Proceedings of the Standing Senate Committee on
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
Senator A. Raynell Andreychuk (Chairman) in the Chair.
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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 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
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.
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
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.
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
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.
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:
- 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
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
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
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
To conclude this first part, the situation is unclear.
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.
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
Lastly, can we think about more radical solutions?
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
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.
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.
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
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 BurnsandRafay. 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
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.
I wish to draw to your attention to the following words because I think this is
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.
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
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
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
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
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
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
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
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
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
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
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:
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?
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
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
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
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
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
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.