canadian Charter of Right and Freedoms was debated with the Canadian provinces. The provinces objected to the right to property being subject to recognition and protection in the Canadian Charter of Rights and Freedoms for constitutional reasons with which you may be more familiar than I, that is to say that the civil law and property are under provincial jurisdiction.

If we recommended that the government ratify the Inter-American Declaration, the entire question of property rights, the paragraph to which you yourself referred, should be the subject of either a reservation by the Canadian government or an endorsement by the provinces. However, we already see problems here because, as you very correctly defined it, the right to property in the Inter-American Convention is subject to limits that do not exist in Canadian law and even in provinces like Quebec which boast of being progressive. That could cause other problems in certain provinces which might see an unacceptable limit in this. There is a jurisdictional problem that must be considered.

The third question concerns the fact that, on the last page of your presentation, in paragraph 3, you say:

The interpretive clause is a unilateral declaration made by a state at any time. So that would mean a shift to the right. If there were a shift to the right, what type of protection, in practice, could be found in the declaration since, at any time, supposing that we have a right wing government in Canada, a government could make a declaration which would have the effect of suspending the clauses or of attaching a value to the interpretation of the clauses that would afford virtually no protection? In practice, doesn't this provide any government with an easy way out? The Convention would become a general policy orientation which in practice has some mechanism for suspending certain rights which could be recognized in it and could be useful for the purpose of economic rights in particular? One can understand that a right wing government might have enormous reservations about the protection of economic rights on the basis of a virtually absolute free market.

Ms Lamarche: First of all, I am completely baffled that my scribblings have been circulated to the members of this subcommittee. I thought I had submitted them for the sake of the translation. Perhaps that's good news. I hope you will pardon the mistakes and inconsistencies. It's not a very good-looking document; it was not intended for you. I apologize for it.

On the question of the coherence of Canadian foreign policy with regard to human rights, with your permission, I will focus on the Americas since this is a regional instrument of the Americas here under study. Since you have my notes, you may perhaps have seen that I skipped a brief passage of those notes concerning the Inter-American Democratic Charter.

I believe I understand that the Canadian government's position on this question of the coherence of its foreign policy on the one hand and its human rights undertakings on the other is based, in the case of the Americas, on the recent adoption by the General Assembly of the OAS of a resolution entitled the Inter-American Democratic Charter. Canada has claimed to its fellow member countries of the OAS that it relied on it in the recent upheavals in Venezuela.

This Democratic Charter is based on the right to democracy, not on respect for human rights as stated in the human rights instruments of the inter-American system. I believe there's a significant difference. While the Democratic Charter is a useful political instrument, it does not in itself ensure the consistency you refer to with Canadian foreign policy. The fact that work was done, very hard work in the case of Canada, to pass this resolution on the American Democratic Charter does not reinforce the human rights institutions of the inter-American system. It reinforces the democratic capability of the General Assembly of the OAS. I therefore believe that coherence is not achieved in the link between trade and human rights in the Americas. I repeat, the fortunate passage of this resolution called the Inter- American Democratic Charter is a step in the right direction, but it cannot compensate for Canada's failure to ratify the Convention.

Your second point concerns the fact that article 21 confers on every person — and you noted that the American Convention defines what a person is; a human being is a person — the right to the use and enjoyment of his property. Everyone must understand that this right is subordinated to the interest of society, in essence. The question of the division of powers under Canadian constitutional law must not be confused with the promotion of every person's right to the use and enjoyment of his property. No province can claim that its system of law does not contribute in one way or another to the promotion of every person's right to enjoy his property. In that sense, the fact that article 21 is entitled ``Right to Property'' definitely does not seem to me to be a barrier in itself. That's the first part of the clause.

The second part of the clause concerns the limit, as it were, of that right. The French version of the first paragraph of article 21 provides that the law may subordinate such use and enjoyment to the interest of society. I think it's obvious that, in the case of the Convention, as in the case of other instruments, human rights, one day or another, the interdepartmental committee of the provinces, territories and federal government which, and this is a practice in Canada, is considering the question of whether the Convention should be ratified, will be considered activated or reactivated.

However, it is not impossible that the delicate evocation of the concept of the interest of society appears in another context than the one you refer to because some could claim that there is a jurisdictional problem. I claim instead that we are again faced with a problem of consistency between Canada's commitments under trade agreements. Canada has not exactly, or in all cases, taken note of the sensibilities of all the provinces of Canada, and there would thus be a risk of inconsistency between the immense commitments made under the trade agreements and the limit — we are dealing with a limit in the form of the possibility of not limiting the right to property except in the interest of society, not the interests of trade. I believe that, in a historical perspective, one could say that this is still a subject of dispute or difficulty between the provinces and the federal government. I believe instead that we must observe here that we are facing a new challenge. This is a concept that directly calls for the internal consistency of Canada's commitments between the interest of society and the trade agreements.

Your third question concerned the interpretive declaration and its somewhat mischievous side since it can be withdrawn or introduced at any time. I said in my notes, and I believe this is a point of honesty, that international human rights law is a useful and necessary watchdog in the national human rights bill of health, but it will never replace Canada's democratic health.

I believe that, if we had to consider the scenario referred to by some of the withdrawal of an interpretive declaration, which would consist precisely in putting article 4 of the Convention in context, we would not have just one problem with article 4. The states do not play leapfrog with interpretive declarations. That's not the practice in international law. It's theoretically possible, but it's not the practice in international law.

Furthermore, even if a leapfrog attitude were adopted in Canadian democracy, a more fundamental principle would remain. And that is the relationship of interdependence between the American Convention on Human Rights and all other human rights instruments.

Because of CIDA, the Convention on the Prevention, Punishment and Eradication of Violence Against Women, the Covenant on Civil and Political Rights, the Convention on the Rights of the Child, certain interpretations would even go so far as to say that, because of the Convention on Torture, with respect to access or non-access or deprivation of access for women to health services, because of the intensive and blinding developments in human rights instruments as a whole, Canada's reference to the technical possibility — which would already be quite cavalier but nevertheless possible — of withdrawing the interpretive declaration seems to me to be a minor scenario compared to a major undertaking, which is the whole of Canada's commitments under international human rights instruments, that that's the best protection afforded for women's right to equality, security and life. It is sometimes forgotten that women also have a right to life for themselves and to access to health services, including reproductive health services.


The Deputy Chairman: Before I give the floor to Senator Cochrane, there is one thing I should make clear. Professor Lamarche, your notes are not formally circulating before the committee. We understand they were put together to help the translators and you were good enough to bring them. Because we had them, those senators who wished to see them are invited to look at them. They are, as you note, only in French, and they are not part of the formal record of the committee. The formal record of the committee is what you said which, I note, followed very closely the text of your notes.

Senator Cochrane: You made reference several times about the April 2001 Quebec Summit. From your perspective, what progress has been made up to this time? Have we made any advances?

Ms Lamarche: With respect, are you referring to human rights advances?

Senator Cochrane: Yes.

Ms Lamarche: It is very interesting because never before has the issue of regional instruments of human rights gained visibility at the level of the Quebec Summit. At the Quebec Summit the states themselves made references to regional human rights instruments and their official declaration and plan of action. This was surprising because when you compare the official document to the alternative document that was produced by civil society, there are more references to human rights instruments in the official document adopted by the chiefs of state than there are in the ultimate document adopted by civil society.

That could be seen as a strange reality, but it is not that strange. It shows that civil society made contact with the regional human rights instruments in many cases for the first time. It was the first encounter between civil society and the existence of a regional human rights instrument. I see it as good news. I see it as progress.

That progress is also seen by the need that was expressed — especially by the women's movement — around the issue of knowing more about the inter-American human rights system. I have been working with the Quebec women's movement for more than 20 years. That was the first time there was a direct request to receive training about the inter- American human rights system. This is real progress. I am not pretending they should think this or that. However, wanting to know more and how it fits with what we learned from the United Nations human rights instruments is real progress. I understand that some groups within the women's movement in Canada are interested in learning first — which is a wise approach — and forming an opinion afterward.

By design or by accident there has been tremendous progress in regard to the inter-American human rights system since the Quebec Summit. I am very tempted to thank the chiefs of state for referring to the OAS in their official declaration.

Senator Cochrane: Did you say that the right to property is not an obstacle? I think you were talking about article 21 when you referred to that. Would you explain a bit? I am left with the understanding that there are so many inconsistencies with regard to property rights among Aboriginal women. Would you like to elaborate on that point?

Ms Lamarche: Indeed, there are no inconsistencies between Canadian law, fundamental rights in Canada, and the inter-American protection of the right to property. The issue of Aboriginal women is one of the first issues that the inter-American court tackled as far as the right to property is concerned. In their August 2001 decision, the inter- American court paid a lot of attention to what deprivation of land in Nicaragua meant for Aboriginal women. Aboriginal women got direct attention from the court.

There are, of course, a variety of reasons, however, the driving section of the convention behind the inter-American court decision is the right to property. It may be more rich and positive and, I should say, more unpredictable than what we would have thought of the right to property 20 years ago in the context of the debate around the Canadian Charter of Rights and Freedoms.

There may be something else with respect to the right to property than what our neighbour, the United States, thinks is the right to property. In fact, the wording of article 21 of the convention gives to a human being, not corporations, the right to property. According to the current state of the law and the case law of the inter-American court, I see no discrepancy between Aboriginal women's rights and article 21 of the convention. People may be afraid of First Nations; there may be difficulties inside communities. Yet, as a matter of fact, in law and caseload, we are not put in a position to see any problem between Aboriginal women's rights in general and article 21 of the convention.

Senator Cochrane: What would you say? Would Aboriginal women say the same thing in Canada?

Ms Lamarche: I would never, with due respect, answer such a question. I am not an Aboriginal woman myself.

Senator Cochrane: I am aware of that. However, being a professor and I am sure you have been involved with so many various groups, I was wondering if you knew what their voice was?

Ms Lamarche: One thing I can say is the Tingni decision from the Inter-American Court has circulated through not only First Nations communities but also Aboriginal women's groups in Canada since the decision was handed down in August 2001. It is obvious that Aboriginal communities in Canada have an interest in this decision.


Senator Ferretti Barth: The articles you have written are impressive. I would like to ask you a naïve question, with your permission. You have written a lot of articles on human rights and the social condition. Where does your expertise in the field come from?

Ms Lamarche: I belong to a group of human rights workers who have chosen to work first of all for the promotion of economic and social rights rather than civil and political rights. It's not an intellectual mistake; it's not that I'm trying to establish a hierarchy of law, but I have been concerned with poverty law for the past 20 years.

I have acquired the conviction that the social condition is an absolutely essential ground for discrimination in making the human rights complaints mechanisms useful to the poorest people and that this is dramatically absent from the federal legal landscape in Canada.

Senator Ferretti Barth: You have worked with women's groups. Do you believe the inter-American human rights system can help to protect women's rights in Canada and South America?

Ms Lamarche: I don't believe there is a women's group in Canada right now that has not received an urgent call from its Latin American sisters for Canada to actively join the inter-American system. By actively join, I mean that it should be present in the institutions of the Commission and Court.

The Latin American feminist movement is extremely active, extremely well structured and demanding. We have much to learn from its ability to mobilize. And where it is demanding, it's in order to benefit, right across Latin America, from an extension of the quality of the standard of Canadian constitutional legal equality.

Simply put, the Latin American feminist movement wants us to put the stamp of the experience and wealth of the constitutional standard of equality of Canada on the institutions of the Inter-American Commission and Court. I believe that the Latin American feminist movement is clear and transparent on that point. We hear it in Mexico, we hear it in Brazil and we hear it in Peru; it's demanding.

Senator Ferretti Barth: I believe these women's groups very much want the Inter-American Convention to be amended. It's fundamentally important for them that Canada join the Inter-American Convention.

Ms Lamarche: I believe you are right.

Senator Joyal: I would like to draw your attention to the fact that, in the last session, the Senate passed a bill introduced by Senator Cohen which moreover had been debated in the Senate Standing Committee on Legal and Constitutional Affairs. The purpose of that bill was precisely to amend the Canadian Human Rights Act to add social condition to the prohibited grounds contained in the Act.

The bill was unanimously passed by the Senate, and, when it was sent to the House of Commons, the viewpoint you stated was expressed again by the government as an argument that there should be a general approach to the amendments that should be made to the Human Rights Act as a result of Judge La Forêt's report and that the government should proceed in a comprehensive rather than piecemeal manner.

I am convinced that this is still an important concern of this committee, and, in our first report, we moreover referred to it in so many words. I take the liberty of making this advertisement, but in fact it will probably interest you.

Ms Lamarche: It does you credit.

Senator Joyal: We always view the question of Canada's joining the Convention from the Canadian standpoint. Shouldn't the American states tell Canada that, as it has assumed leadership for the signing of an inter-American free trade treaty, it should therefore start by showing its interest in inter-American society by signing the Convention?

We always engage in the reverse process. If Canada actually has a role to play, that role can be held up against it by the American states, which would clearly say they are interested in discussing a comprehensive future plan for society for the Americas provided Canada signs the Convention which forms the common societal basis. Have we taken the reverse step?

Ms Lamarche: I believe you also have to consider that certain Latin American states may feel accommodated by Canada's lack of haste in ratifying the Convention and that that makes them extremely discreet suitors.

Some Latin American states may prefer that democratic debates take place in the General Assembly of the OAS rather than in these specialized human rights institutions.

In that sense, some of them could be described as passive supporters of the promotion of human rights. I believe Canada has a separate responsibility to assume and that the call will not necessarily, and definitely not unanimously, come from Latin America.


Senator Cochrane: I was hoping you might be able to comment on discrimination on the grounds of social condition. Perhaps you could offer your views on the rights of socially and economically disadvantaged Canadians? What measures, if any, are in place to protect these types of rights?

Ms Lamarche: I will try to be brief and I hope that you will excuse me if my answer gets to be a bit technical.

I made a reference in my presentation to the San Salvador protocol. This is another human rights treaty inside the inter-American system. It is a protocol, so it must be preceded by the ratification of the convention. San Salvador is a treaty specifically dedicated to the protection and the promotion of economic and social rights. By not ratifying the convention per se, Canada excludes the possibility of engaging itself at the international level for the protection and the promotion of those economic and social rights enunciated in the San Salvador protocol, which is kind of a strange position.

One article in the convention — article 26 — promotes economic and social rights. It is like an introductory note to this other treaty, which is the San Salvador protocol, which came into force in the year 2000. This is not an eventual kind of protection.

Canada is avoiding two things by not ratifying the convention — the convention and the debate around the eventual ratification of the San Salvador Protocol, which is the treaty dedicated to the protection and promotion of economic and social rights.

The Deputy Chairman: Thank you. We have at least one witness on our future list that will be addressing the San Salvador Protocol directly.


Thank you for your testimony, Professor Lamarche. It was extremely useful for us.

It is now our pleasure to welcome representatives from the Canadian Foundation for the Americas, commonly called FOCAL.

FOCAL is an independent non-government organization devoted to the furtherance and reinforcement of Canada's relations with the countries of Latin America and the Caribbean. Its mission is to promote better understanding of hemispheric issues and to assist in building a more solid community of the Americas.


We have with us today Mr. John Graham, Chairperson of the Board of Directors of FOCAL. Mr. Graham was the first head of the unit for the promotion of democracy at the Organization of American States, OAS, and has led a number of OAS election observer and mediation missions. He has worked in Guatemala, the Dominican Republic, Guyana, Haiti, Paraguay, Cuba and Bosnia-Herzegovina. Mr. Graham has occupied a number of diplomatic postings, including High Commissioner to Guyana and Ambassador to Venezuela and the Dominican Republic. He has also served as Director General for the Caribbean and Central America at the Department of Foreign Affairs and International Trade, DFAIT.

With him is Ms Sharon O'Regan, Deputy Director of FOCAL, on sabbatical from DFAIT. Ms O'Regan has served in embassies in Guatemala, El Salvador, Peru and Bolivia. She has had extensive involvement with Latin America throughout her almost 20 years at foreign affairs and prior to that in the private sector.

I welcome both of you to the committee. Please proceed.

Mr. John W. Graham, Chairman of the Board of Directors, Canadian Foundation for the Americas, FOCAL: Honourable senators, I thank you for the opportunity to appear before your committee to discuss the Inter-American Convention on Human Rights. As someone who has spent a large part of several careers on Latin America and the Caribbean, I am delighted to learn of your enterprise in this area. The Canadian Foundation for the Americas, FOCAL, the NGO represented by Ms O'Regan and myself, is equally delighted.

FOCAL is an independent organization dedicated to deepening and strengthening Canada's relations with countries in Latin America and the Caribbean through policy discussion, analysis and the publication of research papers. FOCAL's mission is to develop a greater understanding of important hemispheric issues and to build a stronger community of the Americas.

As I understand it, you are looking for clear, well-informed guidance on whether Canada should adhere to the Inter- American Convention on Human Rights, and, in the event that the answer is ``we should,'' you would welcome a lamp bright enough to penetrate the deep, federal-provincial fog on the reservations issue.

That brings me to my disclaimer. As I explained to the clerk of the committee, Ms O'Regan and I are not lawyers. FOCAL has no special expertise on the intricacies of this dilemma. We would like to paint in some of the landscape in the region to highlight the importance of effective human rights instruments.

Twenty years ago, more than 80 per cent of Latin America was controlled by authoritarian governments, mostly on the right, some on the left, and some semi-authoritarian, like Mexico, in the middle. It is easier to list the exceptions — Costa Rica, Venezuela and the Dominican Republic. The record of the English-speaking Caribbean was quite different; exceptions were authoritarian government in Grenada and less blatantly and a little less authoritarian in Guyana.

These were, in many respects, the dark ages for human rights in Latin America. The OAS was in the hands of the generals and its most powerful member — and the OAS is the most asymmetric organization that Canada belongs to — the United States considered generals the safer bet against communism. Now, with the long-standing exception of Cuba, in widely varying degrees, all of the Latin American and Caribbean countries have constitutional, democratic governance.

This is a significant, measurable change with important benefits for human rights — were especially notable at the beginning of the process. The re-emergence of democracy and increased benefits for human rights springs from a number of factors, primarily, domestic leadership in the countries concerned, a new and more positive attitude on democracy by the United States, and increasingly, the role of the OAS as the regional watchdog for maintaining democracy.

The invocation of the Democratic Charter three weeks ago against a coup d'état in Venezuela was a case in point mentioned by the previous witness. The Democratic Charter had its origins in a policy adopted at the Quebec City Summit of the Americas, in which Canada took a leading role. We have with us a copy of the Democratic Charter if you would like to have it for the committee.

However, the news is not all good. Democracy is a recent phenomenon for the majority of Latin Americans. It came with great expectations, including the equation that economic progress and personal security will march in step with democratic progress and that the three together will create a better quality of life.

So far, the equation has not worked out entirely as planned. Overall, the economic floor has risen over this 20-year period. In the last decade, poverty actually diminished in most Latin American households, but not by much. The gap in the distribution of wealth has risen dramatically. The Inter-American Development Bank has underscored the magnitude of this situation by pointing out that the equity gap in Latin America is the worst in any continent. It is propelled by corruption and the failure of both political will and application to establish effective taxation structures. Those are the principal factors.

This situation has generated frustration, disenchantment with the democratic process and a decline in the quality of life for vast numbers in the region. There is a new crisis, and it is urban chaos, urban pollution, urban corruption, urban crime, and urban disillusionment.

The escalation of these crises has dangerous implications for the democratic process and for human rights. Rising crime, including the spread of organized crime, and the development in many cities of subcultures of violence, present complex and often overpowering challenges to government. The figures for crime-related violence are climbing. A Pan- American health organization paper made the point that ``crime and violence have increased to such an extent in Latin America and the Caribbean that the number of violence-related deaths has begun to affect the general mortality rate.''

In many cases, it is clear that the more citizens are insecure, the more they seek aggressive police behaviour and the more tolerant they are of harsh, abusive methods by security agencies. In a paper issued two years ago, Human Rights Watch concluded that ``the inability of police and courts across the continent to control common crime by legal means led to serious set-backs in human rights. In some areas, September 11 has wrapped another layer of insulation around police abuses.

Wholly inadequate energies, priorities and resources are being devoted to professionalizing police and courts in many countries. Banging the drum for human rights is not as popular as it was.

All of which circles us back to the importance of maintaining, strengthening and enhancing the credibility and effectiveness of international instruments designed to promote respect for human rights and adherence to its norms.

Again, we are not experts on this area at FOCAL. However, my understanding is that the convention is under- funded, does not contain a system that ensures compliance, lacks consistent support from its signatories, and stands in need of reform. Canada and the United States are at times being used as scapegoats by the actual signatories for the weaknesses of the convention. As well, there is no discernable evidence that those who have signed have, on the average, better human rights records than those who have not signed.

Our credibility in the general area of American human rights and our ability to reform imperfect mechanisms are unquestionably impaired by our non-signatory status. I believe we are overdue for a more positive approach to this issue. However, I also believe that the formulation of a strategy to sign the convention is not as straightforward as some advocates suggest. Without the exercise of senior political will, the issue is likely to continue to drift at official levels.

I share the perplexity of Mr. Warren Allmand, who testified to you last month, on why the Department of Canadian Heritage has the lead in federal meetings in this area. Perhaps I do not understand the logic of this arrangement. However, it seems to me that the leadership should flow from, and accountability should flow directly to, the Minister of Foreign Affairs in consultation with other colleagues.

Canada has been one of the architects of a legal and declaratory system — including the Democratic Charter — that has been remarkably successful, and has no parallel in the United Nations or in other systems outside Western Europe. Parallels are simplistic, but commitment and energy at that level has been absent from the Canadian approach to hemispheric human rights mechanisms.

The Deputy Chairman: There are many fascinating elements to what you have said, Mr. Graham. However, let me ask you to go into more detail on your suggestions that the formulation of a strategy to sign the convention is not as straightforward as some advocates suggest. What were you getting at there?

Mr. Graham: I am talking about the dilemma that you around this table are confronting with the testimonies from different witnesses. The government side — justice, heritage and foreign affairs — is saying that there are immense and intricate difficulties to be overcome, particularly in relation to the provinces, while other witnesses are saying these difficulties are being exaggerated.

I appeal to the caveat I gave you at the outset, that I do not have great expertise in this field. However, it seems to me that even if the legal problems are not as great, or as complex, as government representatives have suggested, there is nevertheless a real problem in bringing the provinces onside. That is one of the reasons why bringing this forward to a solution is not going to be easy. It is also one of the reasons why I say toward the end of my statement that it ultimately must resolve itself into a question of the application of political will at a senior level.

Senator Jaffer: Perhaps I do not know enough about this subject. I was surprised to hear that Heritage Canada was leading the discussions rather than DFAIT. Can you say more about that? I know you touched on it.

Mr. Graham: I cannot elaborate very much because I am picking up on one of your previous witnesses, Mr. Warren Allmand, who made that point. There is n interdepartmental committee on human rights. The chair of that committee is an Assistant Deputy Minister in Canadian Heritage, which strikes me as odd. That means the normal accountability for moving ahead with an issue such as this is somehow diffused. It should be under the guidance and direction, it seems to me, of the Minister of Foreign Affairs, working in consultation with the appropriate colleagues.

Senator Joyal: I am happy to have the opportunity to hear from you because you could be helpful for the objective that we are pursuing.

If there is not enough political will, the will must come from somewhere. Since you are an NGO, you could be helpful in developing the network of other Canadian and inter-American groups that could make representations to the government. When I say ``to the government,'' I am thinking about how you both have been involved directly in government. I have read the biographical notes of Ms O'Regan and yourself and your distinguished careers in foreign affairs. You certainly know how it works, how governments are responsive to pressure.

How can we build the pressure from the private sector so that people in your position can relay those pressures in conjunction with the study that we are undertaking such that the government hears this is an important issue about which we are concerned?

Mr. Graham: The easy answer is to say that this is one of the reasons we were so happy to accept your invitation. However, that is not the real answer. It is how we can network with other organizations to ensure that the government will listen to these concerns. Our NGO, FOCAL, meets regularly with members of foreign affairs and CIDA. In this case, it is much more a foreign affairs issue.

In doing our homework for this meeting, we talked to a number of people at DFAIT. That dialogue has helped. It has helped us to form what we have said today. We have also been able to communicate our concerns. It is something that we can do again.

Both Ms O'Regan and I are going to the next meeting of the General Assembly of the Organization of American States, OAS, which takes place next month. This will not be one of the primary themes. However, it is one issue that people will be discussing. We will use that opportunity to talk to our government. We will use that opportunity to talk to the minister leading that delegation. It is also one of a number of opportunities that we have to dialogue with other members of civil society.

The OAS is beginning to open the door to representations of civil society and not just civil society in Canada and the United States where it is better organized. There is also an encouragement of civil society in Latin America and the Caribbean. We hope that this will be exactly the sort of meeting where some of this networking can take place.

We are, as I pointed out, not an organization that specializes in human rights. We do not have one of our officers working full-time on human rights issues. The organization led by Mr. Allmand and others have a more specific mandate for human rights and democracy.

We are very happy to talk to them.

Senator Joyal: The Democratic Charter is an important and useful tool that came out of the Quebec Summit. However, one of the major elements is that the governments — I include the Canadian government in that — cannot continue to negotiate in private liberalization of trade without representatives of various citizen groups. We know that it creates a gap. Because there are no communication lines and there are two blocks of people, there would be clashes.

It is very important that the governments — and singularly the Canadian government — have a platform for interested groups to take part in the building of the rapprochement that we want to attain by opening our borders.

We have not yet reached that level whereby there will be structural institutions that would help to bring rapprochement to a mature level. You play a very important role at this point in time, because Canada is the leader in bringing those countries to sign a free trade agreement. We have a special responsibility in that regard. We know that an enduring free trade deal with the Latin American countries and the other American countries is based on the respect of human rights, because democracy is inseparable from respect of human rights.

We seem to have put the emphasis on democracy, as we are doing in Africa now. It seems that the issue of human rights will come after, while in fact both must go together.

If there is someone who can testify to that, it is certainly you. You were ambassador to Venezuela at a time when the country experienced the kind of progress that was very encouraging. It was seen as one of the leading countries in South America.

How can you help us build a foundation for our study that would be helpful not only for the very specific issue we are discussing, but also for the overall process? The nurturing of the agreement is inseparable from the overall process that we are seeking with the Latin American countries.

Mr. Graham: Please correct me if I drift off the point. I am pleased to say that on this point the foreign affairs department has a very good record in this area. Using the Democratic Charter as a first example, DFAIT has gone out of its way since before the Windsor meeting in 2000 to consult with civil society. They have consulted with as many as 25 different organizations, including academic groups about what Canada would like to see in a democratic charter.

That process of consultation was ongoing through the various stages from the meeting in Windsor to that in Quebec City and then to the next general assembly in Costa Rica where the Democratic Charter came to a grinding stop. There were political and drafting difficulties. In fact, the charter was not very good when it got to Costa Rica.

Again, civil society in Canada and elsewhere was invited to consultations. Consultations took place here in Ottawa with Foreign Affairs and also under the auspices of the Organization of American States in Washington. I mention this because I think that it is an excellent precedent.

For a number of years, Foreign Affairs has had annual meetings on human rights globally. The last one took place two months ago. I attended wearing a slightly different hat. The meeting is divided into sections by continents. An afternoon was devoted to a discussion among representatives of the Department of Foreign Affairs and NGOs on the progress, the problems and the ongoing tragedies of human rights in different countries of Latin America. There were a selected number of cases because we could not cover them all.

There is already a good start in this area. We could give you the names of the appropriate people in the Department of Foreign Affairs. You could obtain much more detail about how these meetings are organized and the benefits of these meetings by talking to some of these officials. They have done a good job.

Senator Cochrane: I have a follow-up from Senator Joyal as well. I want to support what he is saying. I think you could help us. You have been through the ropes, so to speak. You can give us examples of how we can go about this.

You just mentioned how the Department of Foreign Affairs has had consultations in the past several months. You did not mention the Department of Canadian Heritage, which has the lead role in this area. Why not? Where are they?

Mr. Graham: I did mention them. I mentioned them as an anomaly in this process. I do not understand their role.

Senator Cochrane: Does anyone else understand?

Mr. Graham: I do not know the answer to that. However, I am sure that the Department of Heritage has an excellent answer that they would be pleased to provide.

Senator Cochrane: Maybe we should ask, Madam Chair.

The Deputy Chairman: That would probably be a sound idea.

Senator Cochrane: You just mentioned how you were at the roundtable discussions at the Quebec City Summit a year ago. I asked the previous witness and I will ask you as well to tell us about that. What were some of the issues that arose in the workshop discussions?

I am also interested in hearing your thoughts on Canada's progress in the last year with regard to implementing the Quebec City initiatives? Could you fill me in on that?

Mr. Graham: Yes. If you will permit me to give an answer that is beyond the human rights dimension, Ms Lamarche spoke on the benefits for human rights mechanisms at Quebec City. I will refer to other benefits.

One is certainly the declaration by the summit leaders — by the heads of government and heads of state on democracy. The OAS has probably the best record of any international organization in the protecting of democracy in its area. It has done something that is quite remarkable in the Americas, where sovereignty and keeping the high walls of sovereignty around one's country have been so important for so long. It has put teeth in some of the inter-American instruments on the protection and preservation of democracy. This goes back to just about the time 12 years ago when Canada joined the organization. The first real measure was taken in Chile in 1990.

There has been an accumulation of positive and practical jurisprudence in this organization over that period that has helped to sustain democracy when the commitment to democracy was beginning to weaken. The first measures taken were directed at specific coup d'état-type violations of the constitution of the democratic process in a country. There are other areas where democracy has not been altered by anything quite so direct or violent as a coup d'état — for example, the experience of Fujimori in Peru or President Chavez in Venezuela — but rather by the gradual stripping away of the checks and balances that are essential parts of the democratic infrastructure.

In Quebec City, this government, with others, put together a declaration that was passed to fill that hole — which was to say that any significant alteration of the constitutional process could, after a process of meetings, invoke penalties against the governments so involved. The Quebec City Summit was to fill that gap. The heads of state at Quebec City could only speak for the heads of state. They could not also speak — although it seems rather strange to say — for the Organization of American States. The Organization of American States had to erect its own charter as its own legal instrument so that it could be applied across the Americas. That was the most important stage because the Organization of American States is the instrument charged with keeping democracy in the hemisphere.

The Quebec City declaration also invited the Organization of American States to draft its own charter. That was, I suppose, one of the principal pluses of Quebec City. I will mention another one. The resolutions or the action plan of Quebec City runs to more than 200. This has been a constant problem of the last three summits of the Americas: People say we have to boil these down to a practical number of action points otherwise they will all be neglected. The action plan becomes very large because so many people have an agenda.

There are a number of points in the action plan this time that are being supported both by the Inter-American Development Bank and by the World Bank, which helps to make them real and indicates that there will be follow-up.

Another area is the new word in our dictionary, ``connectivity.'' This was a Canadian initiative to develop a connectivity research institute that is part of the IDRC. The IDRC was given money by CIDA to set this up in consultation with other governments in the region. Part of the idea is to try to bring the electronic age to the smallest and more remote communities of our hemisphere so they can have access to the libraries, health information, organizational information on how to deal with natural disasters, and so forth. That is another important benefit.

Another is something in which I have a particular interest: local government. There was a follow-up on local government. The first ministerial-level meeting after the Quebec Summit was held in LaPaz, Bolivia. The goal was to try to ensure that there is more attention, more decentralization, and more resources available in sensible ways to local governments. If the local governments are not empowered, the first brick in the democratic structure is not there and they are, of course, the level in Latin America that has an important determining effect on quality of life.

Senator Cochrane: You mentioned the penalties that may be initiated to get these states to come on line. Did the OAS put these in their draft?

Mr. Graham: Yes. Those penalties were incorporated in earlier instruments. However, they are incorporated again in the Democratic Charter.

The Deputy Chairman: Is it fair to say that you are in favour of Canadian ratification of the convention, taking a realistic view about the domestic political difficulties?

Mr. Graham: I am in favour, in principle, having said I do not understand the problems of the reservations well enough. Certainly, we would be a more effective player in the human rights area if we could join.

The Deputy Chairman: Your description of current social and economic trends in Latin America was grim — unfortunately not surprising, but grim.

You made a good case that a situation of considerable urgency is building. Does that make it more important now than it has been in the past 12 years that Canada should ratify, get in there and be a participating member of these mechanisms?

Mr. Graham: Yes, I believe that follows.

The Deputy Chairman: What do you think we would do once we got in there?

Mr. Graham: Forgive me for answering your question with a question, but have you had an opportunity to speak to any of the members of the Canadian mission to the Organization of American States?

The Deputy Chairman: I do not believe so, not in this round of discussions at any rate.

Mr. Graham: I believe they could give you some helpful answers in that regard.

My less well-informed answer is that once you are inside a club you are taken much more seriously if you have recommendations about how that club should improve its practices.

There is an excellent parallel: the whole history of Canada and the OAS. We sat on our hands on the outside for almost 100 years.We were invited before we were sufficiently sovereign to reply. The invitation from the Americans annoyed Whitehall at the time.

Our influence has since expanded and has been magnified enormously by entering the Organization of American States. Our entry to the OAS was important in a number of practical ways, as well as being an important symbolic gesture that said, ``At last we are not too good for you. We regard ourselves as real members of the hemisphere.'' We were seen as being aloof. That must have had detrimental effects on our multilateral and bilateral relationships with the region.

Senator Joyal: I should like to take this opportunity of your experience in the field, both of you having served in Latin America. You and your colleagues have witnessed the plight of human rights in many of those countries. In your opening remarks, you mentioned conditions that existed 20 years ago and what they will be in the future, considering what you have described as being a deeper gap between the social groups that threatens the cohesion of those societies. Are they not part of the political will, to put it in the broadest terms?

I do not wish to give the impression of throwing the ball to the other side. However, ambassadors are people with a great audience. They are respected because they are responsible people. They are in tune with the reality of the milieu where they represent Canada's interests. Regularly, they call the attention of the authorities of the department to important issues locally, in the countries where they are active. There is a joint effort of those involved to create the political will on the part of the government to bring about that kind of sober second thought.

We can spend millions of dollars to try to help people. However, if we have the right legal framework on human rights that also helps significantly.


As the saying goes, God helps those who help themselves.


Sometimes you need to have the support of a legal framework to protect human rights to ensure that things happen.

How could that be part of the general effort? In the interests of Canada as such — not only of our trade interest, but our general interest — when those societies are stable, business is better. The two are indistinguishable. They are part of the growth of society.

Having been in that position, how would you recommend using the force that represents the ambassadorships in those countries? How are we best able to convey and relay that message?

Mr. Graham: That is a difficult question, senator.

Many of my colleagues have made important contributions to policy. Where they see a problem and a solution, they will advance their version of the solution to the political level. Sometimes they are screened out. Such is the nature of large bureaucracies that not everyone's good idea gets through the system to the person who would makes the decisions. Sometimes it happens. As you point out, senator, it is more likely to happen if a number of colleagues are acting in concert. There are a number of examples of that happening.

As in any situation, there are some ministers who like to have these windows opened while there are others who do not like them to be quite as open. There have been times when people have been concerned about the don't-shoot-the- messenger syndrome.

When you step outside the harness of government, sometimes you do not have the same access to communication, but you have a greater freedom to communicate. Thus, there are those two routes.

I do not think I have adequately answered your question, senator.

Senator Joyal: When we joined the OAS in 1990, you were in Latin America at that time, were you not?

Mr. Graham: Yes, that is correct.

Senator Joyal: Ms O'Regan, I understand that you were in Venezuela; is that correct?

Sharon O'Regan, Deputy Director, Canadian Foundation for the Americas, FOCAL: In 1991, I was in Venezuela.

Senator Joyal: I read from your biographical note that you, too, were in the field.

Did you understand at that time that we were serious about joining the instruments when the government said that we would study it and come forward later on? Was there a diplomatic way of saying, ``We will bury that under the shelves of everything else''?

Mr. Graham: That was a fascinating time. There was no question in my mind about the seriousness of this enterprise.

There was consultation. It was an excellent example of ideas moving backwards and forwards, of ideas at the official level in Ottawa, consultation going out to a number of posts. There was a useful, fertile dynamic at the time that Canada joined.

Of course, there were different points of view. There were those who said we would join another organization that is controlled by the Americans — did we really want to do that? It was well known that Canada was considering this. A number of Latin American countries said, ``Come on. We need more balance. We need another point of view. We very much want you on board.''

I can say that, from many points of view, that decision was taken seriously and a number of people, including the ambassadors in the region, were consulted.

Ms O'Regan: From 1991 to 1995 I was a foreign service officer in Peru and Bolivia. At that time I did believe strongly in the momentum of the Department of Foreign Affairs and the Organization of American States to become more and more engaged in the inter-American process, particularly with respect to human rights.

Having visited many prisons in Latin America and having represented Canadians abroad in a consular perspective — both legally and in consular affairs — I could say that Canada has made substantial gains in influencing other governments with their human rights records — particularly with our engagement in the United Nations and our respect for the covenants of human rights. Also, our Canadian Charter, which protects us and entrenches our human rights in law, has given us a great advantage as emissaries in the Americas on the human rights file.

I also had the experience to be a political officer with Foreign Affairs in supporting the Andean Region — Colombia, Venezuela, Ecuador, Peru and Bolivia — and had occasion to deal for three years with Canadian human rights groups that were working in the field. I have been on both sides of the coin in terms of the human rights annual interventions that the Department of Foreign Affairs would have in January and February prior to the United Nations meetings in March with the non-governmental community. I have also been in the non-governmental community approaching the Department of Foreign Affairs about human rights records of specific countries.

I can say that our reputation is strong, but it would be stronger if, indeed, we were onside with human rights instruments that strengthen our ability to give voice on the issue. I am not a lawyer and I am not familiar with the numbers of reservations the Canadian government would make upon signing this convention. However, our credibility wanes when we attempt to lobby other governments on their human rights records and we, indeed, have signed on to other conventions but not necessarily the one for which we are lobbying them within a region.

One point that I would like to make is that there are many signatories to this agreement, but being a signatory does not necessarily mean that the human rights record improves. There is to date no mechanism for compliance with these instruments. We feel it is important for Canada to engage in the Americas and strengthen our capacity to influence governments to progress on the human rights file, although we would hope that signing covenants would indeed allow for this strength. However, my question would be more towards the possibility of implementing mechanisms to make governments conform to the agreements that they have signed.

The Deputy Chairman: I would like to shift gears a bit here. I was struck listening to both of you by the wealth of practical experience on the ground that you have had.

Practically speaking, it is usually wise in these matters to think about what you, Mr. Graham, called the most powerful member of the OAS — namely, the United States. As we know, current policy in the United States certainly does not favour American involvement in international justice mechanisms, the International Criminal Court being the most visible recent example.

Can you give me any sense at all of how the United States views the adherence of other countries such as our own to the convention, to the Latin American mechanisms?

Mr. Graham: As you pointed out, the level of interest in Washington in this sort of multilateral instrument is a good deal lower now than it was during the previous government. Beyond that, I do not think I can give you a good answer to your question.

The Deputy Chairman: Are you aware of any long-standing or even recent American campaign that says ``not only are we not interested, but we do not want you to be interested either''?

Mr. Graham: I doubt that any pressure of that kind is directed to us by the United States. I do not think that is the case at all.

The Deputy Chairman: Thank you. It may seem like a foolish question, but it crossed my mind.

Senator Joyal: I wanted our witnesses to share their reflections on the basis of the experience. According to The New York Times, The United States has announced that it will withdraw its signature on the pact for the International Criminal Court. I read that not only will they not proceed with the ratification but they will withdraw their signature from the treaty. It sends a bad signal with regard to public opinion. It sends a signal that one can sign and withdraw one's signature.

I think that is an important element of international behaviour, particularly in respect of the kind of rights that are supposed to be covered by that court: war crimes, genocide and crimes against humanity. These are the most serious crimes that a country can address. We are not talking about discrimination on social conditions. We are talking about the right to life and the right to be a human being with a different colour, with a different background, with a different religion and so on.

As you have said, a country has an understanding of its international commitments to human rights. I feel that when such a message is given — that this is of no interest to the United States — for whatever reasons, it sends tells the rest of the hemisphere that they do not need to sign that pact either.

I checked the list of countries that have signed and intend to ratify that convention on the International Criminal Court, and I did not see many Latin American countries on that list.

As you said yourself, some of them are not very anxious to improve their status. When such a signal is sent, it does not invite anyone to improvement — especially with the background of the military regimes that have existed in some of these countries in the past 20 years. I think you know which ones I have in mind.

These are more reasons for Canada to sign and ratify, because a gap is created among the countries that fight for democracy. The definition of the content of democracy is an extensive concept. If it is to be meaningful, a country must have objectives and a commitment. When there is no such commitment for fundamental respect of rights, we question what we should be doing internationally as a country.

Mr. Graham: This is a very important point. I agree that the signal that is being sent by withdrawal of signature from the International Criminal Court is a very serious one. This is in addition to the Americans already appending to their original signature a number of major reservations. They were fairly secure.

I very much take your point that in these circumstances it is all the more important that other voices speak clearly and commit themselves clearly on the importance of keeping the integrity of these instruments and institutions.

The Deputy Chairman: On that profound note, I want to thank both of you, Mr. Graham and Ms O'Regan, for being here. You know what it is like there. It makes a big difference to us to hear your perspective. We are very grateful to you for having taken the time to prepare your presentation for us. We have appreciated having you with us.

The committee adjourned.

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