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Proceedings of the Standing Senate Committee on
Human Rights

Issue 2 - Evidence, June 11, 2001

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OTTAWA, Monday, June 11, 2001

The Standing Senate Committee on Human Rights met this day at 12:08 p.m. to examine issues relating to human rights, and, inter alia, to review the machinery of government dealing with Canada's international and national human rights obligations.

Senator A. Raynell Andreychuk (Chairman) in the Chair.

[English]

The Chairman: This is the second session of the Standing Senate Committee on Human Rights authorized to examine issues relating to human rights and, inter alia, to review the machinery of government dealing with Canada's international and national human rights obligations.

We have three groups of witnesses. I understand the first two groups will, by agreement, combine as one panel. We will restrict our questions until they are finished, and hopefully that will be more efficient both for the witnesses and for our schedule.

I am pleased that the witnesses are prepared today. It is the end of June and the end of the parliamentary session and we want to proceed before the summer to get some of the information before us.

Appearing before us today are Norman Moyer, Assistant Deputy Minister, Canadian Identity, Chair of the Continuing Committee of Officials on Human Rights; Adèle Dion, Director, Human Rights, Humanitarian Affairs and International Women's Equality Division of the Department of Foreign Affairs and International Trade; John Holmes, Director, United Nations, Criminal and Treaty Law Division of the Department of Foreign Affairs and International Trade; and from the Department of Justice, Ms Irit Weiser, Director, Human Rights Law Section. Accompanying Ms Weiser is Mr. Paul Rishworth of University of Auckland, who I understand is on an exchange working in the Department of Justice. Of course the senators will be free to put any questions to Mr. Rishworth, if they so wish.

Mr. Moyer, we will go in the order of the program here. I invite to you make some opening comments. We try to keep the opening comments informative, but short enough that there is enough time for the questions that the senators have to ask. I cannot control the senators as much as I can the witnesses, so that is why I am making my plea to you.

Mr. Norman Moyer, Assistant Deputy Minister, Canadian Identity, Chair of the Continuing Committee of Officials on Human Rights: Thank you very much for your invitation here today. We at Canadian Heritage appreciate very much the decision made by the Senate to focus, in a more concentrated way, on human rights. Your attention will be a benefit in this process.

These hearings also come at a useful time for my committee. The Continuing Committee of Officials on Human Rights is in the process of reviewing its mandate and the way it operates. Therefore, any comments that you may have on the nature of the committee will be much appreciated.

In 1968, the cabinet gave the Department of the Secretary of State a range of activities related to the promotion and protection of human rights. The basic thrust of this mandate has remained unchanged over the years. We work with human rights, NGO groups, educators and specialists to carry out public education activities. We are responsible for intergovernmental consultations within Canada, and for consultations and coordination regarding the ratification and implementation of international human rights treaties.

Since the 1960s, the Department of the Secretary of State has been responsible for the preparation of Canada's reports to international bodies on our implementation of international human rights treaties. In January of 1991, these powers were transferred to the Department of Multiculturalism and Citizenship and in 1993 to the Department of Canadian Heritage.

I have been invited here today to speak in my capacity as the Chair of the Continuing Committee of Officials on Human Rights. I should now like to focus my comments on that committee.

The Department of Canadian Heritage coordinates consultations between the federal, provincial and territorial governments regarding the development, ratification and implementation of Canada's international human rights obligations.

In December 1975, the federal and provincial ministers responsible for human rights approved a series of modalities and mechanisms for the conduct of future considerations that provided for regular meetings of government officials through the creation of the Continuing Committee of Officials on Human Rights.

The continuing committee fulfils its mandate by encouraging information exchange among governments with respect to the interpretation and implementation of international human rights instruments and related programs. The committee facilitates the preparation of reports on the implementation of international human rights instruments, as well as other reports requested by international organizations. It also provides views with respect to the development of Canada's position on international human rights issues. However, each jurisdiction retains its own independent responsibilities. The committee's members also share information on human rights education and promotion activities within their jurisdictions.

The committee first met in 1976 and has met twice yearly since then. I chair the committee in my capacity as the official representative for the Government of Canada. The department's human rights program acts as the permanent secretariat for the committee and ensures liaison with federal, provincial and territorial officials. All provincial and territorial jurisdictions are represented on the committee. The officials, appointed by their respective governments, come from various departments and ministries, for example, The Department of Justice, the Attorney General of Canada, and Citizenship and Immigration. The principle federal partners are the Department of Foreign Affairs and the Department of Justice. Other federal departments may also be involved, including the Department of Indian and Northern Affairs, the Department of Health and the Status of Women.

It is important to note the nature of the continuing committee. It is primarily a consultation and coordination mechanism. It is not a decision-making body. Through the committee governments share information and discuss issues related to international human rights instruments. Each official plays a similar coordinating role within his or her jurisdiction. The issues covered by the international human rights instruments are numerous and varied; from health to education, employment and discrimination. Therefore, official representatives will probably not have the primary responsibility for the subject area within their government.

As with most federal-provincial-territorial committees, the meetings of the Continuing Committee are held in camera where governments exchange information on issues openly and freely.

The committee is currently engaged in ongoing discussions on the possible signature and/or ratification of three instruments: The OAS, American Convention on Human Rights, the Optional Protocol to the Convention for the Elimination of All Forms of Discrimination against Women, and the Optional Protocol to the Convention on the Rights of the Child, on the Sale of Children, Child Prostitution and Child Pornography.

I should emphasize again that the committee is not a decision-making body. In the committee views are shared and information is taken back by officials to their relevant ministries. Decisions with respect to international instruments are made through established cabinet procedures in each jurisdiction.

The Continuing Committee of Officials on Human Rights is the mechanism through which the department of Canadian Heritage coordinates the preparation of Canada's reports. Canada is required to submit reports to the UN on the six principle human rights instruments to which we are a party: The International Covenant On Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of all forms of Racial Discrimination, the Convention on the Elimination of all forms of Discrimination against Women, the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention on the Rights of the Child.

The frequency of the submission of these reports varies between two and five years. Canada is legally obligated by international human rights treaties and is committed by its membership in international organizations to prepare reports. Reporting is an essential part of the implementation.

Under the modalities and mechanisms adopted in 1975 by the Federal-Provincial Conference of Ministers, each province and territorial government has the right to prepare its own report on its implementation efforts. These provincial and territorial contributions, together with the federal government's own section, constitute Canada's reports.

Different departments share in the responsibility for the preparation of the federal section. Two reports have recently been submitted to the UN, Canada's 13th and 14th reports on the International Convention on the Elimination of all Forms of Racial Discrimination and Canada's second report on the Convention of the Rights of the Child. There are currently four more reports being prepared: The fifth report on the Convention of the Elimination of all Forms of Discrimination Against Women; the fourth Report on the Convention Against Torture; the fourth Report on the International Covenant On Economic, Social and Cultural Rights; and the 15th and 16th reports on the International Convention on the Elimination of all Forms of Racial Discrimination.

In the past few years there have been delays in the preparation of federal and provincial reports. This has resulted in reports being overdue at the UN. However, it is planned that all outstanding reports will be submitted before the end of the current fiscal year. At that time Canada will be up to date on all of its submissions.

The Department of Canadian Heritage and the continuing committee have been working together to help ensure that our reports are submitted in a more timely fashion in the future.

Following the submission of a report, Canada is invited by the United Nations to appear before the responsible UN committee. The review of reports is normally scheduled anywhere from one to three years following submission. The Department of Foreign Affairs and International Trade coordinates Canada's preparation for appearances before the committee.

Following the review of a report, the respective UN committee issues concluding observations. These observations are shared with provinces and territories. The continuing committee will subsequently discuss the review and the concluding observations. Each representative of the committee ensures that the concluding observations are passed on to the responsible programs within their jurisdiction. It is left to jurisdictions to decide on how best to address those observations. The reactions are then reported to the UN committee in the next report.

I have provided your committee with copies of a background document on the origin and history of the Continuing Committee of Officials on Human Rights. Included in this document is the mandate of the committee, various guidelines developed by the committee, and a list of multilateral treaties in the area of human right to which Canada is a party. Additional information on Canada and the UN human rights system, as well as copies of Canada's reports to the United Nations and related documents, may be found on the website of the human rights program.

Ms Adèle Dion, Director, Human Rights, Humanitarian Affairs and International Women's Equality Division, Department of Foreign Affairs and International Trade: I am also pleased to have an early opportunity to address this committee. I will speak under two plain subject headings. The first is the role played by the Department of Foreign Affairs and International Trade in carrying out Canada's international human rights policies and activities. The second is the role Canada plays and how we work with the international human rights system.

In 1986 Parliament's Special Joint Committee on Canada's International Relations declared an all-party consensus that international promotion of human rights is a fundamental and integral part of Canadian foreign policy. This is the background to my department.

In 1995, in response to the 1994 parliamentary review of foreign policy, the government issued a statement that reaffirmed the central role of human rights in Canada's foreign policy. The statement confirmed that human rights are to be considered not only as a fundamental value, but also as a crucial element in the development of stable, democratic, prosperous, societies that are at peace with each other.

My division, the Human Rights Humanitarian Affairs and International Women's Equality Division, is one of five divisions comprising the Global Issues Bureau, which is responsible for management of issues cutting across various aspects of Canada's relations with other countries.

In addition to defending and advancing Canada's interests related to international human rights, my division is also responsible for international humanitarian affairs; international women's equality and rights; international population questions; migration and refugees; humanitarian assistance; pandemics, and children's rights; rights of persons with disabilities; and other social policy issues.

The human rights section of the division provides policy advice to our department and our ministers on international human rights matters; manages and leads Canadian participation in UN human rights bodies; and provides policy advice for Canada's participation in regional fora such as the Organization of American States and the Organization for Security and Cooperation in Europe.

A great deal of time is dedicated to consulting with other interested parts of the department. Our key partners are officials from the geographic bureau who have the lead responsibility for managing all aspects of Canada's bilateral relations with other countries, and our relations with regional organizations such as the OAS and the OSCE.

All aspects of a bilateral relationship include the human rights dimension. This decentralization of responsibility reflects the fact that human rights concerns represent an integral, sometimes pervasive factor in relations with a large number of countries in most regions of the world. Our division's role is to advise our colleagues on human rights policy and international human rights standards, to seek to ensure an effective and consistent Canadian approach.

Members of the division are also in frequent, usually daily, contact with officials from a range of other interested government agencies and departments, such as Canadian Heritage, justice, CIDA, Status of Women Canada, and many others depending on the particular issue.

We are also responsible for coordinating a wide range of consultations with Canadian non-governmental organizations and with both academics and individuals. We do this throughout the year.

Now a few words on Canada and how we work with the international human rights system. I will break down our work into two main categories; the United Nations human rights mechanisms, and the United Nations treaty bodies.

Canada considers that multilateral organizations, especially the UN, are often the most effective channels for influencing other governments on human rights questions. The international human rights system is complex, even by UN standards. This is particularly true when you look at the truly bewildering array of funds, rapporteurs and working groups that operate under the umbrella of the Commission on Human Rights.

This is a consequence of the way in which the system has evolved. Essentially, it has been an incremental process built up over the years to secure a rapporteur to monitor a given country's situation, or to study the worldwide incidence of a specific violation, such as torture.

Human rights has become an increasingly important element of a wide variety of UN bodies. They include the Commission on Human Rights; the UN General Assembly; the Commission on the Status of Women; the Commission on Social Development; the Commission on Population and Development; and even the UN Security Council.

My division is responsible for two key objectives of Canada's approach to the UN. First is the strengthening of human rights machinery and second is the integration of human rights and women's equality perspectives into overall UN operations.

We pursue these objectives at UN meetings such as those I just mentioned and during special sessions of the UN, as well as through effective ongoing collaboration with like-minded governments and UN officials in the United Nations secretariats.

In 1998 the fiftieth anniversary of the Universal Declaration of Human Rights was celebrated. As an expression of Canada's commitment to the promotion and protection of human rights, the Canadian head of delegation to the UN Commission issued a standing invitation to although thematic human rights mechanisms of the UN to visit Canada.

I will address treaty bodies before turning to my colleagues who will speak a bit more in depth on international treaties.

As indicated by Mr. Moyer, Canada is party to all six of the major UN human rights treaties. As noted, we regularly submit reports on Canada's performance to these committees. We believe this helps us to strengthen our reputation as a guarantor of our citizens' rights.

We currently have two Canadian independent experts on the UN treaty committees. One is Dr. Maxwell Yaldin who is an independent expert on the UN Human Rights Committee. That committee monitors performance on the International Convention on Civil and Political Rights. The second expert is Professor Peter Burns from the Faculty of Law at University of British Columbia who is currently the Chair of the UN Committee against Torture.

We consider that Canada is well represented in the six UN human rights treaty committees. Indeed, a greater representation would, be inappropriate as it would lessen the opportunity for independent experts from other regions of the world to participate on these committees.

Finally, we do believe as well that an important corollary of Canada's UN efforts to encourage other countries to respect human rights is our readiness to have our human rights record assessed at the international level. In that respect, we do welcome the recommendations of the different UN committees; we take them seriously and we make our best efforts to address them.

Mr. John Holmes, Director, United Nations, Criminal and Treaty Law Division, Department of Foreign Affairs and International Trade: I am pleased to have this opportunity to address the newly created Standing Senate Committee on Human Rights. The purpose of my introductory comments is to describe briefly the role that the Department of Foreign Affairs and International Trade plays in the in the treaty ratification process and in the negotiation of international human rights instruments.

The Department of Foreign Affairs Act gives the department statutory authority to conduct and manage international negotiations as they relate to Canada. Accordingly, the competence to authorize and conduct negotiations for a treaty rests primarily with DFAIT. Policy approval for entering into negotiations will normally be sought from either cabinet or from the Minister of Foreign Affairs.

Within the department, the United Nations Criminal and Treaty Law Division has responsibility for providing legal advice to the department on a range of international law subjects that include human rights. The division plays an active role in the elaboration of new international human rights instruments. Frequently this role is to lead the Canadian delegation at the negotiations. Alternatively, members of the division will provide legal advice to the Canadian delegation either as a member of that delegation or from headquarters.

The elaboration of international human rights standards occurs in several fora at which Canada participates. Of course, the United Nations is the most important body because of its near universal membership. My colleagues have described the UN system in terms of the Universal Declaration of Human Rights and the six major human rights instruments.

Regional bodies such as the Organization of American States and the Organization for the Security and Cooperation in Europe, the OSCE, have also adopted important human rights standards.

The OAS has been adopting treaties and declarations on human rights since its establishment. Many of these, such as the American Convention on Human Rights, were elaborated before Canada joined the organization in 1990.

There is no uniform practice when Canada participates in negotiations on an international human rights instrument. The size and composition of the Canadian delegation will vary depending on the nature of the instrument being prepared. For a major human rights instrument, the delegation may be composed of representatives of DFAIT and other government departments such as the Department of Justice. For an instrument that addresses a broad range of issues falling under provincial jurisdiction, representatives of the provinces or the territories may be included in the Canadian delegation. Representatives of the federal government speak on behalf of Canada with provincial representatives providing advice to the delegation.

Prior to the commencement of negotiations, the Canadian delegation will normally seek approval from the Minister of Foreign Affairs, for the delegation itself and for the position it will take in negotiations. The instructions to the delegation may be quite general in nature, to give latitude to adjust to changing circumstances and new proposals made during the negotiations.

Generally, Canadian delegations negotiating such instruments are guided by several criteria: to ensure that the new instrument does not undermine existing international human rights standards; to elaborate standards that address the human rights concern and also meet broad support among states so as to ensure widespread acceptance of the future instrument; and, to develope standards which are in broad conformity with Canadian laws and practice.

The last point should not be understood to mean that Canada is unwilling to accept new human rights standards. Rather, Canadian delegations seek to promote laws and practices that have served Canadians well and which may be used as models internationally. The delegations also seek to avoid significantly different approaches that might make Canadian acceptance of the instrument more difficult.

Many human rights instruments take several years to be negotiated. Between sessions, delegation members will generally inform interested government departments and the status of the negotiations is usually included in the agenda of the continuing committee.

In some cases, a more regular intersessional consultative approach may be put in place. For the Convention on the Rights of the Child, the continuing committee established an informal federal-provincial-territorial subcommittee to review developments at previous negotiating sessions and, as appropriate, refine Canadian positions. Ultimately, this model proved to be of exceptional value, since it permitted Canada to sign and ratify a complex human rights treaty in a very expeditious manner.

Similarly complex instruments where Canada was not actively involved in the negotiations, such as the American Convention on Human Rights, have required extensive discussions among federal officials and with the provinces and territories.

Once an instrument is adopted by the UN or another international body, officials must examine it carefully to determine if Canada could sign and ratify and what the implications might be. If, as in many cases, provincial interests are affected, then consultations will be initiated or will continue with the provinces and territories, for example, through the mechanism of the continuing committee. Once officials have completed their analysis recommendations may be made to ministers or cabinet. The ministers or cabinet must authorize Canadian signature and ratification. The process of study can be lengthy.

When Canada considers ratifying or acceding to an international human rights instrument, the issue of reservations or statements of understanding may arise. Canada does not, as a matter of principle, support the widespread use of reservations for multilateral human rights instruments. However, for certain specific cases reservations may be acceptable, especially if the overall aim is not to undermine human rights but rather to balance conflicting obligations in the instrument concerned. Where other countries make extensive use of reservations, or enter broadly worded ones purporting to limit the entirety of the instrument, Canadian policy is to encourage that state, to withdraw these reservations.

When there is political approval for Canada to proceed with ratification of, or accession to, an international human rights treaty, the role of Parliament will depend on the nature of the instrument as well as Canadian laws and policies with respect to the obligations contained in the instrument. If new Canadian laws or amendments to existing ones are required, the proposed legislation is introduced in Parliament prior to Canadian adherence. Parliament will frequently debate the international treaty in the context of considering the bill before it.

In cases where no legislative changes are required, Parliament may not be asked to consider Canadian ratification before that step is taken. However, the Department of Foreign Affairs and International Trade, through my division, tables all treaties that Canada has ratified and that have not otherwise been brought to Parliament's attention. These are now provided in electronic form.

In closing, I wish to comment on an issue raise last week. Several witnesses called on Canada to adhere to a number of international human rights instruments. I will not comment on these now in my introductory comments, but I am prepared to answer specific questions later. My colleague from the Department of Heritage has mentioned that three of those instruments the are under active consideration. They are: The American Convention on Human Rights; the optional protocol to CIDA; and the optional protocol to the Convention on the Rights of the Child.

Ms Irit Weiser, Director, Human Rights Law Section, Department of Justice: My presentation is on domestic implementation of Canada's human rights treaty obligations from the perspective of the Department of Justice. I will start with a brief review of the Canadian legal and constitutional framework, or what I also call immovable mountains, because it is largely a framework of constraints on parliamentary and government action in the implementation of international human rights. Next I would like to tell you what we at the officials level do to get through the mountains. I will also speak briefly about other potential options.

The first constraint that I want to mention is that in Canada treaty making is an executive act and therefore parliamentary approval is not required for Canada to enter into international agreements.

The second immovable mountain concerns the nature of federalism. According to a 1937 case, often referred to as the labour conventions case, the federal executive alone is empowered to enter into international treaties. However, the federal government cannot legislate to implement the treaty in areas that would otherwise fall within provincial jurisdiction. This is in contrast to other federations, such as Australia, where the federal government retains the residual power to legislate in furtherance of a treaty even if the subject matter typically falls outside federal jurisdiction.

The third immovable mountain relates to the fact that international treaties in Canada are not self-executing. In other words, an international treaty alone cannot form the basis of an action in domestic courts. The treaty must first be incorporated into a domestic statute.

Why do we not routinely put all treaties into legislation?

First, human rights treaties often concern matters of exclusive provincial jurisdiction, and treaty ratification does not change our constitutional division of powers.

Second, even in areas of federal responsibility, the result of routinely legislating treaties would often be nonsensical. I would like to offer several examples.

The Covenant on Civil and Political Rights, the Convention on Elimination of Discrimination against Women and the Convention on the Rights of the Child all contain some form of guarantee of freedom of expression. To legislate three different freedom of expression guarantees, none of which are worded in the same way, could result in inconsistent legislative statements, and it is at a minimum a confusing legislative policy approach. Remember that all of these legislative statements of freedom of expression would then be subject to the same guarantee contained in the Canadian Charter of Rights and Freedoms.

I would like to offer another example. According to the Human Rights Committee, which is the body responsible for overseeing the Covenant on Civil and Political Rights, states violate the protection against torture by extraditing individuals to face the death penalty if the method of execution is gas, asphyxiation or electrocution. Return to face the death penalty by lethal injection is not a violation of the covenant's prohibition against torture. As you know, return to face the death penalty was recently examined by our Supreme Court under section 7 of the Charter, which is the right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice. It was held that the Minister of Justice could not return the affected individual without seeking assurances from the United States that the death penalty would not be imposed. The method of execution was an irrelevant consideration.

There needs to be a translation exercise from the international to the domestic context whenever we implement a treaty. An offence of disappearing someone, another subject matter of treaties, would mean little in the Canadian Criminal Code. Murder, kidnapping, and forcible confinement all address the same evils in a way that makes sense in the Canadian legal system.

I want to look at the Canadian judicial treatment of ratified treaties. This is perhaps more malleable than an immovable mountain, but it is a significant land mass we have to be aware of when developing strategies for implementation. I will look at this aspect in a very summary fashion because, I know your focus is on the machinery of government and not on the approach of the judiciary.

Treaties in Canada are not self-executing, but they may inform the interpretation of domestic laws. The situation may be different depending on whether the court exams the ordinary legislation as opposed to the constitutional provision.

In respect to ordinary legislation, the courts have said that judges should strive to interpret laws in accordance with relevant international obligations. However, if the express provisions of the domestic statute are contrary to Canada's international obligations the former statute will prevail.

The situation with respect to constitutional provisions is somewhat more nuanced. In summation, the Supreme Court has said that the judiciary is not bound to apply Canada's international human rights treaty obligations in construing the Charter, although they will be a relevant and persuasive factor in the court's interpretation of the Charter.

All of these immovable mountains that I have just described combine to make the Canadian system both unique and, from a structural perspective, one of the most complex in the world for the purposes of implementation of international treaties.

What is done domestically so that Canada can ratify human rights treaties? As a prelude to ratification, the officials of the Department of Justice consult with colleagues in other federal departments; other agencies; the provinces and territories through the vehicle of continuing committee; and with Aboriginal groups and other non-governmental groups. This consultation determines several things. It decides whether existing domestic laws and policies already conform to the treaty obligations. It determines if there are inconsistencies and if there are it decides whether new legislation and policies should be adopted or whether existing legislation and policies should be amended. And finally, it determines whether it is appropriate to maintain the domestic position even though it is inconsistent with the treaty provision and enter a reservation or a statement of understanding.

Frequently, various approaches are adopted depending on the particular provisions of the treaty and the jurisdiction within Canada. For example, prior to ratification of the convention against torture, a new offence of torture was added to the Criminal Code to which was attached universal jurisdiction.

A comparison of the terms of the Convention on the Rights of the Child with domestic law and practice also raised concerns. For example, a reservation was filed to Article 21 of the convention that ensures that the adoption of a child is authorized only by competent authorities in accordance with applicable laws and procedures. As it was unclear at the time of ratification whether this article would encompass Aboriginal customary adoptions a reservation was entered.

What else might be considered to improve implementation of Canada's human rights treaty obligations? I would like to look at two things. First, as indicated under the Canadian system, treaty obligations are not necessarily enforceable through the domestic legal system. Thus, Parliament has a significant role in the observance of our treaty obligations, perhaps in the review of bills, perhaps elsewhere.

I understand that you will be receiving presentations on the approaches and experiences of other similar jurisdictions, such as Australia, and hopefully that will help to mark other paths that Canada might take. Professor Rishworth is here with us today and he has insights into the New Zealand approach.

The second possible path concerns some sort of ongoing review. The extensive review conducted prior to ratification of the treaty means that the government, at that point in time, is well informed of the interaction between the treaty and domestic law. Outside of that exercise, there may be room for all of the government, parliamentary and bureaucratic machinery to better incorporate human rights treaty considerations in the course of their work. This is not easy. I can not be a formalistic exercise. Apart from the myriad of treaty obligations Canada has undertaken, many of them overlap and some are not easily discernible. At times the language of international instruments does not translate into fully enforceable legal obligations.

Also, the interpretations of international human rights provisions are often skeletal in comparison to the rich and considered jurisprudence we have in Canada. For example, there is little doubt that the Supreme Court has examined the underlying values, purpose and application of such fundamental rights as equality, freedom of expression, and right to counsel, and so on, in greater depth than any international body. In some areas, Canadian human rights legislation and thinking is way out ahead of the international movement. Same-sex issues are a clear example of this. The international community is far from a consensus on whether sexual orientation is even an unacceptable ground of discrimination.

Finally, the scope and content of treaty provisions are formed in a somewhat nebulous manner. Within our borders we know that ultimately it is the Supreme Court that identifies the principles embraced by various Charter rights and freedoms and applies them in specific fact situations. There is far more ambiguity at the international level. For example, I have already mentioned the conclusions of the Human Rights Committee that states violate the prohibition against torture by extraditing someone to face the death penalty if a certain method of execution is used.

I believe are you also familiar with this committee's views in the Waldman communications, but the human rights committee and others like it do not make international law. Their pronouncements are clearly persuasive and they warrant very serious consideration, but they are not binding jurisprudential statements. Rather, the interpretation of "international norm" is solidified through a convergence of many factors that include: state practice, domestic court announcements, academic writings, and the conclusions of international bodies.

All of this is to say that there is room to better incorporate international obligations into the parliamentary or law-making process. It is an important inquiry, but the path for doing so requires a great deal of rigour and awareness that sometimes resorting to an international body can be ambiguous or even disappointing. Other times, international law will inform and enrich our international domestic decisions as Burns and Rafay so aptly demonstrated. The challenges are as great as the values we seek to realize.

Senator Kinsella: Let me begin by asking Mr. Moyer: Is the continuing committee a committee of officials that is responsible to individual ministers across Canada? Is that correct?

Mr. Moyer: That is correct.

Senator Kinsella: Would you describe for members of this committee who those ministers across Canada tend to be?

Mr. Moyer: It varies from jurisdiction to jurisdiction. Often it is in the area of justice. The attorneys general would tend to be the most common place, but sometimes it is in the department of culture or education. I am not sure what the full range is.

Senator Kinsella: There is a cross-section of ministries that are involved. In some provinces it is the Minister of Labour as well.

You have raised the fact that the continuing committee is not a decision-making body. The decision-making body is the ministers. Is that not correct?

Mr. Moyer: Each jurisdiction makes its decisions through its normal executive process. So the ministers and cabinets of the jurisdictions decide.

Senator Kinsella: When was the last time that the ministers responsible for human rights in Canada met?

Mr. Moyer: The last meeting was 13 years ago.

Senator Kinsella: So the ministers responsible for human rights legislation met thirteen years ago to oversee matters inclusive of the work that your continuing committee does, namely, they examined whether Canada should ratify a new instrument and the prepared reports on compliance mechanisms under those treaties that we have ratified.

Mr. Moyer: We need to be careful about the conclusion drawn from that. The ministers to whom the members of my committee report are frequently ministers who are playing a coordination role, and would not be the principal decision makers in their own cabinets or executives on specific human rights issues.

You need to determine whether there is a human rights issue being debated in one field or another of human rights. Are there federal-provincial mechanisms for discussing those things? Very frequently, it could be the federal-provincial committee of ministers of justice who would discuss a key element of human rights, not the ministers with my kind of coordinating responsibility of the ministers in my committee.

Senator Kinsella: If this committee of Parliament would be interested in providing oversight to what the activities of the executive, would you have any advice? You alluded to the fact that the mandate of the continuing committee is under review. The members of this committee are interested in learning the nature of the machinery that is established and operating. As parliamentarians, whether in the senate or in the other place, we might very well want to discover the best means by which we can provide parliamentary oversight, which, of course, is the fundamental principle by which our parliamentary democracy operates.

Could you share some reflections on that?

Mr. Moyer: The best ways and means of carrying out parliamentary oversight would be far more effectively answered by you than by officials from any department in the government.

What goes on in my committee, which is largely an information sharing and coordinating committee, would be of less interest and less pertinence for parliamentary oversight than the actual ministries that are looking at specific human rights issues.

Senator Kinsella: Let us turn to a practical example. You and your colleagues have suggested that there is a question of whether Canada should ratify the American Convention on Human Rights. Testimony has been given that discussions are underway concerning that issue. Those discussions have been underway for some ten years. Is that not correct?

Mr. Moyer: That is correct.

Senator Kinsella: If we wish to have a sense of the status of those discussions, or what the problems are, what would be the best means or machinery to bring that about?

Mr. Moyer: Since we are talking about something that is at the developmental stage, where the issue is ratification, you would need to seek opportunities to talk to the people in the Department of Foreign Affairs and International Trade. Foreign affairs manages Canada's relationship in that respect. They would outline the state of the debate and the issues that remain outstanding.

Senator Kinsella: Are you suggesting, therefore, that we need to invite the Minister of Foreign Affairs to appear before the committee? Do you suggest that we also invite the Minister of Justice, the Minister of Canadian Heritage and all ten provincial ministers plus territorial ministers? Is there not a more workable solution?

Mr. Moyer: At the federal level you could obtain most of the information on that issue from several ministers. The extent to which you want to explore the concerns that various provincial jurisdictions have, would, in fact, depend on information that those jurisdictions would be willing to provide.

Senator Kinsella: Another question was raised the other day.

The Chairman: I will permit myself a supplementary on that. I am concerned, that human rights is a complex field and the federal government is a complex bureaucracy and political system. Each provincial system is equally complex.

Do we make inquiries at your interdepartmental committee to obtain information? If I am interested in the state of a covenant, is your committee the place to make my inquiry? You quite nicely pointed out that it would be the Department of Foreign Affairs and International Trade and, perhaps, one other one connected with the Organization of American States. Are you really the key for the coordination of everything and would you have the information about the status of each negotiation throughout the system?

Mr. Moyer: We know the raw information on the status. If you want more detailed knowledge of what lies behind that, you would go to the specific substantive departments. If it were an issue related to labour, you would go to the Department of Labour and elsewhere.

The Chairman: However, Mr. Moyer, you would be the one who could tell us where it is in the system.

Mr. Moyer: We could give you the first reading of where it is.

The Chairman: If you are the committee that meets with the provinces and the federal officials for the start of a covenant, and everyone is in agreement, then the process begins. The provinces are informed and your committee brings back the information and everyone seems to be in accord with events as they occur. If one of the jurisdictions does not agree, what is the trigger to bring the political actors into discussion? Do they never meet in a dialogue, but rather they simply return to their respective parties and work by correspondence, or through the bureaucracy?

Mr. Moyer: Depending on the issue of substance, ministers may well have other fora in which they meet to discuss a specific area of substance that could arise in a committee. It is not done in the continuing committee. The bodies in which it would be done vary. One of my colleagues might like to add to that.

The Chairman: Is there someone who wants to add to that?

Mr. Holmes: We decided that it would be appropriate if we added to that. If Senator Kinsella is asking about what department should be talking about the 11 or so instruments that were mentioned by witnesses last week, and where Canada stands, we can provide some information today. I will respond to some of the questions that have been raised on specific instruments. However, it is difficult because there is a process, which my colleagues and I have tried to outline, of study and analysis.

That can take some time. It has to be studies by officials at the federal level and then with our colleagues at the provincial and territorial levels. We have to be careful, because in some of the cases of these instruments a political decision has not yet been made to move forward with signature, or signature and ratification or access, as in the case of the American conventions.

We can provide some information on some of the issues that are being considered. My colleague, Mr. Moyer, indicated that for information in respect to our position on these issues, and on the direction in which we are headed, that would be best left with the appropriate ministers.

The Chairman: It was only a question for Mr. Moyer. Mr. Holmes, you quite rightly pointed out that it is an executive act that puts us into an international obligation by signing. However, the ratification is a much more complex issue. In our federal system there has to be an interface between the political players. If everyone is on-line, then obviously, an informational thing can be done. If there is a difference of opinion, it would be interesting for us to know from where they arise.

If we want to recommend some sort of machinery for Parliament, it does not mean we are trying to scrutinize the job you are doing. We really want to know where the political decisions are, and to question and input those processes. This is why it is difficult to determine where they are. Are you saying that is as difficult for you sometimes?

Mr. Moyer: They certainly vary from case to case. My committee acts as a place where people may exchange information, but it is not information exchange between people who have the real substantive responsibility for a specific issue. These are provincial coordinators meeting with federal officials. It is more likely to be directly from the responsible negotiating party at the federal level to whatever ministry is responsible within the province that you get the direct kind of contact you are talking about.

Mr. Holmes: In terms of the process, once we get beyond the level of study by officials, and there is a certain comfort level and the necessary political approval is obtained at the federal level, the process normally is for the Minister of Foreign Affairs to write to provincial counterparts. This is usually done in the context of Intergovernmental Affairs, the network that exists, seeking approval for either signature or ratification.

As an illustrative example, we can use the Convention on the Rights of the Child. There was an extensive degree of consultation during the negotiations and then, after the adoption by the United Nations, there were further consultations between the continuing committee and this special subcommittee and among different federal and provincial ministries. That was followed up by letters from the Minister of Foreign Affairs to provincial counterparts seeking approval or support for Canadian signature and ratification.

The Chairman: You have made my point by using that example. As you recall, the Covenant on the Rights of Children was a long process. I thought that the process worked well internally and interdepartmentally, and well between the provincial and federal bureaucracies, but when it came down to signing there were a number of provinces that said they had not been involved nor had they been consulted. There was an extensive exercise of reminding them of the process. Our difficulty is to find the political points of intervention.

Senator Milne: My question, Mr. Moyer, is to try to find out what sort of feedback comes through your committee. If the committee is an information sharing and coordinating body, does it ever evaluate the involvement of the provinces on this issue and then give feedback to the federal minister? Is there any kind of reporting done?

Mr. Moyer: The committee is the forum in which we talk about the reports that come in, but the reports come in directly from each jurisdiction. The policy in Canada is to include those reports as they come in from each jurisdiction. They are not massaged and not discussed in a debating style. We have a round table session at each of the committee meetings, wherein people can exchange information on new approaches that they may be undertaking, or new initiatives that they put in place, but that is not a comprehensive reporting discussion. A kind of sharing of new ideas takes place. We do not sit down and have an evaluative discussion of who has and who has not done things in response to comments that may have come from earlier reports or requirements under the treaty.

Senator Milne: More important, I take it you do not discuss why they have or have not done things?

Mr. Moyer: That is not something that occurs in my committee.

Ms Weiser: I wish to add a couple of other points. You were asking about what sort of information is exchanged. There are different sorts of information exchanged at the continuing committee, and then there are some subgroups that are formed for specific topics. Generally, we typically receive information from foreign affairs on what is taking place at the UN that might impact on domestic laws or domestic policies. That is a two-way street. Negotiators at the UN also understand some constraints that Canada may have, and domestic officials are also aware of standards that are evolving or being discussed at the UN level.

General discussions on domestic jurisprudence that raise international conventions or issues also take place. We look at the state of play in the courts between domestic and international norms. We do a review of the individual complaints that are filed before international bodies, so that everyone is aware of the type of issues being raised before international bodies and the sorts of pronouncements being made by international bodies. All of this may affect the decisions on the type of lawmaking and the type of programs in which every jurisdiction engages. We share that information.

Getting down to specifics, I would like to use the optional protocol to the Convention on the Rights of the Child as an example. That is where we form a subgroup to look at things more specifically. That optional protocol looks at a prohibition on the sale of children. It largely engages the Criminal Code, but it also affects adoption. Our subgroup meets with all the jurisdictions and we look at everyone's adoption legislation. Where there are questions, we will look at the international interpretation. We will look at the interpretation of the domestic law and, as a group, try to work out whether or not there are problems. That is more than just giving information. There is an actual dialogue that goes on so that we can do together, both separately and together, an assessment of where we are in relation to the international treaty.

Senator Milne: That is encouraging.

Senator Kinsella: Madam Chair, it was the Prime Minister who wrote to the first ministers requesting their views on whether or not Canada should ratify the international covenant. I am curious to find out whether there has been any kind of request going out to the ministers responsible regarding the American Convention on Human Rights.

How do we know what progress is being made on ratification? I mentioned that 10 years has elapsed with the American convention. In your committee there may have been a large amount of technical progress made. We do not know about that. We would like to find out.

As you reply to that, my own view is, that Canada ought to ratify the American convention. However, my strategic objective is that we would then become full partners in the machinery of the OAS for the promotion and protection of human rights, which we cannot be by not having ratified that convention. I do not know to what extent you can tell us what progress has been made. Who is holding out?

I would advise that you not answer that question.

Mr. Holmes: I can only answer briefly on that point. First, to my knowledge, there has not been any communication from ministers or the Prime Minister to the provinces requesting the formal support for ratification. As my colleagues indicated, and I believe ministers have restated several times, including at the Windsor summit of the OAS general assembly, it is something that Canada is actively and seriously considering.

We can talk a bit about this, although I cannot go into great detail. Some of the problems that were highlighted by the witness's last week were the differences in how the convention is drafted compared to our own laws and practices. Those particular matters are still under active consideration.

Senator Beaudoin: I would like to discuss what is considered the core of our system. The fact is that we probably have the most delicate situation in constitutional law in that field, but we cannot avoid the fact that once a treaty is signed, it does not become the law of the land until it is implemented by legislation.

If it is in the field of human rights, since human rights are always partly provincial and partly federal, I understand that one sets aside the implementation and goes first to ratification, and then to negotiation. What are the chances of having implementation in a case like that? We have a dualistic system. We have to legislate to give effect to a treaty. It is not good enough to ratify and to negotiate. We have to go further.

How can we stay there and conclude that we are complying with our international obligation?

I remember the time when Frank Scott was discussing the question of implementation. He was in favour of modifying the decision that the Privy Council made in 1937 regarding implementation, but the court has not changed its mind. The Supreme Court has followed the Privy Council regarding implementation. It is still part of our implementation of treaties. It is legislative, while the conclusion of the treaty is executive.

How can you spend ten years discussing a treaty before it is implemented.

Ms Weiser: I am not sure that I understood the question properly so if I go off in the wrong direction you can stop me.

Prior to ratification, we do a very extensive review of Canadian laws to see whether they are in conformity with the treaty obligations and if they are not, as you said, we may amend legislation, adopt new legislation, or sometimes enter a reservation.

At the point of ratification there has been a very extensive review of the domestic law in relation to the international obligations.

The problem arises because our system is not self-executing. This means that after that point the law plays a very important role but it cannot play the whole role in ensuring continued implementation of treaty obligations.

Senator Beaudoin: Why is that? If a province is legislating, and another one follows, and another one after that, is it not better to remain at the ratification and negotiation stage?

I understand the complexities in the area of rights and freedoms. Still, we are not going to move on if we do not reach the phase of implementation by the legislative power.

Mr. Holmes: If I could correct perhaps a misunderstanding, there may be some exceptions but we do not ratify until all jurisdictions indicate they support ratification and are in compliance with the obligations contained therein. We do not have situations where we, the federal government, would move forward, ratify, and then commence negotiations with the provinces on what they may or may not have to do to change their legislation. We would await the results of provincial action or indication. We would wait to see that they were in compliance with the instrument before we moved to ratification. That is the process that has been developed and in place for a number of years.

Senator Beaudoin: Is that process successful?

Ms Weiser: For the most part, it is successful. We have had very good cooperation from the provinces and territories.

Senator Beaudoin: I will give you an example. Our Charter of Rights provides Canadians with greater equality than any other country in the world. This is because of the notwithstanding clause preceding section 28. Equality is at the core of our Constitution nobody in our country disagrees on that subject. Therefore, the impementing of a treaty should be relatively easy.

Mr. Holmes: Yes.

Senator Beaudoin: I have another little question. The territories have an autonomy that is very important. When we reach the stage of implementation, what do we do with the territories? They are not provinces. However, they are more than municipalities. What is the mechanism? Is it not correct that they follow the principle of the federal authority?

Ms Weiser: Effectively, they are treated the same as the provinces. There are representatives from the territorial governments who participate in the committee and they consult with their governments. They do a review of territorial laws. They are in the same situation as the provinces for the purposes of that committee.

Senator Beaudoin: They are in the same situation for the purposes of legislation implementation?

Ms Weiser: They are in the same situation for the purposes of legislation, for the purposes of reviewing their situation, their jurisdictions, laws, practices and programs.

Senator Poy: Ms Weiser, there are a number of questions that I wanted to ask. Senator Beaudoin has already asked many of them. However, I would like to discuss the steps that Canada goes through in signing international human rights treaties.

Do our representatives sign first or do they consult the provinces first? I would like to know the steps and how the process works.

Ms Weiser: An internal consultation takes place, and by "internal" I mean within the borders of Canada. As I said, through the vehicle of the continuing committee, the federal, provincial and territorial governments consult one another and come to conclusions on whether our laws and practices are in conformity and whether we need to make changes, et cetera. If there is consensus and if there is support from the executive in all jurisdictions, the Minister for Foreign Affairs sends out a letter to the Intergovernmental Affairs minister in each of the jurisdictions asking for their support for signature or accession, depending on the situation. I believe the Minister of Foreign Affairs would proceed to file a letter of ratification or whatever it is.

Mr. Holmes: Once we get support from the jurisdictions, I believe we write to all the provinces and to the leaders of territories. Once we get those indications of support, then a submission is made to council for an Order inCouncil for signature first and then ratification later. Sometimes it is done at the same time.

In most cases, as Senator Kinsella or Senator Beaudoin said, most human rights instruments do deal with areas of jurisdiction that are either shared or followed in provincial jurisdictions. That is the format in most instances. There can be rare cases where the matter falls exclusively under federal jurisdiction, and here I am thinking of the other optional protocol to the Children's Convention on Children in Armed Conflict, which is a matter of federal jurisdiction. Canada has signed and ratified that based on decisions at the federal level.

Senator Poy: Are you saying you have provincial and territorial agreement with the federal government before anything is signed internationally?

Mr. Holmes: Yes. I should say that the word that we use is "support," because it is important to remember that constitutionally it is the federal government that has jurisdiction for international affairs, including the negotiation of treaties.

I am reminded of one instance. When one jurisdiction was a little bit late in terms of getting in an indication of support, Canada did proceed with ratification prior to receiving that one last indication of support. That was during the drafting of the Convention on the Rights of the Child.

Senator Poy: Would that be the only one that was late?

Mr. Holmes: I would have to check. We have ratified scores of international human rights instruments. I would have to check each one to say whether we have had provincial support at the time of ratification in each case. It is generally the practice.

Senator Poy: Why would we then get into the situation where international treaties that have been signed and ratified by the federal government somehow may or may not apply to provincial law? I thought you said the provinces have already agreed before signature. We are really working backwards.

Mr. Holmes: Can you give us a specific example? I think I know what you are referring to. When we get the indications of support, we are relying on the provinces and territories that have instructed us or informed us that they are in compliance with the obligations in the instrument concerned.

Senator Poy: Might they change their minds afterwards?

Mr. Holmes: Presumably that would not happen.

Senator Poy: When you have ratification, then all the jurisdictions sign on to it. Am I correct? Or is it just an agreement?

Mr. Holmes: The provinces and territories do not act on the international scene as such.

Senator Poy: It just has to be an agreement?

Mr. Holmes: An indication of support.

Senator Poy: What happens when provincial governments change?

Mr. Holmes: You mean perhaps change their laws or policies?

Senator Poy: I mean when the political parties change. What happens then? Can another party come into power and decide it does not agree with the policies. Then what happens?

Mr. Holmes: I would only say the letters of support we get for Canadian action in the human rights field are indications from the province, not from political parties in the province.

Senator Poy: When there is a human rights violation case concerning Canada does it go to the UN first or is the case tried in Canada first? I am not familiar with that. Where do the complaints go?

Mr. Holmes: The complaint processes have to meet certain criteria before they can get to the international scene. A very relevant one is that domestic remedies must be exhausted. You have to exhaust whatever mechanisms or opportunities exist on the domestic scene, whether through the courts or the Human Rights Commissions or other bodies, before you can go to the international scene.

Senator Poy: Ms Weiser, you mentioned that what has been signed may not necessarily be enforceable in a domestic situation. How can that happen if it is already agreed upon before signing?

Ms Weiser: It is not necessarily enforceable in domestic courts. We have ratified the Convention on the Rights of the Child, for example. If someone felt that Canada was violating a particular article of that convention, they could not start an action in Canadian courts based on that particular article of the convention. They could try to find something in our Charter or some other piece of legislation and argue that the convention affects the interpretation of the domestic law or of our Charter and amounts to a violation, but they cannot start their court action based on the treaty alone.

Senator Poy: I wonder about the strength of these international agreements if they are not necessarily enforceable.

Ms Weiser: There are two points. In law, they are very persuasive, and they are very important factors. The other point is that they should be relevant not just before the courts, but in all parts of the machinery of government. They should be relevant in consideration of bills through the legislative process. They should be relevant in the development of laws or programs at the official's level as well.

The point I am trying to make is that the courts cannot do it all for us because that is not the kind of system we have or can have in Canada. It is a shared responsibility.

Senator Poy: Really, it has the force of persuasion more than a legal force?

Ms Weiser: Yes.

Senator Watt: I would like to concentrate on an area that you might or might not be familiar with. I will approach this subject from the Aboriginal perspective.

As you know, Aboriginal people, starting the late to mid-1970s, began to start having so-called modern-day treaty agreements with the Crown. The concept of that treaty that was signed with the Inuit from the Arctic; the Quebec Inuit; the old NWT Inuit who now call themselves Nunavut; the Quebec Nunavik; and the Inuit from Labrador, still needs to be fully completed. This is where I am coming from. I am not going to pretend to speak on behalf of other Aboriginal groups that call themselves the First Nations. We also call ourselves First Nations.

The treaties or agreements that have been constructed with the Crown already have constitutional recognition under section 35 of the British North America Act. These treaties are more than the simple agreements that are arrived at between the federal and provincial governments that can be changed depending on the availability of funds.

That is not the case for our treaties. Regardless of whether there are funds available or not, the agreement remains because the agreement is with the Crown and not necessarily with the current government.

Even with that protection, from time to time our treaties, even domestic treaties, get violated by various actions taken by certain different interest groups.

Can the witnesses help me to understand this? Do we have sufficient mechanisms, tools, machinery, in the government to deal with the complexities of these treaties when we already have difficulties dealing with them domestically? We already lack the ability to fully understand these treaties within Canada.

There is such a difference in lifestyle between the two groups. Sometimes people talk about discrimination, but I wonder whether discrimination is at work here or whether it is merely oversight or a lack of understanding. The two societies must live side by side under the same laws. Not all people are under the same category, nor should they be treated as being under the same category. How do we deal with that?

The Chairman: The witnesses can reply. In part it may be a political answer, but what instructions are you given in relation to these issues?

Mr. Holmes: The senator has raised an extremely important issue. My colleagues and I share some of the concerns he has raised, but it is not within our mandate to speak on some of the issues that Senator Watt has raised. We are talking about international human rights treaties and he is talking about the domestic implementation of the treaties that are being negotiated with the indigenous peoples of Canada.

Senator Watt: My question is not merely related to domestic problems. We already know our domestic problem. It is the lack of political willpower to implement certain changes. That is why we have a great deal of difficulties in that area.

In terms of elevating ourselves to the international level and to trying to have our concerns noted there, does any machinery exist in the government to deal with that? As far as I am concerned, we are the forgotten people. Do you see what I mean? That is the question. Where do we fit?

Mr. Holmes: There are negotiations underway in the United Nations for a draft declaration on indigenous people. The Canadian delegation plays an active role in the negotiation of that instrument. Some of the issues raised by the senator are on the table in discussions at that level. I think that is probably all I can say at this point. Perhaps the committee may wish to call other witnesses at some future point.

Ms Weiser: I was also going to mention that various Aboriginal groups have effectively used mechanisms available at the UN. For example, groups frequently provide their views on Canadian government compliance with Aboriginal entitlements or rights in the course of Canada's reports.

We are almost always questioned, in the presentation of our reports, on the Aboriginal situation in Canada. Frequently, recommendations are made in relation to Aboriginal issues.

The individual complaint mechanism can also be used. One of the better known cases, although it is a bit dated now, is Lovelace. That case concerned an old law whereby Indian women who married non-Indian men lost their status, but the reverse was not true. There have been other complaints that have gone to the UN regarding Aboriginal matters since then. There continue to be cases before these committees. I expect the Aboriginal groups will continue to be effective in using these mechanisms.

Senator Watt: I am aware that Aboriginal groups have been making some head way in individual cases. The problem is that no real mechanism exists within our Canadian government to support the initiatives that are going forward at the international level. That lack of a coordination mechanism should definitely be identified.

I look to the continuing committee on human rights. That is the organization that should coordinate the various efforts.

Let me give you several examples of international and constitutional violations of our right to life. This is not the fault of our government or of any particular committee. One day, Greenpeace decided to be active in resisting the destruction of wild stock, the same wild stock that is considered to be the livelihood of Aboriginal people, especially of the Inuit people in the Arctic. We have been heavily violated ever since Greenpeace started moving rapidly in the fishery area. We are prohibited from marketing our products, including by-products, to the United States under the Marine Mammal Protection Act. We have not been able to have our case heard in court yet. How can we deal with that issue and change the act for the benefit of our people and for the benefit of our economy?

That is one example. Another example is the climate change issue. A treaty was signed by various leaders around the world to reduce pollution that concentrates in the south and in the north. This concentration is likely due to the magnetic field. We are being heavily loaded with pollution not only in our water but also in our food source. It is in the food chain.

That is another issue we need to address. Some people say it is not quite here yet because we are so far away from the source of the pollution. I am sorry to say it is here now and we must deal with the problem. I believe this issue is related to human rights.

Mr. Holmes: On the first example, I can certainly speak to my colleagues in the department. I know that this is an issue that has been of concern to them in the past and that certain actions were taken, but I am not in a position to give specific information. I would be happy to contact them and get back to the clerk of the committee with suggestions on who could be called to testify.

The second point is the same thing. I do not work in the environmental field. However, I do know that Canada recently signed, and I believe ratified, the convention on certain organic pollutants. I will get a real expert to come and talk to you about POPS.

[Translation]

Senator Ferretti Barth: Mr. Moyer, Canada has a lot of national and international human rights obligations. On this point, does Canada fulfill its international obligations at the expense of its national obligations?

Mr. Moyer: What we find in Canada is a system based on mutual support. Sometimes, the progress we make on the domestic level is facilitated by a climate of international negotiation. Much more frequently, because of our tradition and our history, Canada finds itself in a position to promote internationally the rights which have been accepted here for quite a long time.

We are still caught between those two trends. On one hand, we try to get the world to accept a certain level of human rights protection. On the other hand, we must admit that sometimes international pressures urge us to do much better than what we should already do according to our domestic legislation. But if we take cases like those my colleagues mentioned earlier, it is sometimes the Canadians who take us before international commissions to remind us that in reality our actions are not in full compliance with our commitments.

Senator Ferretti Barth: Canada has a reputation of prima donna as far as compliance with human rights is concerned. My first question is: is it accurate or exaggerated to say that Canada ranks first in this area? I am not sure.

My second question concerns NGOs. I am still not able to know how many NGOs there are in Canada. Could you tell me what kind of relationship they have with your committees? Is it necessary to have around us all those organizations which might hold us back in the implementation of certain standards?

Mr. Moyer: To answer your first question, we are very lucky to live in a country which considers human rights as fundamental rights in its law system. However, we still have a few things to learn. Each time we are involved in negotiations, we have an opportunity to widen the scope of those existing rights and to improve their level of protection. I think Canada deserves its reputation in general.

There are more NGOs today than yesterday. The same will be true tomorrow. It is an essential part in the human rights protection mechanism, because those organizations are led by people who are committed. They are interested and they ask questions. They hold us back sometimes because they do not always agree with each other but it would amount to wondering if democracy holds us back. Yes, it takes time to come to a consensus within a society. I am pleased that there are groups which limit themselves to certain aspects of human rights and that others cover the whole range of human rights.

The ties that those groups maintain with the government of Canada and other governments are much more with departments which are directly concerned by the interests they serve. If, as a NGO, my interests are the status of women, I will mainly have discussions with the National Office on the Status of Women. The NGOs are not very interested in coordinating instruments like my committee, although we have had a few requests from some NGOs. They have preferred up to now to go directly to the agencies and departments which are responsible for their area of interest.

Senator Ferretti Barth: How are the people who work for those organizations, who are doing wonderful things and whose contribution is useful for your programs paid and by which department? As a members of the Committee on National Finance, I am concerned to know where the funds supporting those organizations are coming from.

Mr. Moyer: Each NGO is financed in a unique way. Each makes its own fund-raising campaigns. They make them often. Some charge a fee to those who want to become members. They approach different departments of different governments to receive support for some specific elements of their work.

Some organizations, including the Canadian Ethnocultural Council for example, receive support from my department because for 30 years, we always have considered that a representation of ethnocultural groups in Canada deserved the support of the government of Canada.

Senator Ferretti Barth: The fund raising campaigns work well. When you wait for the government to do something positive for your area, you sometimes lose hope and then you decide to have a fund raising campaign. If the fund raising campaigns are working well, it is worth emphasizing to organizations of good will to continue their work. However, is it not true that the department also has to do its share?

Mr. Moyer: For Sure.

Senator Ferretti Barth: The relationship between that organization and your committee has positive results. Have you already experienced a situation where the intervention of a NGO with your department led to positive and real results to solve a problem? We see lots of publications on this issue and several people are talking about it. Are all those reports going to be shelved or are they going to be taken seriously?

Mr. Moyer: Each of our departments is in contact with the NGOs. They contribute to the debate at the level of the analysis made by officials but also at the political level. They often have ties where they talk directly to the minister. No new policy has been developed. Today there is no marked interest on the part of those NGOs. I know there is an annual or semi-annual meeting with most departments. The NGOs can make comments on the treaties and on some other elements. Some of my colleagues could tell you about their meetings. It is quite common.

[English]

The Chairman: We have talked about our international obligations and how they are incorporated or not incorporated into the laws and the fabric of Canada. Perhaps you can advise me whether your committee deals with the other half of that. Is there a mechanism or a process whereby we are able to examine our international signatures for ratification and question whether we have done our best to incorporate them into our national law? That concerns the other half of our discussions.

Mr. Moyer: I am probably not the best person to comment on that, Madam Chairman.

The Chairman: Your committee does not deal with that at all.

Mr. Moyer: No, my committee does not deal with the issue of reviewing international treaty obligations in the light of proposed jurisdictional laws. That would be done in each jurisdiction.

Senator Kinsella: Madam Chairman, Mr. Moyer should check the records for the minutes of the committee. In the early days of that committee, it was on the agenda that there be a report from all the jurisdictions on the methods or modalities that given jurisdictions were using.

At the federal level, as I recall, the mechanism was not as sophisticated as what we have for certification under the Bill of Rights and the Minister of Justice's certification under the Charter. However, it was the same principle and that certainly was the case of many of the other provinces.

Mr. Moyer: You have made a clear distinction. The committee talks about the processes they use, but they do not talk about the specific issues that might arise in a particular piece of legislation.

The Chairman: Is your answer that you look at processes but not at specific legislation. Is that correct?

Mr. Moyer: That is what the committee would do. There have not been recent discussions of that, because it was probably something largely resolved earlier in the history of the committee's life.

The Chairman: Is there not an ongoing evaluation?

Mr. Moyer: No, not that I am aware of.

Senator Kinsella: I have a question for Mr. Moyer. In the review of the mandate of the continuing committee, and in reference to section 35 of the Canada Act, I wonder whether a look might not be taken at how those self-governing First Nations ought not be represented on the continuing committee.

Mr. Moyer: I certainly do not have an answer for you immediately. I will return to seek advice on whether or not that issue has been raised before today.

Senator Beaudoin: Is there a mechanism in your committee to distinguish the rights issue of treaties and any other treaties that are signed by Canada in the international field? People do not always distinguish the treaty rights under section 35, and the treaty rights under treaties generally. Is a section in your division working on that.

Mr. Moyer: No, sir. Perhaps there should be, but there is not a consideration of the section 35 treaty rights of indigenous peoples in Canada as part of my committee. That would be taken into account by specific departments and jurisdictions as they develop legislation, or by justice and foreign affairs as we negotiate international agreements.

Senator Watt: It is important for your organization to take this matter seriously. It is likely that there will be conflicts between the two. Even though we have an agreement with the Crown there is a chance that that agreement could conflict with the convention that deals with our rights of protection in our treaties.

Senator Milne: Protection that is Constitutionally guaranteed.

Mr. Moyer: I am not sure that this has ever been taken to the courts. In any of the cases that they looked at, did they compare section 35 treaty rights to say international treaty rights or obligations?

Senator Watt: If that is ever dealt with, that probably would eliminate a great deal of the uncertainty that we are living through, not only for Aboriginal peoples, but also for those who run the system.

The Chairman: Senator Watt, Ms Weiser wishes to answer your question when we begin the second round.

One of our committee members was unavoidably detained in Toronto and thus unable to attend today. I hope we have addressed her questions as well. If not, we may, as a committee, put some questions to you over the summer. Thank you for coming today and for sharing your perspective and the issues that you deal with.

I will ask Ms Weiser to answer Senator Watt.

Ms Weiser: I wanted to make a few comments in relation to the section 35 question.

First, section 35 in itself is still in a state of evolution. We know some of the things that are included within section 35 but not everything. Section 35 does cover a wide range of activity. It covers fishing and hunting. It may include entitlement to land. It may include self-government questions.

If we look at governmental law that implements or respects the section 35 right, we must also look at that through the lens of our international obligations. Section 35 is considered, but it will be considered through the department responsible for the subject area that corresponds to the section 35 right.

The last point I want to make is that modern treaties where bands have lawmaking authority poses a new challenge in regard to international obligations. That is an area that we are still looking at.

The Chairman: Ms Weiser, you are the representative from the Department of Justice. You might help this committee. Is there anyone in your department that looks at national laws and checks to see if they comply with the international human rights instruments? Is there such a section, and is there such a person? Would you be prepared to look into it if you do not have the answer now and provide the clerk with the answer? I think that is the other half of what we need to have before us.

Ms Weiser: Those sorts of questions do frequently come to the Human Rights Law Section, but our international human rights treaty obligations in the development of new legislation are not considered as routinely as is the Charter. I think that simply reflects, for lack of a better word, a culture.

We have, in the last 20 years, come to think of legislation policies in regard to the Charter. We are doing that more and more in regard to our human rights treaty obligations, but it is not as developed as is a review of our domestic Constitution in regard to the development of new bills.

The Chairman: So there is no systematic process in place?

Ms Weiser: It is not systematic in the way the Charter is. I should have probably made that point clear. When we are ratifying a treaty, we do an exhaustive review of domestic law and the treaty. We always have Charter considerations in the back of our minds. You can see the development towards realizing the impact of international treaties as well, but it is not as embedded as is the Charter.

Mr. Holmes: One of the mandates of the legal bureau of the Department of Foreign Affairs and International Trade is to provide comments and advice on Canada's international obligations. When we become aware of pending or planned domestic legislation, we can offer comments on how the proposed legislation might have an impact on Canada's international obligations. However, as my colleague said, it is not systematic. We are not given every proposed piece of legislation. It is only in the course of normal consultations at the interdepartmental level that it might come to our attention.

Senator Milne: Ms Dion, you finished your presentation by saying that we take our UN responsibilities very seriously and that we attempt to respond to critiques on our reports in a timely fashion. My question comes back to that "timely fashion."

I am assuming that we have not been getting those reports in a timely fashion because of the mountains that Ms Weiser mentioned. Is there a specific reason why our reports have been late, and what is being done to speed it up?

Ms Dion: The reporting process for federal states such as Canada generally takes a bit longer because each jurisdiction that has obligations under the convention has to prepare reports. For example, when we are compiling the reports, and I believe Mr. Moyer listed the ones that we are currently working on, each province and territory submits its own report on its performance under each article. Then they are all compiled at the Department of Canadian Heritage. This becomes the Canadian report. As you can imagine, it is a fairly resource-intensive process, and it is frequently a struggle, particularly for the smaller jurisdictions. It is a slow process.

The UN human rights system itself is three to five years behind in considering government reports. We do our best to submit our reports in a timely fashion. Once they are submitted it generally takes the committee from one year to two years before the committee actually considers the report.

It is not an ideal system. We spend a lot of time at the UN advocating that more resources be given to the human rights committees in so that they are able to do their work more efficiently and expeditiously. It also means when we do appear, the committee is operating on very old information. When we appear before the committee a lot of our effort goes towards updating the committee on what action we have taken in since the report was submitted.

It is a bit of a rolling process, to ensure that what we are giving the committee is the most up-to-date information possible.

Senator Milne: How does Canada register a reservation on these reports? I am thinking particularly of the Rights of the Child and some of our First Nations communities where the form of adoption is quite different than it elsewhere. In that case, perhaps Canada cannot comply with the requirements.

Ms Dion: I can explain how we deal with it in each report and then I will turn to my legal colleagues to explain the actual technical act of making a reservation. In the report we simply make a reference to the fact that we have entered a formal legal reservation on this article, and I refer the committee back to our legal reservation.

Mr. Holmes: Reservations and/or statements of understanding must be submitted at the same time as ratification or accession. The reservations, two of which we made to the Convention on the Rights of the Child, were made at the time that we ratified in 1991. That includes the reservation my colleague mentioned in her introductory comments, which protects the system we have in Canada where the concept of customary adoption is recognized. We are not, in legal terms, in violation of the Convention on the Rights of the Child because we entered that reservation.

Senator Beaudoin: If I understand your reply, Mr. Holmes, no treaty is ratified unless it is supported first. I think it is clear-cut what you have said.

Is there any treaty that is ratified and not implemented by legislation, and if so, why? Is that because our laws comply entirely with the treaty, in which case it is perhaps not useful or not necessary, or is there any other case or any other reason?

Mr. Holmes: The best example is the one many of us have alluded to already, which is the Convention on the Rights of the Child. There were no legislative changes made at the federal level.

Senator Beaudoin: Were there any changes at the provincial level?

Mr. Holmes: I do not believe so, no.

Senator Beaudoin: Was there no implementation?

Mr. Holmes: The three areas where we found there might have been variance between our policies, our laws and our practices, and the obligations in the convention, were the three areas where we entered two reservations and one statement of understanding, which then brought us into compliance. I have explained one of those reservations. The other one relates to separation of youth and adults in detention facilities. We were essentially balancing what we believed were conflicting obligations in the convention in that we had a practice that was widely recognized among Aboriginal communities. There is a provision in the Convention on the Rights of the Child recognizing the importance of practices among indigenous peoples, and yet the practice we have in Canada was at variance with another provision of the convention that says all adoptions must be recognized by an appropriate authority. We looked at the two conflicting obligations, and decided that a reservation would protect the system we have in Canada.

Senator Beaudoin: Was it determined that this is an implementation that is adequate?

Mr. Holmes: Yes, that was the conclusion.

Senator Beaudoin: Does it respond to the criteria of the international obligations?

Mr. Holmes: Yes.

Senator Watt: With respect to the intellectual property of Aboriginal people, this has never been done. There has never been any type of protection or copyright introduced by any government for that matter, whether territorial, provincial or federal. Does this fall under your responsibility?

Mr. Holmes: I am aware that this issue has come up on the international scene. None of us are experts in this issue and how it has been discussed or where it has been discussed. I can undertake to get back to colleagues in our department and then convey to you who might be best placed to talk about that issue.

The Chairman: I wish to discuss the government taking the position that by ratification they do not need to do anything more by way of implementation because they already meet the standards of that covenant. I understand we do not have any implementing legislation and I will leave the provinces aside. If that is challenged, how is it challenged, and then what is the government's position? Has there ever been a challenge?

Mr. Holmes: Challenges could take place in the context of those instruments for which there is an individual complaint mechanism, for example, under the Human Rights Committee. The approach that we decided to take, either with the specific legislation, or if we decide no legislation is needed, could be challenged in that context although, the views of the Human Rights Committee under those complaint mechanisms are persuasive from an international point of view. However, they are not binding on Canada from an international point of view. They are important views. However, they are merely views.

In the context of instruments and no complaint mechanisms, we can have comments by the committee when we present our reports. Occasionally we get comments from the committees and the Human Rights Committee treaty bodies, commenting on Canada's performance either in the context of its specific legal obligations or on the policies that we take with respect to implementing the obligations.

The Chairman: Mr. Rishworth, you have been patient and hopefully you have benefited from this exchange. Is there anything you wish to contribute?

Mr. Paul Rishworth, University of Auckland: I might assist if I made a few quick comments about things that I feel relate more to the discussion you have been having. I can provide information about New Zealand later.

The first point is the number of treaties and parts of treaties that require governments not to legislate. Therefore, it is self-evident that there would be no legislation required before you ratified that type of treaty, but it does mean that the options of future parliaments are limited. A classic example would be the second optional protocol to the International Covenant on Civil and Political Rights, which is concerned with not adopting the death penalty. Those types of treaties will have implications for what we in New Zealand at least call the "democratic deficit." If it will limit what future parliaments do then some of their members say they ought to be consulted about the making of those treaties.

The second point, which is a variation of the first, is that sometimes human rights arise in relation to treaties that are not about human rights but which have a human rights dimension. Certainly for us in New Zealand most recently that has been trade treaties where the same concern is registered, that if the executive is to ratify a trade treaty then, that will limit the options of future parliaments, particularly in the areas of protecting the rights of indigenous people. I think that also has produced the call for some sort of reform that gives parliaments a greater role in the making of the treaties, or at least some consultation in a formal way.

The Chairman: Thank you, that has been helpful.

I would like to thank all of the witnesses. I will put a reservation on the floor. You have informed us and given us a great deal of information about the process. You have given us your indications of Canada's activity in the international human rights field. I thank you for your expertise and the time you have taken.

My reservation is we may need it again in the future. I look forward to continuing the dialogue. Hopefully our system can be improved. I thank you for being available on short notice.

Professor Norman is from the University of Saskatchewan and I welcome you here.

Professor Ken Norman, University of Saskatchewan: I am pleased to appear before this committee as it examines issues that interest me a great deal, such as the interface and relationship between international human rights law and Canadian domestic law. The senators have before them my recent article on this subject. Honourable Senators also have a copy of the Web site from which I drew the topic of my article, Taking Human Rights Lightly: The Canadian Approach, as well as a recent article in the Globe and Mail by Professor Bayefsky, concerning one of the cases I wrote about and wish to speak about.

I would like to address two issues. One is the Waldman case, for which Professor Bayefsky served as counsel. That case provides this committee with food for thought in respect to the gap between Canada's rhetoric and its practices under the International Covenant on Civil and Political Rights. ICCPR, was ratified 25 years ago.

The second issue is the Baker case and its challenge to Parliament to reform Canada's obligations under the Convention on the Rights of the Child. This case illustrates the gap that exists in our commitment to the convention that we ratified 10 years ago.

In page 293 of my article I begin with a reference to a The Globe and Mail article where, in the aftermath of the ICCPR Human Rights Committee's support of the Waldman claim concerning the right to funded religious education in Ontario for Jewish children, Ottawa was quoted as saying that it was "not our problem." The aftermath of that is that Canada has received further criticism. I have underlined the article in The Globe and Mail of last May 18, where as Professor Bayefsky states that Canada has been chastised by the UN Development Program and called an "abuser." Even though we have the top spot in the Human Development Index ranking we do "not disprove religious discrimination in access to public education."

It is unfortunate that the decision that the Privy Council made in 1937 continues to rule the day. It continues to produce a result that allows the federal government to say it is "not our problem." The Human Rights Committee says that Canada is discriminating and, that there is inequality in terms of providing state sponsorship for those who wish their children to be educated within their own religious values.

As senators will know, the Labour Convention case saw human rights as a purely domestic matter and purely within the power of the provinces. As I conclude in my article, and want to conclude today, human rights are not only domestic matters. In the aftermath of the Pinochet decision it is especially important that governments do not allow this gap to widen.

Just eight months before the Waldman decision, the Honourable Hedy Frye sat before the ICCPR Human Rights Committee and pledged that Canada would move forward on ensuring that Canadian legal and political orders are, in future, institutionally better designed to take Covenant rights seriously. My hope is that this committee will be a part of that process. I hope that the committee will come up with some better linkage so that Ottawa will no longer look as indifferent as The Globe and Mail piece shows it to be.

The Australian High Court took the opposite view a year before the Labour Convention case. In Australia, when the Commonwealth Government ratifies a treaty, if a state is out of line with that treaty the Commonwealth Government can simply legislate to ensure that the Commonwealth is not embarrassed internationally, even though it is legislating in an area of states' rights.

I will now briefly turn to the Convention on the Rights of the Child. The Supreme Court is starting to move in the right direction in giving interpretive weight to treaty commitments under the Convention on the Rights of the Child. However, the truth is that, in terms of legal implementation and effect, and the position of the Government of Canada, the law still sits at about where it was when the Federal Court looked at the Baker case. I refer here to page 304 of my article. Justice Strayer in the Federal Court in Baker makes the point that the Parliament of Canada did one thing only in acknowledging Canada's ratification of the Convention on the Rights of the Child and that is two years later it statutorily proclaimed a day to honour it. But for Mr. Justice Strayer this is neither here nor there because the Child Day Act does not purport to implement the Convention on the Rights of the Child. So international human rights norms are irrelevant and the Minister of Immigration's exercise of discretion in the Baker case to take account of the interests of the children based on humanitarian and compassionate grounds must, according to Justice Strayer, be regarded as "virtually unfettered." That is the orthodox position, but for a little bit of interpretive shift by our Supreme Court in Baker that remains the position to this day.

I say in my article that we can do better. "Not our problem," is an inappropriate response to the Waldman decision. At the end of my article I refer to the Pinochet decision. It is a bit like the point that Amnesty International made the day that Pinochet decision came down. The final decision from the House of Lords said that Mr. Pinochet was not answerable to the crimes of torture and against humanity that he was charged with, until the day after the UK Parliament passed the Torture Act. Here is Amnesty International's statement:

The crimes Pinochet is accused of were crimes under international law long before they were committed in Chile. On this basis, Amnesty International is urging the UK government to reform any provision in UK legislation which could be interpreted as a bar to the obligation under international law to try any person suspected of crimes against humanity, acts of torture and other crimes under international law.

If Canada wishes to do what it says it will do, then we must reform our treaty-making procedures with regards to international human rights instruments. Human rights laws are not just ordinary domestic laws, as the Privy Council thought they were in 1937.

The Australian Senate's Legal and Constitutional Affairs Committee, and a very thorough study in 1995 of the democratic deficit, and of the treaty-making procedures in Australia, makes this point in Chapter 8:

As the High Court recognized in the Koowarta case, for example, racial discrimination is now a matter of interna tional concern, rather than just being a purely internal matter. This is a development that confronts not only Australia, but also the rest of the world.

There is work to be done and I welcome the opportunity to speak to this committee as to what the agenda should be. I am happy to answer any questions.

Senator Kinsella: Professor Norman, would you agree with me that there has been a fair amount of slippage in the domestic prosecution of international human rights standards from the time in the late 1970s and early 1980s? During that time we ratified two international covenants and modes and mechanisms and modalities were identified with a fair degree of creativity.

We did ratify these two major covenants and, indeed, in the early days, the Lovelace case had such an effect that Parliament adopted Bill C-31 to bring Canada into compliance. You mentioned the more recent Waldman case, which happened to fall under the education portion of provincial jurisdiction. In both cases, it seems to me, and Professor Humphrey used to teach us this, that the ultimate force of human rights norms, at least internationally, is world public opinion.

What advice can you give to this new Standing Senate Committee on Human Rights that would assist us in becoming a body that could amass and harness public opinion in Canada? We are not hesitant to examine what occurs in the courts as an institution for the protection and promotion of human rights. The honourable senators on this committee will want to ensure that we use the institution of the legislative branch as well. If you could provide us with guidance in that respect, we would be grateful. In that way, the excitement that we had in the late 1970s and early 1980s could be recaptured.

Dr. Norman: I take your point. There was a great deal that happened around that time, especially the ratification of the ICCPR. Less happened in terms of implementation, and much less happened around the simultaneous ratification of the other great covenant on social, economic and cultural rights. There is work to do in that area. In 1993 Canada received criticism from the committee under that treaty, and it has happened again in the most recent round. It will continue. That is an issue for Canada.

Regarding institutions, part of the argument in my article is for something akin to what happened in Australia: there should be a kind of parliamentary monitoring committee of the House and Senate to examine this very question that you have put forth so well.

How do we, in our debates in Canada, continue to talk about these moral commitments that mean so much internationally? I particularly chose to flag this one sentence out of our human rights policy in foreign affairs because it so starkly states:

Canada does not expect other governments to respect standards which it does not apply to itself.

If we say that, it really means that institutionally Parliament needs a way to be given notice before ratification. In Australia, for example, there is a 15-day tabling requirement.

I would surely support that, as well as the idea of a standing joint committee, or at least a committee of the House or the Senate that would pay attention to the relevant questions. The Baker case is a good example. I heard, from the previous witnesses, that Canada was fully compliant with the Convention on the Rights of the Child, save for three areas where we made reservations. In that case, there is nothing to worry about. I would argue with that conclusion; there is something to worry about.

The Baker case involved a woman who has lived most of her adult life in Canada, although she is not a Canadian. She has borne a number of children in Canada and worked as a domestic; her children are Canadians. She is facing deportation because she has fallen desperately ill with schizophrenia. Her children want a voice in the process.

The immigration department took the position that the children had no say in the proceedings because they were not a relevant part of the discussion. That position was upheld all the way up to the Supreme Court, which declared that there was nothing by way of implementing legislation that could give those children the right to say a word about their interests.

In my view, Madam Justice L'Heureux-Dubé of the Supreme Court said it right:

It flies in the face of the norm established, the moral force of that norm in the Convention on the Rights of the Child.

At least our Supreme Court moved enough to say that immigration officials ought to have listened to the children. That was a very small move.

I would like to see something other than the occasional court case in terms of parliamentary institutions to address these questions.

Senator Kinsella: Pofessor Norman, would you explicate for the committee the distinction in implementation method under the International Covenant on Civil and Political Rights that deals with the rights that some of us would call self-executory, that is, reporting, adjudication by the committee and then doing something about it. Would you also explicate the method of implementation of the rights that are contained in the International Covenant on Economic, Social and Cultural Rights, which is more of a social audit mechanism, and, in particular, the role of Parliament in both of those very different cases. The role of Parliament in the latter case, in my judgment, being so much more important and critical as these rights are progressively enhanced or enriched by programs.

Dr. Norman: Thank you, senator. The issue of economic rights, in particular, and social and cultural rights is captured by the phrase "progressive realization." That is a political matter. It is especially important that our institutions of democracy, other than the courts, address that question.

There is no optional protocol right now under the economic, social and cultural rights covenant, so individuals cannot file complaints against Canada as Lovelace did in the ICCPR and as Waldman did recently. All the more reason, it seems to me, why there ought to be a process, by way of parliamentary audit, to supplement and inform what the officials backing the minister will say when they stand before that committee. That committee meets every five years in Geneva.

A formal consultative process in advance, with input from the Senate and the House, would be a big step forward. To my knowledge, that does not occur.

Senator Beaudoin: I understand that we do not legislate enough in the field of implementation of treaties. It is one thing to say that we have ratified a treaty and that our laws comply with the principles of the treaty. This may be good enough, as we were informed a few minutes ago. However, it is not always enough.

We should be more involved in legislation, especially in Canada where we have a federal system. As you know, we have two systems of law to begin with, and we have many provinces. When legislation includes the area of family law and children, it could be risky to not have adequate legislation to answer all the questions that we should have.

I would agree with you. It is not very often that I say we do not legislate enough; usually, it is the contrary.

In the implementation of treaties, in some fields, we are not going far enough, probably because it can be much more difficult than in other fields. That is especially true of human rights and freedoms, because everyone is involved in those areas. Every province and Ottawa are involved. Is that the message that you give us?

Dr. Norman: I do not know how complex this is, senator. I agree with the idea that we could at least cite and refer to the international commitments once we have ratified and then put something forward. We tend to be doing this now in a preambulatory statement, but as a matter of practice, if we could incorporate the international standard, that would in effect remove the orthodox transformation problem that our courts now face. In Baker, the Supreme Court moved a little bit by using ambiguity. The Immigration Act uses the term "compassionate and humanitarian grounds," and there is room in that phrase to read into it, the norms in the Convention on the Rights of the Child. The majority of the court was very clear in saying that this convention is not law in Canada. We cannot directly take anything from this convention and treat it as law. If we had incorporated it by direct reference in an act of Parliament instead of just passing the Child Day Act, 1993, we would at least have the welcome mat out for the Supreme Court to pay attention to the moral force of those norms, and refer directly to the convention. We could do that without causing much trouble by way of a great deal more legislation.

Senator Beaudoin: It is not only a question of timidity. It is worse than that. It is a failure to implement our international obligations by legislation.

Dr. Norman: In my view, it is. It is more than an embarrassment. I would take your word. I think it is a failure.

[Translation]

Senator Ferretti Barth: I read your document carefully. On page 306, you conclude that:

[English]

We can do better.

[Translation]

And you also say:

[English]

Human rights are not just ordinary law.

My English is like Sophia Loren's. I am Italian.

These have been recognized repeatedly by our Supreme Court with regard to the human rights code.

I would like to tell you another thing. So international human rights is relevant and the Minister of Immigration's exercise of discretion based on humanitarian and compassionate grounds must be regarded as being unfair.

[Translation]

I mention this to come to a case that we experienced recently. It is the case of a Polish family who made an application for Canadian citizenship on compassionate and humanitarian grounds and which was deported since then. The children who were born here stayed in Canada , but the father has been deported, I think, to Poland. I deplore the fact that the department of Immigration did not take into account this application on humanitarian grounds.

The children have a right to live with their parents. We do not have the right to separate them. Could you explain whether the citizenship application the parents have worded so as to be recognized as an application on humanitarian grounds could be accepted?

[English]

Dr. Norman: Thank you for the question. To the extent that the interests of the children are involved, the Supreme Court's decision in Baker gives new meaning to that phrase, "humanitarian and compassionate grounds," and instructs the officials in immigration to attend to issues such as the one the senator has mentioned of family reunification.

Beyond that, I do not think there is anything new that has been added, in terms of any international norm, that would bear on this exercise of discretion on compassionate and humanitarian grounds.

Baker is quite a narrow decision. It is important because it brings the children's voice into the discussion, but it does nothing more than that.

[Translation]

Senator Ferretti Barth: We cannot do anything to solve this situation, as a Senate Committee, within all our projects. It is not the first nor the last such case. How can we do to preserve the interests of the children born in Canadian territory? We cannot separate children from their parents. I also wonder how we could avoid traumatism among those children. This is what I would really like to examine and see what can be done. Can you think of an approach to this problem?

[English]

Dr. Norman: Canada made a very good start in 1991 in ratifying the Convention on the Rights of the Child. That convention says something extraordinary and new, although our legislators have not been moved to implement it as yet, but it in effect acknowledges the autonomy and worth of the child. All of its language treats the child as a person and not as property. That can make an enormous difference, as it began to do in Baker. We look at particular issues such as the one in the courts right now; section 43 of our Criminal Code allows a person in the position of a parent or a teacher to use physical violence against a child that one would not be able to use against an adult.

In my view, that is a section that does not belong in our Criminal Code because it treats the child as less than a person, and it violates the norms of the Convention on the Rights of the Child. We will see what our Supreme Court thinks about that in the next year or so. However, that would be one example where I think parliamentarians could have a role in advancing the idea that we really did something important and new in 1991 and we need to do more to implement that. The child counts as a person in a way that the child did not before the convention was ratified by Canada.

Senator Milne: Professor Norman, you tell us that Canada has signed on to various conventions on human rights but does not apply them to itself. You have illustrated that particularly with this Bayefsky article in The Globe and Mail about Ontario's record on separate schools. You spoke of the way Australia has dealt with this problem.

Can you offer as a solution that is possible that would not involve constitutional change? Both of those methods that you have spoken of involve constitutional change.

Dr. Norman: There is some hope that the Supreme Court might fix this for us some day. Peter Hogg's Constitutional Law of Canada, fourth edition, refers to the Labour Convention case and criticizes it extensively.

He makes two kinds of arguments. In his fourth edition, chapter 11, starting at page 12, Hogg argues that the labour conventions case was wrongly decided, and he alludes to several dicta in the Supreme Court, which, over the years, have suggested that it was wrongly decided. It was decided by the Privy Council. That is the case with the famous dictum that says there are watertight compartments and the provincial power cannot be eroded by Canada.

I think Hogg is right that, quite apart from constitutional change, there is a possibility that the Supreme Court might one day decide it is an anachronism to continue to live with a reading of section 132 of our Constitution which treats us as if we were a British colony. That is really what the labour convention case did. It ties the federal government's hands when it goes abroad and makes promises it cannot deliver.

Politically, as a federation, and Hogg endorses this, we have some good things going on in terms of consultative processes with the provinces, but it still leaves this odd result that human rights laws are treated no differently than any other law. They are different, and one of my points is that in those heady days in the 1970s, after we implemented the ICCPR, Canada passed a number of human rights codes, and the Supreme Court read those codes as being more than just ordinary laws. Short of constitutional change, that is where some hope lies.

The only other thing I have to offer, and it is very important, is in my responses to Senators Kinsella and Beaudoin. Our parliamentary institutions can have a role in taking these norms and encouraging an understanding of them, not just amongst the people but within the institutions of Parliament. That would make an important difference. There would be at least a table where these things are being monitored instead of waiting every five years for them to be dealt with by a committee in New York or Geneva.

Senator Milne: I doubt that would carry much weight with the Province of Ontario right now.

Senator Poy: Professor Norman, I find your article very interesting reading. What do you think would be the main problem in overcoming or incorporating international standards into Canadian law, for example, Canada's ratification of the Convention on the Rights of the Child. Earlier witnesses implied, if I understood correctly, that we really do not need legislation. It is understood. It is accepted in this country.

In the Baker case that you mentioned, it did not work. How do you think we can overcome that? Does it mean legislation should be passed in Canada to cover the rights of the child?

Dr. Norman: The answer to that is yes. We need to say more and say it explicitly. I do not think the Convention on the Rights of the Child was a marginal shift that we had already embraced in our Canadian domestic legal system. The officials in Ottawa disagree with me and say it was only a marginal shift, and the only changes that Canada needed to note were those we wished to object to and state reservations about.

I applaud the Supreme Court in the Baker case for having some courage and for giving some effect to the norms of the covenant. The other example however, is section 43 of the Criminal Code, where it does seem that the idea that a child's physical integrity is more vulnerable than an adult's goes up against the grain of that great Convention on the Rights of the Child. So far, governments in this country do not agree with that, and the federal government is resisting the attack on section 43 in the courts. We will have to wait to see what the Supreme Court has to say about that. It would be a great help, if, when the Supreme Court faces questions like this, it could do more than simply wait and hope there might a little ambiguity in a piece of legislation that would allow it to read in a norm. It would be a great help if the Supreme Court could say the Convention on the Rights of the Child is a serious matter for legal argument in this court. Today, that is not true. That is why I read into the record the Federal Court's view that it leaves the discretion virtually unfettered.

That is the sad position we sit in today. We do not have a way, as lawyers, to bring those norms into a Canadian court and argue for them.

Senator Poy: Do I understand you to be suggesting that legislation should be introduced to cover the deficit?

Dr. Norman: A number of things could be done. The democratic deficit can be dealt with by some tabling in Parliament ahead of time, before ratification, to begin the debate politically about these norms.

Direct reference to international standards in the field of human rights could be made in our legislation, rather than have no mention of them and leaving it to the courts to decide whether they are of any weight. When we do that we run the risk that the courts might think the international standards are of no weight at all.

The Chairman: Would you agree that international law, the involvement of the non-government sector, and all of us in looking at human rights differently is a recent phenomenon?

We heard there was this excitement in 1979 and 1980, and I remember that. It takes a little while to digest. There now seems to be another movement by some parliamentarians, by the communities, by some governments, to bridge the gap between the national and the international. Therefore, it is not just legislation we need. There is a role for education and parliamentary input to encourage that movement to the next phase, to interface the national and the international law.

One of my suggestions would be that when we implement national laws, we have a checklist of international covenants to see if we comply. That does not mean we will get the legality, but we would probably get a more thoughtful and reasoned look at the way we implement our national strategies. Some of that has already started, but not in a systematic way.

Dr. Norman: This committee would be interested in the Australian Senate Legal and Constitutional References Committee. It has a sort of attention-getting title to its report of 1995. It is entitled "Trick or Treaty: Commonwealth Power to Make and Implement Treaties."

Part of that discussion involves your point about the need for some sort of checklist committee that they do call for, a kind of standing parliamentary involvement. This is chapter 14 of their committee report. They suggest that involvement, should take the form of a standing committee that would go through that process and, with the officials in front of it, try to ensure that international norms, as they are about to be ratified, are being applied against the existing legal order. They further suggest that discussions take place concerning where the deficit is, and what needs to be done about it. I think that is really good advice for Canada to pay attention to.

The Chairman: Thank you, Professor Norman. You have added to our knowledge. You have given us some suggestions on how we might support better initiatives towards human rights. Thank you for coming.

The committee adjourned.

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