Proceedings of the Standing Senate Committee on
Human Rights
Issue 3 - Evidence, October 1, 2001
OTTAWA, Monday, October 1, 2001
The Standing Senate Committee on Human Rights met this day at 4:00 p.m. to examine issues relating to human rights, and, inter alia, to review the machinery of government dealing with Canada's international and national human rights obligations.
Senator A. Raynell Andreychuk (Chairman) in the Chair.
[English]
The Chairman: I see a quorum, so we will start.
Before we get to our witness, I want to advise the members of the committee that we had indicated that we would be videotaping our sessions. The request certainly went in to CPAC and we were proceeding on the assumption that there is merit in that as an educational tool for the citizens and that the issues of international law are misunderstood not only in the general public but in a lot of the professional groupings also. I must say that I have been getting quite a bit of feedback that people are watching and are finding it interesting, particularly in trying to understand how the international covenants comply with our laws - how they are put into place here. It was a thread that we were weaving; it was not just one session.
I was contacted by the clerk to indicate that we had lost our videotaping, because there were others - most notably, the Social Affairs Committee - moving to Monday. My reply was that was our legitimate spot, we had requested it, and we should continue. Nonetheless, I understand the powers in the Senate moved one of the cameras over to the Social Affairs Committee, leaving a special study and a new committee with videotaping and we were precluded.
A letter has been prepared which I am prepared to either send on my own behalf or on behalf of the committee questioning not the fact that we do not have the video but the fact that we did not have a fair and proper chance to make our case and to have a discussion with the leadership, and that, in my opinion, the process is one to be revisited by the leadership. I would like to pass the letter around. If you are in agreement, we would have a committee decision to send that letter under my signature. I will let you take some time and we will deal with it at the end of our deliberations.
Senator Ferretti Barth: Is it possible to have it in French?
The Chairman: It was drafted originally for me. As I indicated, I thought it would have more weight if it came from the committee. That is why it has not been translated. I do apologize for that.
Senator Ferretti Barth: It's okay. There is no problem.
The Chairman: It will not go out until it is translated. We will address that at the end of our committee.
I am very pleased that we have today Marilou McPhedran, who is the program director from the International Women's Rights Project at York University. A short brief was forwarded, which all members received, so I will not take the time of the committee except to welcome you here and to tell you that our reference is to examine issues relating to human rights, and, inter alia, to review the machinery of government dealing with Canada's international and national human rights obligations.
In our first phase we are tasked to set our terms of reference and from that, to determine the areas in the human rights field that have bearing on the machinery of human rights we wish to study as we go forward. We have been asking interested persons, eminent scholars and any others who feel they have something to contribute to shaping our work. This is not the phase where we are actually getting into the in-depth study of an area. We are asking for advice and information about varying sectors within the human rights study field.
With your expertise in women's issues and the books you have written, we thought you would be an admirable witness. Perhaps you have an opening statement. I do not know how much time you have been allotted, but usually we like about ten minutes, and then, if you are free, to answer questions from the committee.
Welcome.
Ms Marilou McPhedran, Program Director, International Women's Rights Project, York University: Thank you very much, Madam Chair, and thank you personally and directly for the invitation. I very much appreciate it.
I want to speak with you today about legal literacy. I want to focus on the international covenant, one of the major United Nations human rights treaties, the Convention on the Elimination of all Forms of Discrimination Against Women. I will probably shorten that title and call it either "the Women's Convention," or perhaps CEDAW. This women's convention is really a prerequisite for using the model of legal literacy in citizenship and the building of democracy both within our own country and internationally, and, of course, what that means from the angle I am approaching today, the implementation of women's human rights.
We have done the articulation. We have done the drafting and the redrafting with one exception, to which I will speak later, and it is now time to focus on implementation. That is really one of the most exciting aspects of being invited to be here with you today. My sense is that this standing committee will make a very significant contribution to helping us make that shift to flowing more resources and more attention to raising our knowledge level, our legal literacy, around our international human rights treaties.
I would like to quickly put the Women's Convention in context. UN world conferences, in addition to the ones that have been actually dedicated to women, have had a very significant impact on women's lives all over the world. Following the adoption of the 1967 Declaration on the Elimination of Discrimination Against Women, which was the precursor to the Women's Convention, was the conference on human rights in Tehran in 1968. In Rio de Janeiro in 1992 and in Vienna on human rights in 1993, for the first time, women's rights were officially recognized as human rights, setting the course for integration of human rights and development in the women's agenda for Beijing. Shortly thereafter, in Cairo, the population and development conference in 1994 emphasized women's role in development.
These conferences can all be seen as markers along the path to human rights becoming central to women's struggle for equality all over the world. The Beijing Declaration and Platform for Action are imbued with human rights terminology and principles referring specifically to the major human rights treaties of the United Nations, but, particularly, to the Women's Convention and its related general recommendations from its monitoring committee with 23 experts appointed by the UN. In my presentation I will refer to that monitoring committee as the CEDAW committee.
It is relevant to note the declaration and the platform coming out of Beijing have not carried any legal obligations and they do not contain any monitoring mechanism, yet they are probably more at the forefront - for public, and, indeed, many parliamentarians - as the primary commitment to women's rights made by our country. They are very important, but they do not have the force of law. For this reason the Women's Convention, CEDAW, is a very useful and, I would argue, more useful frame of reference for monitoring the implementation of human rights commitments made by this country in a range of major human rights treaties.
As a formal human rights treaty with its attendant mechanisms, CEDAW is an essential tool not only for parliamentarians but also for advocates and diplomats. It is an aid for assessment for years to come because it articulates and reinforces the human rights that are at the core of the Beijing platform and the ``Beijing Plus Five" agreement, which is the right not to be discriminated against simply because one is female. There is some considerable irony to the fact that the Beijing platform and the ``Beijing Plus Five" platform are more widely known because it is, in fact, the convention that is the instrument with greater potential as the legal foundation for implementation strategies in the longer run.
I am here to urge you, honourable senators, to invite more presentations on the Women's Covenant and its UN reporting process, the role of its monitoring committee, and the way in which CEDAW can be used within our own country to inform and strengthen our Charter of Rights and Freedoms, our national guarantees and our constitutional guarantees for the women and girls of this country.
Kofi Annan said very recently that in the course of the 20th century great strides were made in defining the universal norms of gender equality. The Convention on the Elimination of all Forms of Discrimination Against Women stands as a milestone in that quest. Since its adoption by the United Nations General Assembly in December 1979, this women's bill of rights has taken its place as a key pillar of international human rights law. As we enter the 21st century, it is time to implement these norms. This is taken from the Secretary-General's introduction to the recent publication of the Optional Protocol to the women's convention. This convention is focused on outcomes and impact and implementation. It is substantive. It focuses on "elimination of discrimination."
This is a very interesting title to have for a treaty and one of the things that makes this particular treaty stand out is that it covers both the public and the private spheres of women's lives. When one looks at the source of discrimination that women and girls experience that create very significant and often terrible barriers to fulfilling their potential as human beings, often that discrimination operates in the private sphere of their lives. Many of the other treaties do not address the private sphere.
Canada, as you well know, is a signatory to a number of key UN human rights treaties, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and, most recently, the Convention on the Rights of the Child. Of course, we took a very strong leadership role and have strong commitments in developing and implementing the International Criminal Court.
Commitments made by UN member states whose governments have ratified the convention and the other covenants to which I have referred are legal obligations. They continue to operate when there are changes in the governing party and even if the form of government in a member state changes, for example, as happened through the transition in Eastern Europe in countries like Ukraine. Unlike other major human rights treaties, the convention provides to women and girls the acknowledgement that their human rights are violated in their private as well as their public lives. Policy and law reforms guided by the convention encompass both aspects of women's lives and women citizens are often the instigators of the changes through their research, advocacy and tenacity.
The legal literacy of women's NGOs and their participation in UN processes have risen dramatically since the first World Conference on Women 26 years ago. At that Mexico City World Conference on Women, NGOs held their first parallel conference to the official UN proceedings - something that is now very familiar to us but which is a relatively recent development. These NGO fora have nurtured global research and advocacy initiatives by NGOs that have emphasized accountability of governments to their citizens.
Women's NGOs have pushed for a paradigm shift away from the more exclusive model of armchair diplomacy to implementation of their treaty rights and have initiated the practice of writing shadow reports or alternative reports to the expert committees established by the UN to monitor the major human rights treaties. These reports often demonstrate very clearly the legal literacy skills in the reports, and, to be honest, they often diverge significantly from those filed by the national governments. However, the CEDAW convention has specific measurements to assess the achievement of the rights espoused and it has potential not yet realized for us in this country.
In 1998, you will recall that a coalition of NGOs found their way to Geneva and made such a report which had a very powerful impact on the monitoring committee that heard their report. Also in 1998, Senator Wilson joined us at York University when we convened the first meeting in Canada to focus exclusively on the Women's Convention. At that meeting we tabled a discussion paper which we had asked Sheila Day to write. Briefly, in that report she said that when national women's NGOs move into international work, we also move into connection with women's NGOs from around the world. This is exciting, but there are also some problems to reflect on as national NGOs become more involved. Until recently, human rights work at the United Nations has been carried out principally by international NGOs such as Amnesty International and Human Rights Watch. In the field of women's human rights, there are also international NGOs (INGOs). Some of the most influential of these are organizations that employ staff on a full-time basis to interact with the United Nations to advocate for women. The organizations and the women in them are knowledgeable about the United Nations system, plugged into the United Nations bureaucracy and expert on international human rights law. However, they are not plugged into grass roots organizations. Often they are not linked with the most disadvantaged women.
We have to find a way to curtail this expert exclusiveness. We have to set aside assumptions that only those engaged professionally in human rights advocacy at the UN know enough to work effectively in these fora. The Canadian governmental machinery must become more open. It must allow for input from citizens, NGOs and individuals much earlier in the process.
One of the ways in which we are trying to strengthen the legal literacy and the ability to conduct evidence-based advocacy to be more effective in the implementation of human rights is through the impact study. You received a poster that is an example. I will not spend a lot of time on it, but I want to bring to your attention that is the first time there has ever been a completed impact study where there was a partnering between academics, experts and NGOs in ten countries.
It was a pilot study primarily funded by the Ford Foundation. It occupied almost three years of my life, so I lived and breathed it and worked with some absolutely marvellous organizations and individuals in these different countries. What we did - and I bring this to your attention as a way of gathering information from the grass roots - was established a national correspondent in each of those ten countries. That national correspondent was chosen by our international advisory committee, including the Division for the Advancement of Women at the United Nations and also UNIFEM. However, to be eligible to be a national correspondent, each expert had to be able to demonstrate ongoing, close involvement with at least one woman's NGO in her respective country.
We looked at four main areas. You can see in the poster that was given to you that is how it is divided into the four parts of the questionnaire. We concluded that all of the countries in this study, because they had ratified the convention and had been using it, had to varying degrees implemented it and that there were various ways in which that implementation had impacted on the lives of the women and girls in those countries.
Implementation of the convention does not necessarily occur only at the national level. Domestic applications of the convention occur in courts, legislature, the media, and local communities. This is also evident in the poster that was given to you earlier.
We have something else that we would like members of this committee to attend to that is related to the women's convention. That is the new Optional Protocol to this convention. Canada is not there. We have not signed it, we have not ratified it, but 68 other countries have. It took ten countries to activate the Optional Protocol. It is now operating. Of course, it is optional, so countries that are signatories and that have ratified the convention itself are not bound to allow this Optional Protocol to be used by their citizens. They can decide for themselves whether to opt in or opt out.
The use of an optional protocol attached to a specific UN human rights treaty by a Canadian woman is not new. I know that Professor Toope mentioned this. I will not go into detail, but I will raise with you that it was through a complaint to the UN Human Rights Committee under the International Covenant on Civil and Political Rights that the Canadian Aboriginal leader from the Tobique Reserve in New Brunswick, Sandra Lovelace, finally won recognition for her generation of Aboriginal women, and that section 12.(b) of Canada's Indian Act violated her human rights.
The Human Rights Committee ruled that Canada was in violation of article 27 of the International Covenant on Civil and Political Rights because the effect was to deprive Sandra Lovelace of the right to enjoy her culture. Since her complaint was made, Aboriginal women joined other Canadian women in the grass roots struggle to secure the constitutional guarantee of equality in sections 15 and 28 of the Canadian Charter of Rights and Freedoms that include equality under the law.
I am here today to urge you to encourage the machinery of government to move more rapidly towards ratification of the Optional Protocol.
Is that untypically diplomatic of me, Senator Wilson?
In the very early days of drafting the convention in 1973, Canada was joined by Netherlands and Sweden in making the point that Canada suggested that careful thought be given to setting up a reporting procedure within the Commission on the Status of Women and a method for handling complaints by states and individuals regarding violations of the new convention; but, in 1979, the General Assembly of the UN opened the convention for ratification without an optional protocol. The next major step toward the Optional Protocol did not come until 1991, when the Secretary-General himself recommended development of such a procedure for the Women's Convention.
In 2000, the special advisor to the UN on gender issues, Angela King, noted that the adoption of an optional protocol on a right of petition was one of the commitments made by states at both the 1993 Vienna Conference on Human Rights and the 1995 Fourth World Conference on Women. It thus represents one of the major accomplishments of the realization of the objectives set out in the Beijing Platform for Action.
While the convention has been in force for Canada since January 1982 - and Canada was the first country to propose a complaints procedure for this convention - we have not yet signed the Optional Protocol. To date, 68 countries, as of September 22, have signed the Optional Protocol.
In the reporting procedure for the monitoring committee this will greatly expand the option for women, both individuals and groups of individuals, when they have exhausted their domestic remedies within their respective countries, to take their complaint to the Women's Convention monitoring committee, not to have to, shall we say, massage the complaint in order to fit under one of the other optional protocols attached to one of the other conventions - which are very good and we want to follow them. We want to integrate their use with the Women's Convention, but they are not directed to women and they do not have specific acknowledgement of the discrimination that operates in the private lives of women.
I have some background on this, but I think my time is running out. Let me just end by saying that the Optional Protocol can be a means of a number of achievements: Number one, it can be a means of catalyzing changes in national law and practices - I do have some examples if people wish to ask about them in the question period of Canadian cases where Canadian courts have utilized the convention this way - and to motivate governments to implement the convention and effective remedies to avoid being called to account at the international level.
Also, it can be a means of providing redress for individual victims and groups of victims of human rights violations. It can improve the understanding of the rights and obligations in the convention by creating an avenue for the CEDAW committee to interpret the convention in greater detail through its process of general recommendations. It can be a means of developing progressive interpretations of discrimination standards that can inform national courts and lawmakers in addition to the other human rights treaties. It can be a means of providing detailed guidance to governments that are seeking to meet their obligations under the convention.
The Chairman: Before I turn to other questioners, you indicated that Canada has not signed the Optional Protocol though it has been in place for quite some time. In your opinion, why is that?
Ms McPhedran: I must clarify that the convention has been in place for some time and we have been using it. We have been reporting under that, but the Optional Protocol was actually not activated until October of 1999, so it is a relatively short period of time that we have had this option.
I have asked Minister Fry about Canada not being a name on the Optional Protocol as yet and she has explained to me that, very understandably, the process of the federal-provincial consultation that must take place has not been completed. I have also asked how much time and attention is being put to moving this process along. It is certainly my impression that this is not very high on the list of priorities.
Senator Wilson: First of all, a word of congratulations about your impact poster. That is a very good way of communicating information in short order, visually and in other ways, to those of us who are not really expert on the issue. Good for you.
Ms McPhedran: Thank you. That is actually the executive summary. We did not do an executive summary. We just did the poster instead.
Senator Wilson: It is a new way of doing it and it is very effective.
Concerning your comment on the impact of CEDAW on the most disadvantaged women, who are those women in Canada and what do you perceive as the effect of that on them?
Ms McPhedran: We must bear in mind that Monica Townsend's work considered exactly the question of who the most disadvantaged women in Canada are. Her most recent figure is that in 2000, 19 per cent of the adult women in this country are poor - poverty-stricken. That is terribly and painfully close to one in five women in this country.
We are also very mindful of the fact that Aboriginal women - and indeed, men and children - when factored into the human development index always measured below 60th, in terms of Aboriginal peoples. We all know that Canada has fallen from its lofty perch as number one, certainly due largely to the massive cuts in our social services programs across this country in health, education and other social services. That has had a huge impact. Though the rating has dropped overall, the impact that is experienced by Aboriginal women in this country is profoundly worse.
Senator Wilson: Could you draw the line for us a little more strongly in terms of the convention and the cuts to social programs? What is the connection?
Ms McPhedran: Well, there are a number of the articles in the convention concerning the manner in which we have both public and private spheres. Let me just quickly give a couple of examples.
The original convention itself, when passed in 1979, made no reference to violence against women. The term actually was not being used in 1979. The monitoring committee, the CEDAW committee, has issued a general recommendation on the interpretation of the convention so that it does apply to and does proscribe violence against women. It has essentially adopted, or integrated violence against women as one of the key areas of discrimination for women and considered that to be within the jurisdiction of the monitoring committee.
For example, Article 6 of the convention deals specifically with trafficking in women and girls. In Articles 2 and 3 there is a very specific reference to poverty and there is a direct link to the international covenants on civil, political, economic and social rights. There is a very close nexus there.
Reference can be found in various articles to women with disabilities, Aboriginal women, immigrant and refugee women. There is a specific section that deals with the access to women's health services. In fact, you can find it in several articles. Off the top of my head, I know it is in Articles 12, 14 and probably also Article 16. There is specific reference to discrimination in the private sphere, marriage, family in Article 15 and I think also Article 16 of the convention. That gives us sense of how it addresses the real-life issues of discrimination experienced by women.
Senator Finestone: Thank you very much. It is always a pleasure to hear from you, Marilou. You always bring something new into clearer perspective, for which I thank you.
I do not know why we have not signed the Optional Protocol. I would like to suggest in the course of this conversation, Madam Chair, that we investigate the reason with a formal letter from this committee to the Minister of Justice and to the Secretary of State (Status of Women). The question is: Is it a stall at the FPT, or is it something that is actually in the Optional Protocol itself that is causing some concerns, and what are those concerns? I think it might be helpful for us to get clarification in that matter. I would appreciate that investigation.
Go ahead, you were going to say something.
Ms McPhedran: May I suggest Foreign Affairs as well?
Senator Finestone: Good idea, thank you. You are absolutely right.
Within the Optional Protocol, in fact within the context of the concerns that relate to women - you talked about poverty, cuts to health and social services and education - if we consider budgeting and the budgeting procedure, if you do a gender analysis and if you consider both men's and women's side of things - not unbalanced, not only women, but men and women - for a fair evaluation of equity and equality, could the case for the lack of gender analysis in a budget be brought to the international committee?
Ms McPhedran: Well, in fact that was one of the points raised in the last shadow report, or alternative report, from women's NGOs in this country. They made specific reference to that as a demonstration of the gap, if you will, between what the Canadian government said it had accomplished and what it still must address. I think the short answer to your question is absolutely, yes, it is entirely appropriate.
Senator Finestone: Did you say that something went, in that respect, to the monitoring committee?
Ms McPhedran: Yes.
Senator Finestone: Have we had an answer?
Ms McPhedran: That is one of the recommendations that I want to make to this committee. I think it is well worth further investigation to ask that question even more generally, to ask what has happened to Canada's responses, including responses from the provinces to the concluding observations of both the monitoring committees when Canadian NGOs presented their alternative reports under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights where there were concluding observations of those monitoring committees. To the best of my knowledge - I stand to be corrected - Canada has actually never responded to those concluding observations. Some of them are powerfully critical and ask very compelling and difficult questions of us as a country.
Senator Finestone: Well, thank you for that suggested direction, because I think it is important. One of the concerns we have in this committee is to determine where we want to put our energy and our effort, and certainly the portrait of the Canadian family, and, particularly, the Aboriginal family, is a difficult one for those of us who have concerns - for Canadians in general and for politicians in particular. As I think the results are shared by both provincial and federal decision-making, it would be helpful to see what the observations were and if the observations included both provincial responsibility and federal responsibility. This is a very complex country to run. There are no easy answers anywhere.
I wanted to bring - if I may?
The Chairman: I still have on my list Senator Cochrane, Senator Joyal, Senator Beaudoin, and Senator Poy.
Senator Finestone: Yes, that is fair.
Senator Cochrane: You mentioned how a primary objective has been a lack of understanding of how of convention is relevant to women's domestic issues. Would you elaborate on that for me?
Ms McPhedran: A great deal of what limits women and girls in achieving full citizenship and full potential in their lives actually happens in the privacy of their homes or within various relationships in their lives that are not governed by most laws. Here I am referring to various forms of violence against women and girls, and I must include with that sexual abuse and incest. This treaty is the only one that talks about eliminating all forms of discrimination, and, therefore, incorporates that much harder to reach, more private sphere.
Let me give another example about a way in which is which the approach of this particular convention helps us understand the discriminatory impact of programs such as Legal Aid in our country. The vast majority of people who qualify for and use Legal Aid are men who are charged with criminal offences. The vast majority of people in our country who need help in the domestic and family sphere of law are women, and the vast majority of denials of Legal Aid support in this country are denials to women for their needs in the domestic sphere of their lives. There is a very clear discriminatory impact.
Please understand that when I say this I am not in any way trivializing the impact on someone who is charged with a criminal offence. In fact, those of you who know that I was recently sued last week for defamation by the Ontario Medical Association will know that I take this very seriously when one has to face anything like this. The point is that the access is different. The definition of what is important, the definition of where the money will go and where the representation will be allowed is fundamentally different and it is a result of the devaluation of the domestic sphere that you end up with a standard that eliminates Legal Aid to the vast majority of women who try to apply for it.
Senator Cochrane: Who monitors the behaviour of women in relation to the human rights obligations? Who does the monitoring of that?
Ms McPhedran: Help me understand, Senator, what you mean by "the behaviour of women." I am sorry, I just need a little more explanation on that.
Senator Cochrane: Who monitors Canada's behaviour?
Ms McPhedran: That is the expert committee that has 23 members, and there is a rotation of membership. There are over 168 signatories to the Convention on the Elimination of all Forms of Discrimination Against Women. For the rotation of the 23 experts as members, these countries periodically nominate someone from their countries to sit on this monitoring committee. That is the committee that is known as the CEDAW committee or the convention committee.
It is the job of those experts to meet. In the case of the Women's Convention, they meet twice a year in New York. They meet in June and in January, usually for two to three weeks. They review reports from the countries that are supposed to be reporting on implementation based on their commitments under the convention. They also, under the Optional Protocol, will now be a form of tribunal to hear the communications, as they are called - complaints are called communications under the Optional Protocol - either by individuals or groups of individuals who have exhausted their domestic remedies within their own countries. So if Sandra Lovelace were bringing her case today, for example - not now, but when Canada signs, ratifies the Optional Protocol - she would be able to bring her case directly to that monitoring committee to be heard.
It is the role of that monitoring committee to do a number of things. It has the power to issue what it calls general recommendations. Those are interpretations of the convention. In some cases it essentially reads in rights, and that is why I use the example of violence against women which it has effectively read into the convention. It uses both the original articles from 1979 plus a series of general recommendations that it has made over time based on presentations from various countries.
Just to complete that, imagine for a moment that a country tables its report in a room much like this before the committee and makes its presentation. Only very recently, only in the period of time that I have been going to the UN, which is less than ten years, have non-governmental organizations from that country been allowed into the hearing room and been allowed to actually present their alternative information to the information that the government presented.
Senator Finestone: I think the picture you have drawn is most informative, but what is the end result? The committee draws a conclusion. What is the impact on the country, whatever the country, particularly Canada?
Ms McPhedran: Well, international human rights treaties do not have attached to them enforcement mechanisms -
Senator Finestone: That is why I felt we had to finish the conversation.
Senator Joyal: I have just a quick question. Is the United States of America signatory to the protocol?
Ms McPhedran: No, Senator Joyal.
Senator Joyal: Okay, I wanted to have that on the record.
Ms McPhedran: No, it is not.
Senator Joyal: I am trying to understand the access to court that is given to a European citizen versus a Canadian citizen. A European citizen can go to the European Court of Justice to seek redress directly without having exhausted the normal domestic remedies. European citizens have a right to go directly to the European court. I suppose that among the signatories of the protocol there are some European countries too, so according to that protocol, would that same person would have the right to go directly to the UN?
Ms McPhedran: Right, they would have that option.
Senator Joyal: - without having exhausted their domestic remedies?
Ms McPhedran: Yes.
Senator Joyal: Since Canada has not signed and ratified the protocol, that means that a Canadian citizen, as in the example of Sandra Lovelace, has to exhaust domestic remedies before going to an international level to be able to plead his or her case. Is that right?
Ms McPhedran: Yes, that is also my understanding, Senator Joyal.
Senator Joyal: If we compare the recourse that is allowed under the Canadian Charter of Rights and Freedoms under section 28 and section 15 to the court, would you say that the Charter does not provide as good protection as recourse at the international level? How would you compare the two recourses, in terms of decisions that would be binding on the government or agencies or whoever is part of the litigation or is the object of litigation? How would you compare the two recourses to be sure that we understand clearly the legal implication at both levels?
Ms McPhedran: I would say that it would be important for us to place this in a context in which you played a very significant part, Senator. That was during that very intense time in the early 1980s when we were dealing with our own Constitution. When sections 15 and 28, as the equality sections, really came into being was also when the convention was coming into being. It was not even three months after CEDAW came into effect in Canada past the point when the 1982 Constitution Act was signed.
We were very focused on our own Constitution, and although those of us who were involved in actually drafting the provisions, as I was, used some of the wording of the Women's Convention to help us with the wording that we wanted amended - I speak only for myself on this, although it probably applies more generally - we did not think of it as the additional tool that we are now definitely considering the Women's Convention as being. I think the reason for that was both the fresh quality and the high level of hope and inspiration related to our own Charter and it was because of the lack of legal enforcement. You can get a spectacularly supportive decision from the monitoring committee and the best you can do, as the complainant, is to carry that back to your country and say, please, please, please, whereas with our Charter, it is my right as a woman citizen of this country. It is a very essential difference. That is the reason that in cases where we have seen the court make reference to the convention and link it to the Charter rights we have had some very powerful judgments.
I think in particular of Madam Justice L'Heureux-Dubé's judgment in the Ewanchuk case in 1989 - and I have a quote which I can read in if we have time - where she emphasized the strength and clarity of our own Charter of Rights and Freedoms and then moved to the Women's Convention and showed how entirely complimentary and supportive the convention was of the Charter and vice versa. She used that combination to make the point that when faced with the case, as they were, around consent in sexual assault, the weight of both of these pieces of legislation combined to support and, indeed, compel the court to bring an interpretation to that situation that emphasized the human rights of the woman.
Senator Joyal: This is very important because it is linked to what we heard last week from previous witnesses. If I understand the parallel with another bill we are discussing somewhere else, Bill C-7, the young offenders legislation, whereby the obligation that Canada has endeavoured to take under the child convention, the link of the two would reinforce the interpretation and the obligations of the country to act. The problem, as I view it at this time, with the international protocol is that the conclusion might be favourable to the petitioner, but in terms of actions and in terms of orders given to the agencies, you might have to restart the process at the preliminary level in your own country if you could go directly to the international level under the context of the protocol.
Ms McPhedran: Except you could not get there unless you had exhausted your Charter rights.
Senator Joyal: Currently, yes, but if we signed the protocol -
Ms McPhedran: No, no. The protocol very clearly states that -
Senator Joyal: I mean the Optional Protocol, which we have not yet signed.
Ms McPhedran: Right.
Senator Joyal: That we would want to get something under the Optional Protocol that we cannot currently get under the Charter, is the key element of the impact of why we should press for the Optional Protocol. That is the major argument we can develop with the government to bring the government to sign the Optional Protocol.
Ms McPhedran: I agree, and, just to respond to that, the requirement that domestic remedies must be exhausted before a complaint can be accepted under the Optional Protocol will actually stimulate the pursuit of domestic remedies. I think this is your point, Senator. That, in turn, will strengthen the civil legal system in our own country, and, indeed, that is something that governments want. This in many ways is a pro Optional Protocol argument that is being used in a number of countries that have not yet ratified.
In addition to that, I think we know that cases under the Optional Protocol have a high probability of gaining international attention. That could be seen by governments as a means of raising public knowledge about the options so that there was actually public support for the case at hand and it could become the basis for the justification of allocating resources directed to providing a remedy. Perhaps, it could be helpful even in shifting the mindset of the power holders and the resource allocators when there are not enough resources to direct to all the problems. In other words, it may help move some of these issues up the agenda. I agree entirely.
The Chairman: Senator Wilson, do you have a short supplemental question?
Senator Wilson: Earlier it was asked what happened to Canada's response to the concluding observations of the "ESC," economic, social and cultural. I will put this on the record. I phoned Heritage Canada and the Status of Women three times about that because when the head of the delegation was in New York on the economic, social and cultural thing it was promised that Canada would have a press conference on this, distribute the concluding observations to all MPs and senators and would have a special committee to monitor it, none of which has happened. That is another linkage, and I am just wondering whether if we are in the letter writing mood we might like to ask whatever happened to that. Mind you, I asked my questions just before the election and was told it is not an appropriate time. So I do not want that to get lost when we are talking about linkages.
Senator Beaudoin: My question is in the same direction as that of my colleague, Senator Joyal.
There is something that is missing in our system. We have the dual system. It means that when we sign the treaty we have to implement it by legislation. That is the second time in one week that we are faced with a problem that has no solution so far. I will ask you this question and I will ask the same question to the person who follows you also. In my opinion, when we sign a treaty we have an obligation to implement the treaty, exactly. This will be decided in court, because Quebec is in Court of Appeal on Bill C-7. Obviously, the lawyers - if they do not think about it, I would suggest they do so - will ask for a ruling by the court on whether when we sign the treaty we are under the obligation to implement the treaty. We have one precedent. The precedent is the secession case of Quebec. The court said that if there is a clear question and a clear answer, there is a constitutional obligation to do negotiate. I do not affirm anything tonight, but I will dig into that matter. My impression is that we are under an obligation to implement a treaty. On Bill C-7, the minister said that we are implementing - because there is Bill C-7. Well, this may be an adequate answer.
The Chairman: I do not think she quite said that. She said we are meeting our obligations within - she did not say she was implementing.
Senator Beaudoin: In other words, the status quo with the bill is enough to implement the bill, okay. Now we are faced with exactly the same problem. Canada is signing a treaty and we do not have implementing legislation. But surely somewhere we should be under the obligation to do so because if we have the dualistic system that we inherited from Great Britain, we have to do everything to give effect to that. What do you think of that?
Ms McPhedran: I think that where the obligation in the international treaty, in the Women's Convention, for example, is clearly consistent with equality rights that we have implemented that through our own Constitution and our own Charter. Where we have not - and where I think your point is most compelling, sir - is in the area of social and economic rights. Many of the references in the Women's Convention are social and economic rights that have -
Senator Beaudoin: Well, that is another aspect. My problem is this: Charter section 28 is probably a section that is unique in the world now because the equality of men and women in Canada is very strong.
Ms McPhedran: Yes, relatively speaking.
Senator Joyal: On paper.
Senator Beaudoin: On paper, of course, yes. That is another matter. The point is that our Charter complies with equality of men and women. Of course that and section 15 are probably the best sections, but what worries me is the legislation to implement equality. This is where we have "un trou béant," as we say in French, not a mistake. It is an incredible lacuna.
There must be an answer to that. I think the only answer may be given by the Supreme Court if it says - as I hope it will one day - that when you sign the treaty, you have to legislate to implement the treaty and that there is a Constitutional obligation to do so. That has been done for the secession of Quebec, so why not for the implementation of treaties? After all, if we may ignore a treaty that we have signed, there is something wrong somewhere. That is my case.
Ms McPhedran: As a point of information - you have the poster - I do not want to forget to bring to your attention that the entire report is a 250-page document and it is available. I think there was a question of budget so I did not have an order to bring copies. You may find the report interesting in the way that the kind of questions that both Senator Joyal and Senator Beaudoin have raised are addressed in the Canada portion of this study.
Senator Beaudoin: Where is the answer in that book?
Ms McPhedran: It starts around page 40.
The Chairman: Has that report been filed with the committee?
Senator Beaudoin: That was page 40.
Ms McPhedran: You have a copy, Madam Chair.
The Chairman: Our clerk has a copy of it.
Ms McPhedran: And other copies are available.
Senator Beaudoin: Is there an answer?
Ms McPhedran: There is a discussion. There is not a definitive answer, but the point is discussed there about the gap in implementation and the way in which much provincial legislation actually actively contravenes international obligations. There have been some very powerful local examples that have been gathered by non-government organizations in different parts of the country. Of course it raises again the question of the federal-provincial link. When a province has contravened an international obligation, in effect, the whole country ends up wearing that.
The Chairman: I have a supplementary from Senator Joyal. I then have Senator Poy on the list and I have Senator Finestone on a second round. We will be concluding this portion at 5 o'clock.
Ms McPhedran: My goodness!
The Chairman: I am sure our next witness is very important as well. I want to be fair, so I will ask everyone to be as quick as possible.
Senator Joyal: You are a lawyer and you have studied the implication and the impact of section 28 in relation with section 15 and the whole body of Canadian legislation. I would like to submit something to you today and ask for you to think about it and perhaps you can report on this to us along the line. It deals essentially with the equality of men and women.
I am of the opinion that since the Charter the equality of men and women is a compulsory obligation of the executive when it deals with the Royal Prerogative. I am of the opinion, for instance, that the prerogative of appointment to the Senate, which is in the hands of the Prime Minister of Canada, is not an absolute prerogative. It is a prerogative that has to take into account the values embodied in the Charter. Because the Crown, when it bound itself with the Charter to limit the prerogative of parliament, limited its own prerogative at the same time, and to me, when the Governor in Council uses power of appointment, to put it in legal terms, that has to take into account the obligation that has been ascribed under the Charter. In other words, the limit is not only on parliament; the limit is on government too, on the executive prerogative. I would like to ask you to look into this for us because this is a very important development of what the Charter means in our day-to-day administration in Canada.
Ms McPhedran: I can only say it makes total sense to me. I am not a Constitutional scholar, but I think that the executive is clearly part of our government and our government is clearly subject to the supreme law of the land: our Constitution and our Charter.
Senator Joyal: You know what it means. It means that the power to appoint ambassadors, the power to appoint judges, the power to appoint senators, the power to appoint, all the appointment process, which is a power of the prerogative, is essentially bound by the compelling section of the Charter.
Ms McPhedran: But if, for example, we do an impact study of that, using the methodology that I have described earlier, and actually look at the outcomes, the outcomes do not match the obligation, do they?
Senator Joyal: Well, then we will have to seek redress within the Charter.
Ms McPhedran: That sounds like an excellent case.
I need clarification on a few things. The Optional Protocol of the Women's Convention of 1999 stresses implementation - or was implementation supposed to have happened with CEDAW?
Ms McPhedran: The latter.
Senator Poy: Yes.
Ms McPhedran: When a country makes the commitment through ratification of the convention, its commitment is, indeed, to implement the articles of whatever convention. The six that I mentioned, seen by many to be the major UN human rights treaties, all have very specific obligations to which Canada has made a commitment of implementation. The process of reporting to the monitoring committee is the way in which progress or lack of progress is measured and documented.
Senator Poy: What has that to do with the Optional Protocol that came into effect in 1999?
Ms McPhedran: The Optional Protocol is an additional remedy, and it is a remedy available to the citizens of the member states to the UN who opt in to the protocol.
Senator Poy: Canada did not opt in.
Ms McPhedran: Not yet.
Senator Poy: That is mainly on complaints procedure.
Ms McPhedran: It relates to human rights and it relates to the human rights that are addressed through the articles and the general recommendations of the Women's Convention: violence against women, access to education, access to health services, trafficking in women and girls. Those sorts of issues are specifically addressed in the Women's Convention. It means that if there is a complaint by an individual or a group of individuals and they have exhausted their domestic remedies, they can take their complaint beyond the borders of their country to the international audience and articulate their concern, their argument, that their rights have been violated within their own country.
Senator Poy: However, in the case of Canadians, because we did not ratify, Canadians really cannot do that.
Ms McPhedran: As of today Canadian women cannot use the Optional Protocol to the Women's Convention that we have not yet as a country ratified.
Senator Poy: You mentioned the public sphere and private sphere. The greatest difficulties that women have, violence in the family and so forth, are in the private sphere. How does the 23-member committee help to solve these problems? How can someone who is very badly abused in the home possibly go to the UN convention? I am trying to think of it logically. How does that work?
Ms McPhedran: Well, the provision in the Optional Protocol actually does not require that individual herself to go. It can be a group of individuals or another individual who files the complaint.
There is a requirement for the consent of the individual to be tabled before the committee unless those making the complaint can explain to the committee why such consent is not available or not possible. The committee can then exercise its discretion and proceed to examine the issue. They can name an inquiry where a small number of members conduct the inquiry and report back to the monitoring committee on a confidential basis and the monitoring committee then makes its decision about what next step it wants to take.
Ultimately, Senator Poy, the best case scenario under the Optional Protocol is that the committee would find in favour if Sandra Lovelace were bringing her case today under the Optional Protocol, had Canada ratified it - a lot of "ifs" in that. Hypothetically, it would mean that once the committee found that her human rights, as articulated in the Women's Convention, had been violated, that would hopefully become a highly public, internationally public issue and it would affect Canada in its demeanour and its reputation internationally as well as domestically and that concluding observation could be used back in Canada, perhaps even to move towards legislative amendment or policy amendment or some significant shift. It is that difference between being silenced at home and having witnesses shine a spotlight on injustice.
Senator Poy: But there is no other way of enforcement, right?
Ms McPhedran: There actually is no enforcement. There really is no enforcement through any of the UN human rights treaties. I call it the politics of embarrassment.
Senator Joyal: It is politics of shame.
Ms McPhedran: - and of shame.
The Chairman: A quick second round.
Senator Finestone: I would like to ask the clerk through you, Madam Chair, to purchase enough copies for the members of this committee.
On the politics of persuasion, just to pursue this for one moment, I want to address something Senator Joyal asked and I would like to know if I understood it or if it needs clarification - I think we are talking about moral suasion. I do not think that in any country - that is my question, in any country.
Senator Joyal, you used the example of a European person, but even if a European person from a country that had signed the Optional Protocol went directly, without having to have exhausted the case before the Crown in his own country, if there is a Crown, there is no effect. First of all, the decision is moral suasion. The point you are making is that a Canadian cannot go because he has not pursued his case in Canada is at a disadvantage. Is that right? Would the decision be any different if it were a European whose country had signed the Optional Protocol versus a Canadian whose country had not signed?
Ms McPhedran: I just want to make one point of clarification before we get to the answering stage. The Optional Protocol to the UN CEDAW convention operates only within the UN system. Senator Joyal was making reference to the European system, which is, if you will, a parallel system. The signing of the Optional Protocol by a member of the European Union or the Council of Europe would not trigger access to the European system because there are treaties and covenants within the European system that were also signed.
Senator Finestone: Is that what you were referring to?
Senator Joyal: In other words, the difference between the two is that in one instance it is a moral suasion, or, as you said, politics of embarrassment and politics of shame, and in the European context it is an order. Countries that have signed the European Convention on Human Rights are bound to follow the decision of the European court. It is not just moral suasion; the decision of the court is binding on the state in which the citizens who apply to the court seek redress.
In other words, a European citizen has the capacity to go to an international court that we, as Canadians, do not have at this point in time. That is the difference between the two. A European citizen, if his country is signatory to the Optional Protocol, can go to the European court directly, or he or she could go to his or her domestic court, or decide to go to the international court that is under the UN system.
Senator Finestone: In that case there is only moral suasion.
Senator Joyal: Yes, but it depends on the case. There are cases where, for various reasons, sometimes are best put at the international level, depending of course on the nature of the redress that one seeks. On the matter of principle, it always depends on the issue at stake. I think Professor McPhedran could confirm that. On an issue of principle sometimes it is better to go to the highest audience possible because the impact is very important. If it is to seek redress in your own domestic situation, it is better to go where decisions are binding on your government. It depends where you want to put the issue at stake.
The Chairman: This is an excellent discussion as is where we are going in it.
I want to thank you, Dr. McPhedran. You have obviously generated the kind of debate that we need in this committee.
An area that we still must pursue is that in signing either optional protocols or any UN convention we must exercise moral leadership and further our foreign policy initiatives in a multilateral sense. That is in a totally different perspective that we have not pursued as yet. There is merit in our signing if we wish to be considered leaders in an international way. By staying out, are we marginalizing our moral influence on other countries?
Ms McPhedran: I would submit the answer to that question, Madam Chair, is yes, we are.
The Chairman: I know there are other questions. Perhaps we will have another opportunity at a later stage to continue this debate.
Senator Beaudoin: Oh, yes.
The Chairman: We have run a bit overtime. We will hear our next witness.
Ms McPhedran: May I beg your indulgence just for one minute. I would like to table with you - this is on the international women's rights scale - a letter that a group of us have worked with the Afghan women's organization to draft responding to the events of September 11. My colleague, very helpfully, has copies here, and, if I may, I would like to table this with members of the committee.
The Chairman: Now we will invite Dean Peter Leuprecht from the Faculty of Law, McGill University, to join us.
Dean Leuprecht, your biography was circulated to the members. I particularly wanted you to come to speak to the committee at this phase because I was advised that you were instrumental at one point in focusing the Department of Justice in what their work should be towards taking into account, if I can put it generally, the international obligations of Canada. I know your work there and also your own scholarly work.
At this point we are in a general part of our study. We are authorized to examine issues relating to human rights, and, inter alia, to review the machinery of government dealing with Canada's international and national human rights obligations. What we are particularly interested in is to receive information about human rights internationally and nationally, and to seek your advice on what areas we might study in the future. Obviously you see one area of great debate today. There may be others that you wish to point out.
In light of the fact that we have run over our time, if you have a presentation of ten minutes, I would encourage you to stay within that amount of time because I am sure there will be questions. Some members have asked me to adjourn on time. That is why I am rushing some of your questions.
Dean Leuprecht, please.
Mr. Peter Leuprecht, Dean, Faculty of Law, McGill University: I have a preliminary question. Should I comply with Canadian bilingualism or stick with the language of the majority?
The Chairman: As you wish. It is your choice. We are well equipped to function in both official languages. It is your choice.
Mr. Leuprecht: If I may, I will occasionally switch from one language to the other.
The Chairman: Please proceed.
Mr. Leuprecht: May I say it is a great honour to be heard by your committee. You have received an outline of my presentation. It will be made in telegraphic style and I will follow that outline.
To begin, I would like to make two preliminary remarks which may be commonplace, but I would like to start with that.
What we have seen happening since the Second World War is an increasing internationalization of the law, and, in particular, of human rights law. I think it has been mentioned in your papers and I have mentioned on other occasions that Canada is party to about 4,000 international treaties and about 40 treaties dealing with human rights.
First, international law is ever less confined to the field of international relations or external affairs. It has a growing impact on internal affairs. It is closer and closer to constitutional law. One of the senators previously referred to the European Convention on Human Rights, and I think it is very significant that the European Court of Human Rights very often refers to the convention as a constitutional instrument of European public order.
My second preliminary remark concerns Canada, which plays a very active and constructive role in international law-making, particularly in the area of human rights and humanitarian affairs. There are many examples, recently landmines, the Rome Statute of the International Criminal Court.
It must also be said that, contrary to the big neighbour in the south, Canada has a very good record of ratifying international human rights treaties. However - and this is my starting point, really - there is a striking and, I believe, growing discrepancy between Canada's pioneering role and positive image on the international scene on the one hand and the deficiency of domestic implementation of international human rights treaties on the other. I will briefly address first of all the present situation, then possible remedies, and I will, as usual, be frank and outspoken. I hope you do not mind that.
The present situation, I would say, is very untidy or messy. I will make six points on this; the first will be on your approach, the Canadian approach, to international law.
[Translation]
I often say that Canada is a receptive country, as has been my experience. It is not really receptive, though, to international law since in this country there is a very uneasy relationship between internal and international law.
We cannot speak of divorce because there was never a marriage - certainly not a consummated marriage. Perhaps this is a legacy of the British influence. You know the adage: "England is an island, but English is a continent."
At best, there have been occasional flirtations between Canadian law, international law and the tribunal. In Canada, the court whose flirtation has gone the furthest is the Quebec Human Rights Tribunal.
[English]
What you have inherited is the British approach to international law, which, in the eyes of many distinguished international lawyers - and I quote one of them - is unsophisticated, old-fashioned and insular. However, there are three differences between the British situation and your situation. First of all, the British have been increasingly shaken by Europe, by the impact of European community law, and, in particular, by the impact of the case law of the European Court of Human Rights.
The United Kingdom has recently incorporated the European Convention on Human Rights into domestic law, and Lord Wolf, who does not usually exaggerate, has said this is "a tidal wave which will transform the legal landscape and affect every area of law in the United Kingdom."
Second, here in Canada you remain prisoners of the old-style British approach. You have the problems and advantages of the federal system, but in this area you have the problem of the federal system, to which I will come back later.
Third, I would say that UK courts, even before the recent Human Rights Act, have been far more daring than Canadian courts. I would refer in particular to judges such as Lord Denning and Lord Scarman. They increasingly refuted the traditional argument regarding the relevance of unincorporated treaties, and courts did refer for years to international treaties when examining domestic statutes which contained the same subject matter, regardless of the fact that the domestic law was not implementing legislation.
Let me now come to what I call the three dogmas of the Canadian doctrine. The first dogma is that international treaties, also in the area of human rights, even if and when they are duly ratified are not automatically part of the domestic law.
[Translation]
They need to be incorporated in the legislation. In human rights, the usual assumption is that the situation in Canada is perfect, that protection is better than that of international treaties and that very often, there is no legislation to apply these international treaties. Secondly, international law, including human rights legislation, may be a support for interpretation of the Canadian Charter of Rights and Freedoms and Canadian legislation. Thirdly, where there is a conflict between international law and Canadian law, internal law prevails. The question that arises is how can this position be reconciled with the Vienna Convention respecting the binding effect of treaties ratified by Canada.
Article 27 stipulates specifically, and I quote:
A party may not invoke the provisions of its internal law as justification for its failure to perform according to a treaty.
[English]
The third point regards the present situation of how Canadians courts have coped with the situation. I would like to make five very brief remarks. Although some 500 Canadian court decisions refer to international human rights treaties, I would say, considering the number and scope of human rights instruments ratified by Canada and the volume of traditional activity of this big country, the silence of Canadian courts is more eloquent than their pronouncements.
Secondly, certain court decisions of Canadian courts are proof of an alarming ignorance of international law and international human rights law. I will give one extreme example. In a decision of 1990, the Alberta Court of Appeal found that Canada was a party to the European Convention on Human Rights and built a whole reasoning on that. It was clearly a judicial error, and a very serious one, but many other courts would get very bad marks in an international law class. Even, if I may say with all due respect, the Supreme Court of Canada when it moves into international law does not seem to be on very safe ground. There is in the country a widespread unfamiliarity of both bench and bar with international law and international human rights law.
My third point is if and when Canadian courts refer to international human rights law, they do so, in most cases, when the law supports a conclusion to which they would have come anyhow. The international law is used somehow as the cherry on the cake. If international human rights law suggests a contrary result, it is usually ignored.
My fourth point is that as long as the third dogma applies, according to which, in cases of conflict between international law and domestic law domestic law prevails, if that is the case, if that is the dogma, it would be useful if courts stated where they find such a conflict, but you will have great difficulty in finding any such decision.
My fifth and last point on the courts concerns international customary law. In principle, the position is that courts can apply international customary law. They do it very rarely, and I think they are far less daring in that respect than even United States courts. My dear colleague and predecessor, Stephen Toope, has said and written that our courts have provided no leadership on this fundamental issue of the relationship between international law and domestic law.
Let me now come very briefly to the role of Parliament. Here the argument that is used again and again is that of parliamentary sovereignty, and you know what Dicey has written about that.
[Translation]
An observer, however, is increasingly struck by the marginalization of the supremacy of Parliament in the process of approving treaties, though the supremacy of Parliament is constantly invoked. Thirty or fifty years ago, Parliament in Canada was more involved in the approval of treaties than it is today. In this regard, there is no persistent practice. Your colleague, Senator Kinsella, wrote in 1998 that there was:
[English]
- a sporadic impact of the government on parliament.
It is true that under your Constitution, the Canadian Parliament, as Peter Hogg writes, plays no necessary role in the making of treaties. On the other hand, the doctrine has been, or the practice has been, that on important treaties government will try to obtain the approval of parliament. If that were true, obviously the government does not regard human rights treaties as important treaties.
Let me now come to the federal problem. My dear colleague and friend from the Department of Justice, Irit Weiser, we have heard, referred to the federal problem as one of the immovable mountains. Here we still have to live with an old decision, the famous Labour Conventions decision by the Privy Council. It is old. I know that because it has the same age as me. The question is whether it is really not possible to get away from that. I would very much hope so.
My last point on the present situation is on the impact of the situation at the international level.
[Translation]
We find that Canada and the department's public servants who must report to the regulatory agencies have increasing difficulty in explaining the Canadian situation. Sometimes they make statements that are not really consistent with reality. For instance, in 1984, the Canadian representative on the Human Rights Committee presented the Canadian Charter "as implementing legislation for the government."
Criticism from the international regulatory agencies will continue to grow. I have already said it, for instance, if you look at what has happened the last two times, on the one hand, on the Human Rights Committee and, on the other, on the Committee on Economic, Social and Cultural Rights, you will see this. It is a grave mistake to see in this merely what some have described as a "failed public relation exercise." The problem goes deeper. It must be examined in the interest of Canada's good reputation and also the rights of Canadian justiciables.
To conclude this first part, the situation is unclear.
[English]
Stephen Toope has written that Canadian law has developed no conscious self-understanding of the interplay between international and domestic norms. A colleague of mine at foreign affairs, at the brainstorming we organized on these issues at McGill, said, "We do not have a culture of compliance with international human rights law," and Irit Weiser has written, "Canadians cannot know what significance is to be given to treaty obligations in domestic litigation."
Now, very quickly, the second part - you have all the headings on the outline.
[Translation]
What is the solution? Firstly, there is a great need for education and information. This should begin in the faculties and be part of lawyers' training. The public servants and counsel of the Department of Justice, as well as the judges, should be trained in this area. I note that there is a growing interest in these issues in legal circles.
Secondly, the government could and should become more involved before the ratification of treaties, for example, by conducting an impact assessment by the cabinet. It could also make sure of the consistency of draft legislation with international commitments, a proposal contained in Senator Kinsella's article. The position of the government's counsel would also have to be reconciled with the country's international commitments.
Thirdly, Parliament should be much more involved in the development of treaties, for example, by seeking the approval of Parliament for their ratification, as is the case in most democratic systems. We could also consider parliamentary hearings on the implementation of treaties.
Fourthly, the provinces would have to more involved before and after ratification. We should look beyond our borders, seek greater inspiration from the law and practices of other countries, particularly those of other federal governments and especially those of modern constitutions. In another arena, Madam Chair, you recall perhaps, I talked about procedures in Australia, whose legal system is comparable to ours. It may provide a source of inspiration. The Australian process is infinitely more transparent than the Canadian process. Elsewhere, the South African constitution also offers some very interesting solutions.
Lastly, can we think about more radical solutions?
[English]
How immovable are the immovable mountains.
I come to my conclusion, and I apologize for having been a bit long. The conclusion was put very well by Stephen Toope, who has written that we, Canada, can do better, and Irit Weiser, who has written that this is a situation in need of change.
I sincerely hope, Madam Chairperson, that your committee will be a force of change and that it will contribute to finding solutions that will enable Canada to do better.
[Translation]
Senator Beaudoin: I must say straight off that it is an honour for us to have you here. I regard you as one of the great constitutionalists and one of the great experts on international law of the world. As an academic, I congratulate McGill University for having appointed you dean.
I agree with what you have said. The fact that we do not know about international law bothers me a lot. I will not talk again about the fact that we have a complicated system; that would give rise to another discussion. Would it be possible for the Supreme Court to draw more on international law, for it to incorporate it in its decisions, even if technically the treaty is not in effect? This has just happened twice in one week. If the Supreme Court could, in its decisions, draw on the basic principles of international public law, this would change a lot of things. Am I to understand, however, that this is possible within the latitude granted to the Supreme Court? I think so, but I would like to hear you say so.
Mr. Leuprecht: The honour is all mine, senator. As for the motives of McGill University, I cannot comment on them.
To answer your question, the Supreme Court could pattern itself more on international law. Without going into the details, I mentioned that the British judges have been more daring. I mention the British judges because our legal system is basically British in its inspiration. I mentioned Lord Dennings, who in various decisions has said some very interesting things. I do not know whether you want any examples, but it would be a good idea for the Supreme Court of Canada to pursue this path further. Perhaps there is the beginning of an opening in the Baker decision. It is rather a timid one, to my mind. I could cite other examples in the various legal systems in which international law is directly applicable.
A while ago, Senator Joyal spoke about the European Convention on Human Rights, which in several countries, not only takes precedence over the law, but also enjoys almost constitutional status. The Austrian constitutional court, for instance, may declare laws to be anti-constitutional because they are contrary to the European Convention on Human Rights.
[English]
Senator Beaudoin: On the relation between the Constitution and international law, do we have the right to give precedence to our domestic law over international law? Some people are very legalistic on this. The Supreme Court has said that domestic law is more important than international law; that is the end of the matter. I am not too sure of that because I think it is the duty of the Supreme Court to give more effect to international law. But this is not what has been done recently. The court has said if there is a conflict between international law and the Constitution, the Canadian Constitution will prevail. The Supreme Court said that and it is the court of last resort, so we have to comply. I have difficulty with that, but it is our system so what can we do? Will we come back before the court?
Mr. Leuprecht: No. Well, you are putting the finger on one of the most difficult problems. The only thing I can say is that it is far from obvious that the Canadian position is the ideal position. I quoted to you Article 26 of the Vienna Convention. The Vienna Convention is a very important legal instrument. Article 26 says that every treaty in force is binding upon the parties to it and must be performed by them in good faith. That applies also to Canada. Then really the crucial point is article 27 on internal law and observance of treaties which says that a party may not invoke the provisions of its internal law as justification for its failure to perform according to a treaty. This is a very important point.
There are constitutions, particularly younger or relatively young constitutions, that make very clear statements on this issue. I know you are a great constitutional lawyer. For example, Article 55 of the French Constitution says that treaties and agreements duly ratified and approved shall, upon their publication, have an authority superior to that of laws, et cetera.
It is interesting, actually, that fairly new democracies are very open to international law. They put a lot of confidence in international law. The Greek constitution after the fall of the military regime and the Spanish constitution are very open to international law.
Now, in Canada, probably the change could come - and I hope it will come - gradually from the Supreme Court. I will not comment on how open it is at present with regard to international law and whether tomorrow it might be more open than it is today.
I should add because I am realistic - and although I am very attached to international law - that not everything in international law is perfect. In many respects international law is still very weak law, "un droit en formation." It is less so in the area of human rights where we have a very important body of international law, and, actually, contrary to what is being said sometimes, it is a very sophisticated body of international law.
Senator Beaudoin: If I may just conclude, we may hope that the Supreme Court, which is the court of last resort - it is our Constitutional court - may change its attitude toward international law. I am inclined to agree with that and I am optimist that it may come to that conclusion in the near future.
The Chairman: Senator Joyal, do you have a supplementary remark?
Senator Joyal: It is exactly the same issue that I would like to propose to Professor Leuprecht, who is always welcome in our work, especially on this issue.
Mr. Leuprecht, I would like to quote from a decision that the Supreme Court of Canada has made public this year which I think is a very, very important decision, which is the case of Burns and Rafay. There is a section in the judgment that, to me, goes almost beyond - when I say "beyond," I mean another step to the one on which you have elaborated before us today, and if I can quote it, I will, after the quotation, draw a parallel. It is at page 287 of the Supreme Court decision. It deals with the death penalty.
[Translation]
Secondly the abolition of the death penalty is the subject of a major Canadian initiative internationally and reflects a growing concern in most democracies. The support given by Canada to international initiatives challenging extraditions unaccompanied by guarantees, combined with the fact that Canada favours, throughout the world, the abolition of the death penalty itself, leads us to conclude that, according to the Canadian view of basic justice, the death penalty is unjust and should be abolished.
[English]
I wish to draw to your attention to the following words because I think this is most critical.
[Translation]
Although pieces of evidence do not establish the existence of a standard of international law prohibiting the death penalty or the extradition of persons to countries where they might be liable to such a penalty, they bear witness to the existence, internationally, of a major movement in favour of acceptance of a principle of basic justice already adopted by Canada internally, that is, the abolition of the death penalty. Experience at the international level confirms therefore the validity of the concerns expressed in the Canadian Parliament about capital punishment. It also shows that the rule requiring guarantees prior to extradition in matters of the death penalty is compatible not only with the position of the principle defended by Canada on the international scene, but also with the practice observed in other countries with which Canada is generally compared, except for the U.S., which still applies the death penalty.
[English]
I think that is the most progressive statement saying there is no formal rule, but there is a principle. So we are, in a parallel way, in the same position as the secession reference ruling where the court found four structuring principles underlying the Canadian architecture of the Constitution.
The most important elements of development are not only to look at specific documents, because if we just try to read one sentence and ask what it means, we certainly can achieve a level of international rule. But the court has done something more. It has said, "Let us look at what other countries do." Canada compares itself to that, and Canada promotes this, so that should be binding for Canada. It is a very important step because it brings the level of the international law into a definition that is much more compelling than just the signature of one convention on a very specific point. Now when the courts have to interpret a convention in the field of human rights, they will have to look at the whole picture of what Canada does, not only in that very limited section, but in the overall principles that democracies comparable to Canada promote. Do you think that I am stretching it too much, or do you think that there is there a field of potential that is very beneficial for the inclusion of international law in domestic legislation?
The Chairman: Dean Leuprecht, before you answer, since this was a supplemental -
Senator Joyal: It was not my main question.
The Chairman: - I was going to add another supplemental to that. Do you think this case and the position that Senator Joyal is putting forward is a trend that you see in the court, or was it particularly, on this issue, because that is the direction they wish to go?
Mr. Leuprecht: Well, if I may, I will answer your question first. I hope it is a trend. I hope it expresses a trend. I am fairly new in this country. I am not a Canadian, although my youngest son always says we should become Canadians soon. We will see.
You all know that there has been speculation in the last few years as to whether the Supreme Court is becoming more open or, rather, less open. I said before, and I repeat, maybe Baker v. Canada is an opening. This decision that has been quoted is an opening. I agree with you, Senator Joyal. What I find very interesting there is that the Supreme Court could not really say that the abolition of capital punishment is a rule of customary international law. I think it could not say that as it could say that the prohibition of torture is customary international law.
The reason is interesting. I regard it as highly positive as is the idea of comparing regimes that are comparable, to examine other democratic regimes with the rule of law -for example, to look towards Europe. One of the things I am very proud of, if I may say so, is that I was very involved in the effort for the protocol to the European Convention on Human Rights on the abolition of capital punishment. When you think of it, the whole of Europe nowadays, from Reykjavik to Vladivostok, is an area where the death penalty is not applied. Not all countries have removed it from their statute books. I think this is a remarkable achievement, and it expresses a trend in a considerable number of democratic countries and some countries that have recently become democracies.
May I just add one brief remark in response to what Senator Beaudoin said before? I think, of course, one has to hope that the courts will evolve, but very much depends on the lawyers and what they plead.
The lawyers are not yet very good at pleading international law, and, quite frankly, I went through the Baker case with my students, and if I had been the lawyer, I would not only have pleaded the Convention on the Rights of the Child. I would have pleaded a provision in the covenant on the right to life. I have never understood why there is no corresponding provision in the Canadian Charter. I would have referred to the very rich European case law regarding expulsions, deportations if and when they disrupt family life, but obviously the lawyers in the Baker case were not familiar with that.
I come back to the point of education. It is not only that judges have to be educated, lawyers have to be educated. I hope that the young lawyers will get more and more of a human rights education.
Senator Wilson: Yes, it is on that very point that I want to ask you some things. The more you talked, you set out a long and difficult agenda for us. It is our job to figure out how to do it, I guess, but I am going pick your brain.
You talked about impact assessment at the cabinet level, involvement of the provinces, incorporation of human rights treaties into domestic law - that is for parliamentarians - screening of new draft legislation - I would think that is for is the House of Commons, except its human rights subcommittee is on country folks. It is dealing with Colombia now and then they will do Sudan, so they are not at all in this thing at all. It is fine to speak of education information, but by whom and to whom?
I have got two questions. There must be a group of people within the legal profession who are taking this on, who not only see the value of it but in fact are taking it on so that the education takes place within the profession. I would like to know what is happening there.
Second, what strategic action do you think the committee could take which would make the most difference in moving this thing along in implementation? Would you wait for a high profile court case, or what about the energies of this committee? What one thing would you think would be useful?
Mr. Leuprecht: Well, first of all, on educational information there are very interesting texts on that, actually. Human rights education, not as legal education, but human rights education should start at a very young age. There are excellent texts by the Council of Europe on human rights education in schools, for example, as an education to fundamental attitudes.
Senator Wilson: But is any of that being done in Canada?
Mr. Leuprecht: Some, I think, but maybe it is being done less systematically than in some European countries.
As far as legal training is concerned, it has to start in law faculties. For example, at McGill we do have teaching on human rights. That has been a long tradition. That is not at all the same in all Canadian law faculties. I referred to bar schools. In Quebec, for example, people spend a year at l'École du Barreau du Québec. I think they should have training in international human rights law.
The same applies to the judges. Here there is some progress. I do not want to sound negative. The Judicial Institute is quite active now. In November there will be a big conference of women judges in Montreal and the subject is precisely that, the domestic implementation of international human rights law in Canada. Since I have come here I have seen a growing awareness. You referred, Madam Chairperson, to my two years in the Department of Justice. I must say that both deputy ministers, Mr. George Thompson, who is now with the Judicial Institute, and after him Morris Rosenberg, were very motivated and have repeatedly asked me to promote awareness of these issues in the Department of Justice among the litigators. Gradually it is coming. It does not come overnight.
What can your committee do? The answer really belongs to you. I would say you could do a lot to raise awareness, to promote human rights education in general and as part of legal training. I hope you will also be able to address the more radical areas - not terribly radical. I have not come here to cause a revolution. The practical point I have raised, the screening of legislations, et cetera, is something that is being done.
I will give you an example of a very complex country, which Senator Beaudoin knows well because he is a great expert on federalism, a very federal state: Switzerland. The Swiss are sometimes slow. They are slow in joining Europe, et cetera, but once they do things, they do them seriously. The screening of human rights-sensitive legislation in Switzerland in parliament, both at the level of the federal parliament and in the cantons, is very serious. They will not adopt human rights-sensitive legislation without having very carefully scrutinized whether this is compatible not only within the text of European Convention on Human Rights but with the case law of the European Court of Human Rights.
There are things to be done short of changing the Constitutional structure. If I were a parliamentarian - and that is not my ambition - I would also press the government to involve parliament much more than it does. When Mackenzie King was Prime Minister he made a statement that parliament should be involved in treaty making and, I think, for some time it was. Strangely enough, although there is - or maybe because there is - a growing body of international law, there is a diminishing involvement of parliament in treaty making. It is not logical.
Senator Finestone: I feel like I have been privileged to a course in international law and the fallibility of the Canadian system. Professor, I thank you for sharing all this information with us.
I would like to know where the French system fits in. You pointed out at the beginning that we use the British approach to international law. Canada was formed not only by the British. I come from a province where Quebec law is certainly reflective of France. Where does the French system fit in the application of the treaties that are signed and, respecting international law, as part of the right of the citizen if there is a treaty that has been signed?
Senator Beaudoin: Article 55.
Senator Finestone: I heard you say Article 55.
Mr. Leuprecht: Yes, well, in accordance with Article 55 of the French Constitution, ratified treaties have ranked superior to that of domestic law. Now, this being said -
Senator Finestone: Yes. What about in practice?
Mr. Leuprecht: Nowadays the practice is quite satisfactory, but it has not come easily because in France, as you know, there is quite a chauvinistic tendency. I spent most of my life there.
Senator Finestone: That is well said.
Mr. Leuprecht: International law was not particularly welcome. Even the European Convention on Human Rights in many quarters and in some of the supreme jurisdictions, in the beginning, was not very welcome. In the Conseil d'État there was resistance for some time, but I think it has been overcome.
One of the healthy lessons for France and other countries has been the case law of the European Court of Human Rights. Actually, the interesting thing is that over the years - not at present, but over all the years of operation of the European Court of Human Rights, surprisingly enough, the best customer of the European Court of Human Rights has been the United Kingdom.
Senator Finestone: You said that, sir, in your presentation.
Mr. Leuprecht: The reason was that very often there was no domestic remedy. It was worse than here because there was no constitution. There are bits and pieces of a written constitution, but no coherent written constitution. Very often under UK law there was no domestic remedy. As some distinguished British lawyers have said, Strasbourg became the constitutional court for the United Kingdom. As I said, in connection with the Human Rights Act, one of the hopes is that as a result of that there will be fewer cases in Strasbourg against the United Kingdom because British courts will now be able to apply the European Convention of Human Rights. Of course people will still be able to go to Strasbourg.
France has had a huge number of cases. I should say also that France, "la patrie des droit de l'homme," as they say, has taken a very long time to rectify the European convention. It took 24 years and it took 31 years to accept the right of individual petition. There have been politicians in France, like Robert Badinter, who have contributed a lot to opening the country up to international human rights law and many legislative reforms in France. For example, the whole area of criminal procedure has been provoked by judgments of the European Court of Human Rights.
Senator Finestone: Would you suggest then, sir, that Britain, which is now using the European court, or the European human rights law, and France, which has adapted to it in a more effective way, might be an inspiration for Canada in the sense that if this committee were to direct its thinking towards how, as individuals and collectively, we can ensure we are part of the international world of human rights and that the experience of our two founding countries might be invoked?
Mr. Leuprecht: Just on one point, I do not think that in the area concerning the relationship between international and domestic law, France, or the French tradition, has had much of an impact in Canada. I do not think so. It is really the British model, with the qualification that Britain has changed.
I am not saying that Canada should do the same thing, but, at any rate, you could theoretically incorporate the European Convention on Human Rights. You could not be a party to the European Convention on Human Rights. I am not simplistic enough to say you could simply incorporate the covenants in the same way as the British incorporated the European Convention on Human Rights. The difference is that the European Convention on Human Rights is fairly precise. It is clear.
On the other hand, much more should be done - maybe not to incorporate the text as such - but to have implementing legislation. Where there is a gap, a "trou béant," as Senator Beaudoin said, is particularly in the area of economic, social and cultural rights where Canada has ratified the covenant and there has been no implementing legislation whatsoever. Therefore, the criticism from the committee when you consider it, in all fairness, is justified.
Senator Beaudoin: Treaties are signed by the federal authority and they are implemented having regard to the division of powers between the provinces and Ottawa, so that the Civil Code of Quebec remains intact. If we enter into a convention in civil law, only Quebec or the other provinces may legislate in this field. It is a safeguard. I like the French system, but in a federal state perhaps it is not the best solution. I prefer the system that we have, but, as Senator Joyal said, we have a moral obligation to implement. I would like to have a mandatory obligation to implement. It is not the case yet.
You said we have been influenced by Great Britain, not by France. Well, it is true. Those two countries have been very great and are still very great countries. But concerning treaties, I am a little afraid that if Ottawa signs more treaties and that becomes the law of the land, the provincial jurisdiction will be in danger. That is what worries me. That is only an interjection.
The Chairman: I thought it was a supplementary question, but it was a supplementary statement.
Senator Finestone: What are the things that we can constructively do? I believe firmly that we, North Americans, cannot live on an island. We cannot isolate this whole North American continent as an island. By the way, I want to ask you, outside of the question, where the Americans stand in all of this.
I wonder if there is a study that this committee would like to undertake which would examine an evaluative model that would consider what international covenants and conventions there are, which of them seem to fit into our areas of concern - the British, French, Australians and South Africans, with the newly evolved constitutions. It is interesting that the South African constitution was very much influenced by an eminent Canadian. It would be interesting to examine those constitutions, how they apply and where we fit into the picture so that we could then give a very comprehensive report to government.
I would like the answer on America. That is the end of my questions, thank you.
Mr. Leuprecht: I briefly hinted that the United States is far less keen on ratifying international treaties than Canada is. Canada is a model in that respect, and I hope nothing of what I said was misunderstood. Canada enjoys enormous prestige internationally and it would be a pity if that were undermined. Canada not only ratifies treaties but is very often a promoter and initiator of these treaties. That is very good. The commitment of Canada to international law is far greater than that of the United States of America.
As far as the legal situation is concerned, contrary to the situation here where the conclusion of treaties is a privilege or is a right of the executive branch, in the States approval by the Senate is required. The government, for ratification of a treaty, needs approval of the Senate. The reason that some international treaties have not been ratified by the States is that the Senate refused to ratify them.
I should add to that, if I may, that not only in the states, but in a number of other federal states, in Germany and Switzerland, there a bicameral system and there is one chamber of the parliament where the Länder, or provinces or states, are represented and take part in the legislative process at the federal level. It is unthinkable in countries like Germany, Austria, Switzerland that an important international treaty that touches upon substantive issues of law could be ratified without a vote in parliament. Since parliament is bicameral, the provinces or Länder take part in the decision making process at the federal level.
Senator Finestone: It is a bicameral system, but they also have a Senate and a commons, or whatever they call it. Does it have to pass both levels?
Mr. Leuprecht: Yes.
Senator Finestone: It is not just in the Senate like in the United States.
Mr. Leuprecht: In the United States it is only the Senate. In other countries, for example, Switzerland, Austria, it is both. It is the same in South Africa; the constitution says that the negotiating and signing of all international agreements is the responsibility of the executive, but then it says an international agreement binds the republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces, which is the federal chamber.
As you say, it would be very interesting to examine other models such as the German model. Actually, Germany, contrary to what many people believe, has a dualist system, but once a treaty is approved by both chambers of parliament it is domestically applicable. It is interesting to consider all these models and I think Canada could learn a lot. I went into that into greater detail at the conference which you, Madam Chair, attended.
The Australian model is interesting also, because the participation of parliament in the treaty-making process goes much further than it does in Canada. Of course there is the power of the federal power which I think would not be easily accepted here by the provinces. Under the foreign affairs power, the federal government can impose obligations under international law on the provinces.
The Chairman: I have just come back from studying the Australian model and I am trying to figure out how to bring that information into this committee.
I would propose two cautions: the impetus for why the Australians made their changes for a treaties commission is rather unique and different than why we would move on it. Perhaps we can talk about that. The other is that there is a growing energy in the states which may lead Australia closer to the Canadian model of having to involve the states, rather than the passive nature that the states have had in the past, if I may use that phrase.
I want to ask a question now. We did not ignore the provinces in treaty making. There has been in place a federal-provincial apparatus led by ministers and bureaucrats. In the first stages, when there is a Canadian contemplation of a treaty, or an international one, we do involve the provinces, bearing in mind our system. The difficulty in the present system, as I understand it, is that it has fallen into benign neglect where the ministers have not met for ten years and the bureaucrats have.
Also, it would seem to me that that process bears examining again because while there is the treaty negotiation, it seems to be information sharing. Canada does not control the international agenda. One comes back and says, "This is what we want" and the international community says, "No, we will not." There is give and take.
The problem is it ends up, at the point of signing and ratification, that there is no step previous to that to include high level provincial involvement to say that if these are significant human rights issues then we should be in a position to have negotiated our differences and our separation of powers so that all aspects of our government could be in a position to say yes to ratification rather than being in the area. I wanted your comment on that.
The other part is - certainly in my work in the Canadian Human Rights Commission - we, in the western world, were preoccupied with political and civil covenants, attempting to bring those rights to bear in an international community whereas it appeared the communist world, led by the Soviet Union, took ownership of the economic, culture and social covenant and tried to put the community, the common good, to bear. There seemed to be no meeting of the minds of those two large blocs, led of course by the Americans and the Soviet Union. The collapse of the Soviet Union gave impetus to the second covenant, although I call them equal.
I think perhaps the events of September 11 have brought to bear on the Americans that they cannot live unto themselves and that many things, to protect themselves and to further their lives, demand international treaties. The last decade of change, readjustment and realignment has brought all of to us start thinking about the second covenant. We may have the Americans on board more than we think because they so graphically were brought into the entire world on September 11. I am wondering if you agree that some of those perspectives might give impetus for change and opportunity, first on the federal-provincial and secondly, on international work on the second covenant.
Mr. Leuprecht: Very briefly, Madam Chairperson, I agree with what you said on the federal-provincial issue. I know that civil servants meet in the federal-provincial-territorial Continuing Committee of Officials on Human Rights. One of the problems in Canada, if I may say so, is that these issues rarely reach the political level, unfortunately. They should.
I will mention another thing which is very striking. Just look at the records of the discussions in the UN treaty bodies when Canada appears. Normally, particularly when this comes to economic, social and cultural rights, the provinces should also be there. They are concerned, maybe even more than the federal government, but almost without exception the only province that turns up is Quebec. I should not make any comments, but maybe it is not only because of its commitment to international human rights law that Quebec goes to these international meetings. It is very regrettable that the provinces do not show any real interest. They are not there. The poor people from the federal government have to say, sorry, this or that is not within our competence, it is provincial competence; we are a federal state. Of course it is not a convincing argument for the members of these committees. Even after meetings, I do not think the feedback to the provinces works really as it should and that the very serious comments of both covenant committees recently are really taken on board in the provinces. This is very regrettable.
On your second question, I have believed for a long time that this dichotomy between civil and political rights on the one hand and economic, social and cultural rights on the other hand is very artificial. I often said - as I have always been outspoken - when the communist regimes were still in place and considered more closely, it is not true at all that the communist regimes were champions of economic, social and cultural rights; it was just a propaganda tour. Many of the international debates on this issue have been absolutely sterile and futile.
I often quote a nice sentence which says ``A man in need is not a free man." That is not a quotation from Marx; it is from President Roosevelt. It is very interesting to observe that at the beginning of the international human rights movement the United States was very committed also to economic, social and cultural rights. It was not only the United States. When you read René Cassin, who was certainly not a communist, he has written very good things about economic, social and cultural rights. What is now expressed in so many texts as "indivisibility of human rights" is a fundamental point. They are all interrelated. The famous dilemma of bread versus freedom does not make sense. I now am very involved with the United Nations as special representative for the Secretary-General in Cambodia, which is one of the poorest countries in the world. There you observe, on the ground, how everything is interrelated. There is no point in talking only about civil and political rights without taking into account the abject poverty of the population.
As to your question on whether the United States is coming more on board -
The Chairman: Is there an opportunity to come on board?
Mr. Leuprecht: It would be an opportunity. What struck many observers at the last Human Rights Commission in Geneva in the spring was that the new administration is even more negative on economic, social and cultural rights than the previous one. It is very negative on issues such as right to food, right to housing, right to health. I would hope, like you, Madam Chairperson, that this attitude will change, and maybe that the terrible events of September 11 would also contribute to serious reflection on these fundamental issues.
Senator Joyal: I have a case study for you, Professor Leuprecht. We currently have Bill C-7 dealing with the Young Offenders Act in the Senate. The bill is the object of a reference to the Quebec Court of Appeal. The question that the court is asked to rule on is very clearly a question that has as its orientation the obligation that Canada and the provinces have assumed under two specific international covenants, or instruments, I should say, and I will read it to you:
[Translation]
I read the text submitted to the Quebec Court of Appeal. Would the provisions proposed in bill C-7, more particularly sections 38 to 82 and following, be incompatible with international law? The Convention on the Rights of the Child and the International Covenant on Civil and Political Rights were ratified by Canada with the support of all the provinces and territories. The Government of Quebec stated it was bound by decrees 167691, of December 9, 1991, and 145876, of April 21, 1976.
In other words, if you were the lawyer of one or the other of the parties and you had to prepare your statement to the tribunal, which authority would you refer to? Towards which works or which decisions would you direct your research to defend your client's point of view?
[English]
Where is the case law? Where are the textbooks, the authorities? Where are the sources that would be helpful to you to try to justify your position so that you could convince the court, either in one case or the other, that the bill in question is in fact an infringement upon the obligation that Canada and the provinces have accepted under those two special conventions?
The Chairman: I should tell you at this point, there is no fee attached to the answer.
Mr. Leuprecht: No, I will not charge any fee.
Senator Joyal: Well, it is, in fact, an implementation of your suggestion that we should scrutinize legislation. This is a clear case where the question is raised and it is currently before us. We have to deal with this.
Mr. Leuprecht: Sure. First of all what should be done is to examine the texts of the relevant conventions. That should come, actually, as a sort of reflex. I am not sure it is already there. It should really start in the government department. If you want to legislate on such an issue, the first reaction should be to find out whether Canada has relevant international commitments.
As far as young offenders are concerned, there are very specific provisions, for example, in the UN Convention on the Rights of the Child. I would first look at the text. Many of these texts are quite clear and it is easy to determine whether the draft legislation is or is not in line with these texts.
Secondly, I would examine the so-called case law - one calls it case law - the various decisions and comments made by the UN treaty bodies, and particularly in this case by the Committee on the Rights of Child.
Thirdly, I would consider the general comments, which is a very interesting guide. The person before me referred to general comments. Most of these treaty bodies make general comments that interpret and explain provisions of these instruments. If you examine these very carefully, you would probably have an answer to your questions. I do not want to commit any indiscretion, but during my time in the Department of Justice I did draw attention to several very specific provisions of the Convention on the Rights of the Child that should not be ignored, but I will not go into detail now. I think that is roughly what I would do.
Following up on what you said previously, it might also be a good idea to consider how these problems have been dealt with in countries with similar traditions - maybe not in Saudi Arabia or Libya, but in Sweden or in a number of West European countries. That could also be useful guidance.
The Chairman: This is absolutely the final question.
Senator Beaudoin: I agree with you, but if we come to the conclusion that some articles of Bill C-7 are not in accordance with the convention that we signed, my impression, if I am not mistaken, is that the government may say, "Oh, we have not implemented the treaty." That is one possibility, or it may say Bill C-7 complies 100 per cent with the Convention on the Rights of the Child. This would be difficult, in my opinion. It may say that. In your opinion, is this good enough to give effect to our obligations when we sign a treaty? Is it good enough to say that we have a perfect attitude? I am not sure.
We have signed the convention. There is no law stating clearly that it be implemented. The government may always say, "We have Bill C-7, and if the bill is adopted, we conclude that we are not violating the convention at all." Is this good enough with respect to the implementation of the treaty? I am not sure. We have inherited the dualistic system. In the United States when the Senate says yes, and in Europe when a treaty is signed it becomes the law of the land. Here we have to legislate. If we do not implement it is not the law of the land.
Perhaps we may plead that we are a democracy, we have signed a treaty, we have a moral obligation to give effect to the treaty, and perhaps a little more than that, but only the Supreme Court may say that. Only the Supreme Court may come to the conclusion that we have more than a moral obligation to legislate.
In the secession case the expression "Constitutional obligation" was used. Everybody was surprised that was in the judgment of the court, in the advisory opinion of the court. Some people asked why that was done. The fact is the Supreme Court did it and that is the law of the land now. Even if in practice we may go against an advisory opinion, in practice we follow it.
This is why I attach such importance to what is before the Quebec Court of Appeal: should we discuss that in Parliament? I think we may, because we are not bound by the sub judice doctrine. I do not know what you think about that, but it might be useful to have your reaction on this because it is before the court.
Mr. Leuprecht: Madam Chair, on the one hand it is before the court and it will be very interesting to see what comes out of this. Actually, there is another very interesting and important case that is now before the Supreme Court, the Gosselin case. That is not on juvenile offenders. I am coming back to economic, social and cultural rights.
With regard to your question, Senator Beaudoin, I would say two things. In the Canadian system there is a presumption that parliament does not legislate in contradiction of international obligations of the country, so I think parliament also has a duty to very carefully consider the question of compatibility.
Secondly, it has also been expected that the government not propose anything to parliament that would be contrary to international obligations. I mentioned earlier that Lord Denning in one of his decisions said it was to be assumed that the Crown, in taking its part in legislation, would do nothing that was in conflict with treaties. There is an onus on the government, but there is also on onus on the parliament, and, of course, there is an onus on the court, but that is the beauty of a system that has the rule of law, a democratic system with separation of powers. So that would be my brief answer to that. It would be wrong for parliament simply to swallow what the government presents.
We know the reality of how parliamentary majorities work. Professor Jacobs, a very distinguished old friend of mine, has written very pertinently about the fact that this so-called parliamentary sovereignty very often does not mean much anymore when you consider the practice of democratic regimes nowadays where there is a parliamentary majority, the government pushes through whatever it wants. I hope it is not like that.
Parliament has a heavy responsibility and it would be good if parliament could develop its role in the treaty-making process and in legislating in areas that are governed by international human rights treaties.
Senator Beaudoin: I have another question. I may be wrong on this, but this is the first time, to my knowledge, that we are discussing in a committee such as this a subject of greatest importance that is already before the court. I do not think we are bound by the sub judice doctrine because we are the legislative branch and they are the judicial branch. If we stay in our own domain, there is no problem.
Senator Joyal: We have no standing in the court. When we discussed the extradition bill, there was a case before the Supreme Court dealing specifically with the point that was debated in Parliament.
Senator Beaudoin: I am sure we may do it, but this is the first time it is happening.
The Chairman: We are discussing.
Senator Beaudoin: And we will discuss that probably for weeks.
Senator Finestone: Is it still on the floor of the house?
Senator Joyal: No, it is in committee. We started last Thursday.
The Chairman: I do not want to move that committee's agenda here. I am very conscious of the separation of powers in the committee structures, so I will end here.
I will just remind the committee members that I want your opinion as to whether we should sign off that letter.
Before I do that, Dean Leuprecht, I want to thank you for the advice you gave us, and, as you can see from the questions, you have us thinking and perhaps have pointed us in a way of furthering the agenda on the human rights machinery, if not the human rights themselves. I think you have us all wishing that we could continue in your class. Thank you for taking this time tonight. I trust that we can call on you in the future when we need to.
Honourable senators, I hope you have had a chance to read the letter. Are you in agreement on the signature?
Hon. Senators: Agreed.
Senator Beaudoin: My first reaction is that we should sign it, but on the other hand, is it not stated that the two whips have not consulted the chair? Is it the case?
The Chairman: That is the case. They telephoned the clerk to advise the clerk of the change. The clerk immediately contacted me. I am not making any comment in the letter except that I do not think that is the way to go. We were doing an education process and I think the kind of debate we had today more Canadians should have seen. That is the reason for videotaping.
Senator Beaudoin: I agree.
The Chairman: This was one of the days that I specifically wanted videotaping because we have excellent witnesses. Some witnesses are more specific on certain areas. This I think would have been very helpful in the debate in Canada about support -
Senator Beaudoin: We are five members on this committee.
The Chairman: Yes. I do not think it is a difficult letter. I think it is going to be one that says videotaping is very important. I do not mind yielding when we have specific witnesses who have much to give the committee but maybe not so much to the public.
The committee adjourned.