TABLE OF CONTENTS

CHAIR’S FOREWORD

I. INTRODUCTION

1. The Inter-American Court of Human rights.
2. Canada’s participation at the Inter-American Court
3. The situation in Canada since the May 2003 Report

II. THE COMMITTEE’S CONCLUSION AND RECOMMENDATIONS.

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 CHAIR’S FOREWORD

Updating the work done by this Committee in its May 2003 report on Canada’s role in the Organization of American States and its adherence to the American Convention on Human Rights, this report continues to advance that agenda and to call on the government for action.   

It is time that the government recognized the importance of the regional human rights convention and took real steps towards its ratification.  Canada has a crucial role to play in the protection and promotion of democracy and human rights throughout the Americas.  This role cannot be taken seriously if Canada continues to stand on the sidelines – Canada must lead by example. 

 Two years have passed and no sign of progress or action of any kind is noted.  It is taking too long and has given the public little indication of its progress on this matter.  Despite some problematic issues, our May 2003 report indicated that there was widespread public support for ratification among those concerned with the protection of human rights in Canada and abroad.  As a result, this current report stands as a call to action for the government, both to create a clear time frame for consultations between the various levels of government, and to widen these consultations to include public input and participation. 

With the thirtieth anniversary of the Convention in 2008 on the horizon – now is clearly the time for action.   

In closing, I would like to particularly thank Carol Hilling for her valuable assistance and unique professional expertise in the preparation of this report.

Raynell Andreychuk
Chair

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I. INTRODUCTION 

In November 2004, the Committee was authorized by the Senate to monitor issues relating to human rights and, inter alia, to review the machinery of government dealing with Canada’s international and national human rights obligations. Within this mandate, the Committee continued to study the issue of Canadian adherence to the American Convention on Human Rights. 

As a member of the Organization of American States, Canada has ratified three Inter-American human rights treaties: the Convention on the nationality of Women, the Inter-American Convention on the Granting of Political Rights to Women, and the Inter-American Convention on the Granting of Civil Rights to Women.  All three Conventions were ratified on October 23, 1991, shortly after Canada joined the OAS.  However, there are several other Conventions pertaining to the protection of human rights in the Americas, none of which have been ratified by Canada.  In particular, Canada has yet to ratify the main Inter-American human rights treaty: the American Convention on Human Rights. 

In May, 2003, the Senate Standing Committee on Human Rights presented to the Senate its report “Enhancing Canada’s Role in the OAS: Canadian Adherence to the American Convention on Human Rights”. In this report, the Committee recommended that the Government of Canada take all necessary action to ratify the American Convention on Human Rights with a view to achieving ratification by July 28, 2008, which will mark the thirtieth anniversary of the entry Into force of the Convention.  Two years have gone by since the presentation of the Committee’s report to the Senate, but Canada has not yet ratified the Convention.   

The Committee has updated the information contained in its 2003 Report in order to ascertain whether any major changes that should be cause for concern have occurred in the Inter-American system for the protection of human rights since May 2003, particularly with respect to the American Convention on Human Rights and the Inter-American Court of Human Rights.[1]

 

1. The Inter-American Court of Human rights 

This research revealed that the Inter-American Court of Human Rights continued to strengthen its role within the OAS system for the protection of human rights. The Court issued a number of decisions which further clarify the interpretation of the American Convention on Human Rights and in the process, assist us in understanding the scope and content of what would be Canada’s international obligations as a party to the Convention.  

In particular, the Court clarified the legal basis of its jurisdiction to monitor compliance with its Orders and Judgments and the States’ obligations in this respect.  Contrary to the recommendations of such international human rights bodies as the Human Rights Committee of the United Nations and the Inter-American Commission on Human Rights, the decisions of the Court are legally binding.  As indicated in the Committee’s 2003 report, compliance with the Court’s decisions has significantly improved over the years because the Court has taken steps to ensure it.[2] 

 In the Baena Ricardo et al. Case (270 workers vs. Panama), judgment of November 28, 2003[3], the Court reminded States party to the Convention that their obligations do not end with the Court’ decision, they must also ensure the effectiveness of decisions on reparations[4]. 

The Court’s jurisdiction with respect to monitoring compliance with its decisions finds its legal basis in the American Convention on Human Rights, the Statute of the Court as well as the provisions of the Vienna Convention on the Law of Treaties concerning the interpretation of international treaties.   

Consequently, the Inter-American Court’s work does not end with the issuance of a judgment.  The Court continues to monitor the implementation of the reparations it has ordered until the State has fully complied.  As indicated in the annexed update, the State must report to the Court on the steps taken to comply with the judgment, and the Inter-American Commission as well as the victims may comment on the State’s report.  If the State has not fully complied with the judgment, the Court issues an order to comply and may provide instructions.  The State reports on the Order and again, the Commission and the victims provide the Court with their comments.  This procedure is repeated as long as the State has not fully complied with the Court’s judgment and orders.[5]  In putting such emphasis on the issue of State compliance with its decisions, not only is the Court ensuring the effectiveness of human rights protection, but it is also reinforcing its credibility as the international human rights tribunal for the Americas.   

In November 2003, the Court further amended its rules of procedure relating to the appearance of alleged victims independently of the Commission.  Whereas originally, the alleged victims were represented by the Inter-American Commission on Human Rights before the Court, since the year 2000 they can choose to be represented by independent counsel, although the application to the Court is still made by the Commission.  The Court has clarified the rules of procedure and the time frames.    If the alleged victims choose independent representation, their legal counsels must be identified in the Commission’s application.  The Committee has noted that in virtually all cases heard by the Court, alleged victims had chosen independent representation, which allows them to put forth legal arguments that are not necessarily raised by the Commission.  In facilitating access to the Court for people alleging violations of their human rights and allowing them to present their own case, the Inter-American Court is following the lead of the European Court of Human Rights, although the differences in the two systems do not allow direct access to the Inter-American Court for the time being.   

In short, this is a serious and respectable court and Canada’s credibility as a world leader in human rights protection can only be enhanced by the ratification of the American Convention on Human Rights and the recognition of the jurisdiction of the Court.

 

2. Canada’s participation at the Inter-American Court  

In September 2003, the Court issued an advisory opinion on the Juridical conditions and Rights of Undocumented Migrants[6].  The Committee was pleased to find that the Government of Canada intervened to assist the Court in interpreting the principles of equality before the law, non discrimination, and equal protection of the law when applied to the situation of migrant workers who may be in a country illegally.  The Committee believes that Canadian experience with respect to the protection of human rights can contribute to strengthen the Inter-American system for the protection of human rights.  It was also the opinion of several of the witnesses who appeared before the Committee during its 2002 hearings as well as that of many of the governmental and non-governmental organizations Committee members met when they travelled to the seat of the Court in Costa Rica.[7]  However, although Canada’s participation in the work of the Court as amicus curiae is commendable, it falls short of the role Canada could play as a party to the American Convention that accepts the jurisdiction of the Court in contentious matters.

 

3. The situation in Canada since the May 2003 Report 

Two years later, we do not seem to be much closer to ratification of the American Convention, although there are some hopeful signs. On December 16, 2003, the Department of Foreign Affairs and International Trade held a multi-stakeholder meeting in preparation of the Special Summit of the Americas.  According to a document posted on the internet site of the Department, several participants raised the issue of Canadian ratification of the American Convention on Human Rights and then Minister of Foreign Affairs Bill Graham indicated that the Department was “re-examining the different possibilities for signing the Convention”:

 Minister Graham mentioned that Canada already contributes greatly to the human rights system. Last year, Canada supported a resolution of the OAS to increase the annual budget allocated to the Inter-American Human Rights Court and Commission. We have also funded a variety of projects, such as the creation of a network of ombudsmen, and we have had an elected member on the Inter-American Judicial Committee since 1992. Therefore, the fact that Canada is not yet party to the Convention is not impeding our leadership on human rights issues. However, Minister Graham agreed that our voice could have more weight if we were party to the Convention.

 

Currently, the Department is re-examining the different possibilities for signing the Convention, but there is still a large number of caveats and we would need to have five reservations and seven statements of understanding in order to sign and/or ratify. Many of the provisions of the Convention fall under provincial/territorial jurisdiction and there are ongoing consultations with them on this issue. [8] 

The Committee is pleased to note that according to this statement, provincial/territorial/federal consultations were taking place in December 2003, although at this time, it is not known whether these consultations are still ongoing.  This issue will be looked into further by the Committee. 

However, the Committee remains concerned that without a timeframe, and given the secrecy surrounding the federal/provincial/territorial consultation process, the thirtieth anniversary of the Convention will go by and we will be watching from the side lines. 

 The Committee noted that the document published by the Department of Foreign Affairs and International Trade on its internet site refers to a proposal by the National Association of Women and Law:  

The National Association of Women and Law proposed that a comprehensive dialogue take place with the federal, provincial and territorial governments and interests groups in order to arrive at a solution that would be acceptable for all. In addition, they proposed a conditional statement of understanding, by which Canada's signature of the Convention would become null should the interpretation of some of the language change over time.

Such a dialogue would allow for the government to benefit from the experience of interested organisations that have studied the Convention and have ideas as to how to ratify the Convention while addressing the concerns it raises.   For instance, in November 2003 the National Association for Women and the Law published a discussion paper titled Ratifying the American Convention on Human Rights: The Stakes for Women[9], which examines the issues of abortion, reproductive health and women’s human rights and compares the respective advantages and down sides of interpretative declarations and reservations.  It is important to underline that, as indicated in the paper, their discussion is based on a commitment to secure ratification of the Convention:

[…] the discussion within the Canadian women’s movement and other human rights advocacy groups around the desirability of ratifying the ACHR ought to be grounded on the commitment to strengthening the inter-American human rights protection system and securing Canada’s ratification of the ACHR. 

Other witnesses before the Committee indicated that they would continue to study the areas of concern and look for solutions.  Public participation in the consultations and the drafting of any reservation or interpretative statement could be implemented through the Human Rights Program of the Department of Canadian heritage which acts as the Secretariat for the federal/provincial/territorial Continuing Committee of Officials on Human Rights. 

Finally, the Committee is somewhat concerned about the position of the Department of Foreign Affairs and International Trade which seems to be that there is no consensus in Canada as to ratification: 

Furthermore, there is no consensus among the various interest groups in Canada as to ratification. In particular, the notion of life beginning at conception is problematic for some women's associations and contradicts existing domestic laws on abortion. 

In its 2003 report, the Committee indicated that there was wide support for such ratification among Canadian individuals and organisations interested in the protection of human rights. Although witnesses generally felt that some interpretative declarations may be necessary and although the general consensus was that the Convention should not be ratified without a reservation to article 4(1) of the Convention they were in favour of ratification.  The issue is not whether Canada should ratify the Convention but rather what steps do we need to take to ensure that we do it in a manner which reflects Canadian value and is compatible with Canadian law.

 

II. THE COMMITTEE’S CONCLUSION AND RECOMMENDATIONS 

The update of the information contained in the Committee’s 2003 report has not revealed any reason for the Committee to withdraw any of the recommendations it made in 2003.  If anything, the Inter-American Court of Human Rights has grown stronger and more efficient.  We need for the Government to get on with the process of securing provincial and territorial support for ratification of the American Convention on Human Rights. We need for the process to be timely and public.

 

Recommendation

Further to the recommendations made in its 2003 Report, the Committee recommends that the Government of Canada establish a timeframe for the consultations between the federal provincial and territorial governments and that this time frame be made public. 

The mystery surrounding the work of the federal/provincial/territorial Continuing Committee of Officials on Human Rights deplored by the Committee in 2003 remains unexplained.  In short, Canadians are kept in the dark about discussions concerning an international treaty pertaining to the protection of their human rights.   They are kept in the dark about discussions concerning provisions of the Convention which raise issues of compatibility with Canadian legislation, such as article 4(1) of the Convention pertaining to the right to life.  It has now been fifteen years since Canada became a member of the OAS and as such, came in a position to ratify the American Convention on Human Rights. It may be time for the Government of Canada to seek the assistance of the Canadian public. Many of the interested organisations are already known to various Departments as they are invited to such events as the multi-stakeholder meeting referred to earlier.  The Government of Canada is very active in the promotion and implementation of democracy in the Americas.  Allowing public participation in the consultation process towards ratification of the American Declaration would be an important step for democracy in Canada.

 

Recommendation:

The Committee recommends that the consultations and discussions concerning the ratification of the American Convention on Human Rights be expanded so as to include representatives of the Canadian public and Canadian human rights organisations.