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Proceedings of the Standing Senate Committee on
Human Rights

Issue 3 - Evidence, September 24, 2001

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OTTAWA, Monday, September 24, 2001

The Standing Senate Committee on Human Rights met this day at 4:09 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: Honourable senators, I call the meeting to order.

Our first witness today is the Honourable Warren Allmand, President of Rights & Democracy. He has a wealth of experience as a past member of Parliament and in many other capacities. His curriculum vitae has been circulated.

As you know, Mr. Allmand, this committee will examine the machinery of government and the Parliamentary role. We are not dealing with specific, individual cases. Rather, we are asking how we as a new committee can assist in the entire field of human rights and move the agenda forward through government, through Parliament and through international as well as national institutions. We have a lot on our plate. Perhaps you can give us some insights that focus on our oncoming work.

Welcome to the committee.

Hon. Warren Allmand, P.C., President, Rights & Democracy (International Centre for Human Rights and Democractic Development): Honourable senators, I start by congratulating the Senate on establishing this committee. The Senate can play an important role in this area because human rights often deal with minority rights. Sometimes, the elected bodies of Parliament are not as free to raise minority issues as the Senate. The Senate can speak freely, openly and frankly on many issues without any concern for electoral benefit. Therefore I congratulate the Senate. I hope your work will be fruitful.

I will say a few words about the work of our centre and then refer to a number of issues very briefly before taking your questions.

The International Centre for Human Rights and Democratic Development is a little over 11 years old. We changed the name about a year and a half ago to Rights & Democracy. The longer name remains the legal name, but we received a communications evaluation that said no one could remember our name. We took a leaf from the book of Development & Peace, for which the long name is Catholic Organization for Development & Peace, and became "Rights & Democracy."

We were established by the Parliament of Canada on the unanimous recommendation of the Committee on Foreign Affairs in the House of Commons more than 11 years ago. It was not an initiative of the government of the day, but it was picked up by Mr. Clark, who made sure the legislation was passed.

Our mandate is to defend and promote democracy and human rights around the world. We do that in many ways. Since it is such a broad mandate, our board of directors - we have here a former chair of our board, Senator Lois Wilson - decided we could not possibly defend and promote democracy and every human right that exists, so we had to focus. Our focus is currently on women's rights as human rights, indigenous people's rights, the impact of globalization on human rights, and democratic development.

Those are our four programs. We have two special operations. One is an urgent action capacity that is relatively new - less than two years old - by which we use a budget to intervene in any gross violation of human rights anywhere in the world. We have various means of doing that.

The other special operation is what we call "international human rights advocacy." We work at the UN Commission on Human Rights on a panoply of human rights. Through that operation, we are strong supporters of the International Criminal Court and we work on the ratification campaign for that court.

We also focus by limiting our work to advocacy and capacity-building. Because of the limitations of our resources, both human and financial, we cannot do everything. We fund organizations with grants, especially organizations in Latin America, Africa and Asia, so that they can eventually stand on their own feet and carry out their own advocacy.

When we work in other countries on an advocacy issue related to the programs I mentioned, or when we work with NGOs or civil society in those countries, we enter the country only in partnership or in cooperation. We would not involve ourselves in the Congo, Burma, Colombia or Haiti unless an NGO, church, trade union or professional association has suggested that we do so to help them address important matters. We always work with partners.

There is a sort of grey area, since we are an international centre for human rights and democratic development, where the question arises from time to time: What about horrible things that happen in Canada?

We adopted a policy with respect to the centre's involvement in Canadian human rights issues that more or less states - I have it here with me - that we would intervene if Canada had ratified a treaty but was ignoring its treaty obligations. We feel it is our obligation to remind government of their treaty obligations and call them to task if they do not live up to them. We do that because, otherwise, even though our mandate is principally international, we would not criticize or condemn a country in Latin America, Asia or Africa for not living up to their human rights obligations if we were saying nothing about Canada. We have done that from time to time.

We would also intervene if there were an international human rights treaty that Canada had not ratified. We would be part of the campaign to ask Canada to ratify because we feel that, without Canada, the international human rights system is weaker. It becomes stronger when more countries ratify treaties.

I mentioned both human rights and democracy. The democratic development program is one of our four programs. It is very broad. I have brought for the committee a copy of our annual report for last year. This year's report was finished in July, but we cannot make it public until it is tabled in Parliament and Parliament has been in adjournment until recently.

I have another document relating to our globalization program called "Protecting Human Rights in the Global Economy: Challenges for the World Trade Organization."

The other document is one that we took to Durban, South Africa. It is an appeal to governments with respect to racism against indigenous peoples. That was our main focus in Durban. The other little document we produced for the Quebec Summit and it dealt with the whole issue of human rights and globalization.

I want to refer now to the Canadian Human Rights Act. Even though this is a Canadian issue, we follow very closely the review group on the Canadian Human Rights Act. We wrote to Minister Anne McLellan saying that we thought parts of the report of the review group were good but several things were missing. In particular, economic, social and cultural rights were missing.

As you know, Canada has ratified the International Covenant on Economic, Social and Cultural Rights, but there is nothing in our charter with respect to these rights. There is nothing in any of the 10 provincial human rights acts dealing with economic, social and cultural rights, despite the fact we ratified that covenant in 1976. I was in the cabinet then and we ratified the two great covenants at the same time.

We had written to Ms McLellan about that and legislation was supposed to be tabled to amend the Human Rights Act. I believe that bill died when Parliament adjourned for the election, and we have seen nothing since then. The Senate committee might have something to say in that area.

I turn now to the American Convention on Human Rights. Where there exists a major convention on human rights that Canada has not ratified, we feel it is our duty as a Canadian human rights organization to press for its ratification. We have campaigned in that direction for three or four years. The only two major countries that have not ratified the American convention are the United States and Canada.

Our partners in Latin America very much want Canada to be a full player at the table. It was difficult when both Trinidad and Peru were threatening to withdraw from the inter-American system. I was in Guatemala at the time, at the annual assembly of the Organization of American States. I was campaigning to have Peru stay. A Peruvian came to ask me why I was doing that when my own country was not a member, insinuating that we should get ourselves in before we start lecturing them about not getting out. That is another issue to which I would ask you to pay attention.

The next item is the new Inter-American Democratic Charter, which came out of the Quebec Summit. Since we are involved in democratic development, we looked closely at the first draft that came out of the Quebec Summit, and we have been working ever since with the Government of Canada and the other partner governments in the Americas on strengthening that charter. It has been strengthened immeasurably. Just a week ago, on September 11, in Lima, Peru, the governments passed this democratic charter for the Americas, with Canada supporting that. Canada made a memorandum of understanding or a reservation on Article 1. Article 1 talks about the right to democracy. Canada was saying that rights belong to individuals and not to states. I believe that the Canadian delegation did a good job and I congratulate the Canadian government on that. We had good cooperation as an NGO on that issue.

The fact that I am mentioning the next item in fourth place does not mean it is fourth in importance. We wrote a letter last week to the Prime Minister with respect to the horrible events that took place in the United States, and I would be glad to make the letter available to the committee. In a nutshell, we said that such acts must be condemned in the strongest terms. No matter what your problem, nothing justifies that kind of terrorist attack on many innocent people. Secondly, we said that we should search out those who committed this terrible deed and bring them to justice, but we should not retaliate against more innocent people. These were innocent people who were killed in the United States, and we should not generalize and create more innocent victims, and certainly not condemn any one race, religion or ethnic group. The third thing we said was that you must respect our Charter, the international conventions and the UN charter, and that we should not do things in violation of international law while saying we are defending democracy. Let us respect democracy in doing what we have to do. Finally, we said that if we really want security, in addition to tightening our measures against terrorism, whether at airports or on airplanes or in seeking out and closing down terrorist cells, we must look at the basic causes of these kinds of things and address them. If you really want to solve a problem, you have to address your solution to the causes.

The next thing I wanted to mention is that Canada's actions, under the various conventions that it has ratified, must come up for review every so often. Since Canada ratified the International Covenant on Economic, Social and Cultural Rights on a five-year review basis, we will soon be up for review on the extent to which we did or did not fulfil our obligations under that international covenant. The last time that happened, many groups representing the homeless in Canada, and people who were suffering from the cutbacks in health care and education, complained directly to the committee. There was much discussion about and criticism of Canada. Canada is putting together its report to file with the committee and it has asked for assistance from NGOs - and I congratulate them for that - but the NGOs and other groups will be putting in their two cents worth, even though not directly to the Canadian government. However, you as a committee might want to say something about that report.

I also wanted to talk about the world conference against racism in Durban. I was there for both the NGO conference and the government conference. When I got back, I understood from the phone calls I received from the media that people thought the only or main subject discussed was the attack on Israel by certain Palestinians. Those discussions did take place, but when I was there, there were many other things going on. I spent most of my time in the commissions dealing with indigenous rights. There are 400 million indigenous people in the world. We decided to concentrate on that because we believe that racism against indigenous people is probably the major racist problem in Canada and in the Americas. I also spent quite a bit of time in the commission on law and the justice system, where they discussed racism in the justice system. There was nothing much publicized with respect to that issue.

In several interviews that I did, I pointed out that in the draft declaration and plan of action that was being discussed in Durban, out of 443 paragraphs, only seven dealt with the Israeli issue, and four were offensive. Since Canada and the Europeans stayed, they were able to knock out those offensive clauses on the last day. However, very few papers printed the clauses that replaced the offensive ones. I have been trying to get the final version. I have the draft declaration from the day before the last day, and most of it is the same, but those articles were changed, and from what I can see, they eliminated most of what was considered offensive.

I also wanted to talk about the Draft Declaration on the Rights of Indigenous People. It is mentioned in that short document that I passed around. For six years now, Canada and other countries have been going to Geneva each year to work on the draft declaration. The indigenous peoples are one of the few groups in the world who do not have an international instrument to speak of their rights. Children do, women do, migrant workers do, refugees do, et cetera, but indigenous people do not. In six years, the governments of the world have passed two articles. We have been at those meetings, and it is frustrating to listen to the speeches. I have been trying to encourage the Canadian government, and other governments, to give greater support to that draft declaration.

Another issue I wanted to bring to your attention is the amendments to the Export Development Corporation Act that were tabled by Mr. Pettigrew last week. This is important because, under the old law still in existence, loans were being given to companies without our knowing to what extent they were investing in countries that were abusers of human rights and the environment. The amendments that Mr. Pettigrew is tabling go a long way toward answering the complaints of the human rights and environmental groups, but I urge the Senate to give it your close attention and look at the reports that were done in the beginning. We have had cases of Canadian companies abroad, with the help of the Canadian government, carrying on activities that we would not approve of if we knew about them. The Export Development Corporation was not subject to the access to information laws of this country. It was exempted, and we were pressing for it to be subject to that law.

The final thing I wanted to mention is the campaign for the International Criminal Court. As you know, last year, Canada passed Bill C-19, which led to the ratification of that important treaty that will deal with war crimes, crimes against humanity and genocide. It is also important, although many Canadians do not know this, that C-19 gave Canada the universal jurisdiction to try war criminals and people who commit crimes against humanity in this country, even if the crime was committed in another country.

If it is contrary to an international convention that Canada has ratified, then according to that law we can try them here.

I have quickly gone through a number of items, and there may be others with which we should deal. I would be pleased to answer your questions.

The Chairman: Given the amount of work that your organization performs yearly, you did an admirable job of synthesizing it in the short time allotted.

[Translation]

Senator Beaudoin: Do you mean that your organization does not have the right to take the initiative in the area of rights and freedoms? Does one of your partners have to support you or suggest that this be done? The right to take the initiative is extremely important. Did I understand your presentation correctly on this point?

[English]

Mr. Allmand: According to the statute, we can take action under the mandate given to us. It states that we should attempt to cooperate with governments and civil society around the world. However, we have decided as a policy position to be sensitive. We are a basically a white, Christian organization from a northern country. Consequently, when we intervene in other countries' affairs and tell them that what they are doing is bad, we want to ensure that we are responding to the sentiments of the people of that country. We always rely on some of the information given to us by the people who work in the relevant country. Sometimes they are with Canadian NGOs or missionaries who have been working there for years. There could be others who provide us with information, but we would try to verify it first.

It would not be helpful to preach to other countries about what they are doing wrong in the area of the human rights unless we are solidly based. Even though only a small minority may be involved, there can still be grounds for the violation of an international human rights treaty.

Our statute spells out that we should try to cooperate with governments and groups around the world when we carry out our work, but there is no prohibition against us doing it.

Senator Beaudoin: My second question is about economic and social rights. I am slightly scandalized, if I heard the problem correctly. We have a Charter of Rights with which we comply externally and internally. However, those are mainly individual rights. We have entered into many treaties on economic and social rights. Do I understand correctly that we have never implemented, in our provincial or federal statutes, those economic and social rights?

Mr. Allmand: That is correct. As a matter of fact, in the Universal Declaration of Human Rights, 1948, articles 22 to 27 deal with items such as the right to basic education and health, and the right to protection during unemployment and so on. The committee on economic, social and cultural rights, to which I referred, is preparing the report on Canada, and it has defined what those rights mean. They have made general comments that define that as "according to your means." It does not mean that somebody from Haiti has the same rights to housing as somebody from Toronto, but rather within the means of the country.

We have a Canadian Human Rights Act and we have human rights acts in every province. None of them except Quebec makes reference to economic rights. Quebec has a few clauses, but it states that those clauses can be overridden by ordinary legislation, whereas all the other clauses take precedence in Quebec over every other piece of legislation.

There is one clause in the Canadian Constitution which is similar and which deals with, in a way, economic and social rights - however, it does not apply to individuals - and that is the clause in the 1982 Constitution on equalization.

In a way, we have accepted the principle that, in Canada, we will share the wealth with the provinces, rich and poor. If you look at the International Covenant on Economic, Social and Cultural Rights, you will see that we could have articles similar to those of other countries. As a matter of fact, the South African constitution and entrenched charter deal with civil and political rights, which we deal with fully, but they also deal with economic, social and cultural rights.

Senator Beaudoin: That is surprising.

Mr. Allmand: It is surprising that we have ratified. I should tell you that some groups in Canada, and we are one of them, have intervened recently in the Gosselin case from Quebec. That case dealt with a young woman, under 30, who is a single mother with two young children. A few years ago, the Quebec government passed a law stating that those under 30 would receive less welfare than those over 30 years.

That young woman was close to 30, but her welfare was cut. She lost in the Quebec Superior Court, but in the Court of Appeal, on a three-person bench, there was a split decision against her, two to one. Justice Michel Robert was the dissenting judge, and because of that, the Supreme Court agreed to hear the case.

Our organization, the provinces and many human rights groups have intervened for status. We are arguing that since Canada ratified the International Covenant on Economic, Social and Cultural Rights, it must mean something in law, and consequently, we are arguing what it should mean. There was a case a few years ago that opened the door a little to defining what it must mean within the country that ratifies a treaty. We are hoping to push that door open a little more in this case. We are not alone and not the sole intervener.

Senator Beaudoin: I will come back to that question later.

Senator Cochrane: Mr. Allmand, why has Canada not ratified the American convention? Does it contain specifics with which we disagree?

Mr. Allmand: The problem is article 4, which deals with the right to life. It has four subsections. The International Covenant on Civil and Political Rights deals with the right to life, as does the universal declaration. Three subsections in article 4 deal with the death penalty. We have no problem with that in Canada. The fourth subsection states that the right to life, generally, will start with conception.

Consequently, a number of women's groups in Canada have opposed the ratification. We have been working with women's groups here and in Latin America, trying to bring them together. The women in Latin America want Canada in. We have an opinion from Professor Rebecca Cook, of the University of Toronto, who is an outstanding law professor, feminist and human rights lawyer. She felt that Canada should ratify, and that it could easily deal with the problem of the Canadian women's groups through a memorandum of understanding, which would refer to the judgments of the Supreme Court. As for the rest of it, there should not be a problem.

The government said that there were nine problems. We have analyzed these closely, and the other problems are not serious. Thus, we have been working hard to get the provincial governments to agree, because Canada consults with provincial governments when it ratifies human rights treaties.

Some of the provinces have been difficult, and it has become more difficult since last year because of the Waldman case in Ontario.

The Ontario government, like other governments, is afraid that if we ratify any more human rights treaties, it may be stuck with the decision of a commission. Perhaps you are familiar with the Waldman case. Certain Jews in Toronto said that if the government funds Catholic and Protestant schools, it must also fund Jewish schools. The Government of Ontario has refused to deal with that.

A number of provinces in Canada do fund Jewish schools. It is not that big an issue. I do not know how many there are in Canada. I know that we have a number of such schools in Montreal. They get assistance from the Government of Quebec.

There has been a moving away from the spirit of the 1970s and 1980s when we ratified many human rights treaties. We agreed with what we thought were enduring principles.

We are making headway with the women's groups in Canada as they meet with the Latin American women's groups to discuss events in Mexico and Guatemala. They feel that they need Canadians onside.

The opinion of Rebecca Cook has had much influence, but we are now having problems with some of the provinces. I have written to Anne McLellan and have met with the deputy minister of Justice.

We are not alone in this. Amnesty International and many other international human rights groups want to see Canada as a full player.

Other human rights convention statutes protect Canada. It is in solidarity with our brothers and sisters in the Americas, and for foreign policy reasons, that we want Canada to ratify the American convention. With Canada at the table of the OAS and the inter-American system, they are able to combat attacks made on human rights in some other countries in an attempt to water down those conventions.

The International Covenant on Civil and Political Rights protects us in Canada. We have a charter. We must try to get Canadians to think more globally on these issues. That is the problem, senator.

Senator Cochrane: You mentioned that you spent a couple of weeks in South Africa. Were you present at the meeting at which Chief Coon Come spoke? If so, would you give us your comments?

Mr. Allmand: I was at all the meetings where Matthew Coon Come was present. There was nothing wrong with what he said there. I understood that he had said something before he left Canada.

He showed great leadership there. His comments were well balanced. I have copies of what he said. I cannot see anything in what he said in South Africa to rile people. Somebody told me that he made some sort of statement before he left. I do not know if that is what caused the problem. I felt that I was more critical of some things than Matthew Coon Come was.

By the way, he was on panels with the Nobel Prize winner from Guatemala. He was on panels with the leaders of the indigenous world from Australia, Scandinavia, Norway, Sweden, Russia and America. I have copies of his remarks. He said that there was racism in Canada. We cannot deny that.

Last summer, I saw native fishing boats being rammed in the Northumberland Straits. I saw people being beaten on the dock. I know of the case in Northern Saskatchewan where police left indigenous people in the cold. There are a number of indigenous people in prisons. Their birth rate and child mortality rate is high.

The former government of British Columbia settled its case with the Nisga'a, and the present government is threatening to have a referendum on that settlement. We know what happens to minority rights in a referendum. The majority wins.

We think that Chief Coon Come was referring to some serious problems in Canada. I do not see what was the cause for alarm in what he said there.

The Chairman: Things have not changed in Parliament since you were there. I am going to ask you to shorten your answers, in the pious hope that the questioners will also shorten their questions.

Mr. Allmand: They are good questions.

The Chairman: And good answers.

Senator Wilson: One thing that has never been resolved in Canadian policy is the trade-off between trade and human rights. I am interested in your comments about the Export Development Corporation.

I did not know that an amendment had been proposed. It is not covered by access to information, and that applies to a number of bills, such as the one on nuclear waste management, which is coming up. They put that in fairly often.

Can you give me any background on the purpose of that no access to information provision? I know that it applies to non-government entities.

Mr. Allmand: The argument was that if there were access to information, the company's competitive position would be undermined. The United States has a body similar to the Export Development Corporation. It is subject to their freedom of information act, and they do very well in international business.

Senator, I read the press release from Mr. Pettigrew in which he said he was tabling the proposed legislation. I have not had a chance to read it, but I urge the committee to look at it closely. It could be that they have closed that gap. Maybe now it will be open to our access to information laws.

Mr. Pettigrew noted in that press release that he had responded to many of the recommendations of Canadians with respect to this legislation.

Senator Wilson: If I wanted to study the American practice, for what would I ask? Could it get it from Rights & Democracy?

Mr. Allmand: Send me an e-mail and you will get it within a day.

Senator Wilson: What is your liaison with parliamentarians? Do MPs and senators make use of your research? What is your process for sharing some of your research?

Mr. Allmand: This is the first time that I have appeared before a Senate committee, but I have appeared on many occasions before the House committees. I appeared with respect to the study on the Export Development Corporation. I have appeared before the House committee many times. I organize private meetings with the opposition critics on foreign affairs from all the parties, and I meet not only with the minister, but also with the parliamentary secretaries when it is important to do so.

I have met with Mr. Graham, who is the chair of the House committee. We discussed subjects for study by that committee. All members receive our annual report and our principal documents. They may go onto the bookshelves before being looked at, but they are sent to them all.

Senator Wilson: What are the informal contacts?

Mr. Allmand: We invite them to participate in several of our round tables and discussions. Some visit our centre. The greatest number, on a percentage basis, of members using and visiting the centre are from the Bloc Québécois. I told the other parties that they would also be welcome.

It could be because we are in Montreal, but we have many government members from Montreal with whom we have very good relations, but who have not visited the centre and asked for information. Maybe it is because the Bloc is an opposition party. They call and ask for documents and information.

Senator Wilson: Maybe it is not well known among parliamentarians that you have research that might be useful.

Mr. Allmand: I tried to tell them that.

Senator Wilson: I am not blaming you. I am just making a statement.

Mr. Allmand: A year after I told them, they still say, "Oh, yeah?"

Senator Finestone: You have a prodigious memory and an incredible appetite for work. It is reflected in your work at Rights & Democracy.

I want to call upon that memory bank of yours. You were in government in 1980, 1981 and 1982. Can you recall at the time of the discussion of the Constitution, the issues of property rights and privacy rights? Can you tell me what happened to those two issues?

Mr. Allmand: On property rights, some provinces objected that it might interfere with their ability to control the environment. Governments played a bigger role at that time than they do today. They felt that by putting property rights in the Constitution, they might be hindered in their ability to act to protect people on things such as zoning, environment, et cetera.

Later, while Mr. Trudeau was still the Prime Minister, they changed that. Many countries have respected environmental and zoning issues and still have provisions to protect property that is subject to those things. I can recall that a number of years later they came out with a formulation that more or less had agreement. Maybe it was in the Charlottetown agreement. However, there was some agreement in Canada that we could put something in that would not be an obstacle for governments, but the reason for not doing so in 1980-1981 was the one I just gave.

Senator Finestone: Can you recall on the issue of privacy rights?

Mr. Allmand: I cannot. It could be that they were copying or were building on the International Covenant on Civil and Political Rights and the universal declaration. Those documents do not mention the right to privacy.

Senator Finestone: The universal declaration definitely mentions the right to privacy.

Mr. Allmand: I remember you and I were on a committee starting to study that just before I left Parliament.

Senator Finestone: That is right.

Mr. Allmand: Anyway, I cannot recall the arguments at the time, but I know that we later tried to deal with that. I know that today, the right to privacy is a very important subject. I just raised it recently in another context; I cannot remember what it is now. It has grown in prominence since that time because of the growth in technology that allows people to snoop. There are many means, such as smart cards.

Senator Finestone: There is infrared.

Mr. Allmand: There is everything you can imagine. Your privacy is open to greater scrutiny than ever before and it has become a bigger issue.

Senator Finestone: Do you see any constraints? I would like to refer to your remarks about this committee that is supposed to oversee the mes démarches with respect to the application of rights and democracy. There is supposed to be a continuing committee of officials on human rights within the governments of Canada. The federal Department of Justice has a committee that is supposed to vet all legislation to ensure that it respects the rights outlined in the Canadian Constitution and the Charter.

How does one ensure that such rights are being respected? I have a charter of privacy rights that I am trying to get the government to look at in a positive light, flowing from the study of which you were a part and that I chaired at that time. I seem to be hitting a stone wall. It certainly was before what took place on September 11. Now the atmosphere out there is really crucial. As a former solicitor general, I am sure you would recognize the fact that the RCMP and the police are not exactly keen on any kind of restrictions on invasion of privacy.

Mr. Allmand: With regard to our campaign for the ratification of the American Convention on Human Rights, I understood it was going to be taken up as a result of many NGOs saying it should be ratified. They agreed to take it up at this continuing committee of officials, federal and provincial. I found out that the chair of that committee was not from the Department of Justice, but from Heritage Canada. I immediately said, "Why is it under Heritage Canada?"

I have never received a good answer. Some of us asked if we could be observers at that meeting and were turned down. They said it would be totally in private. They discussed the issue that I was interested in, the pros and cons of ratifying the American Convention on Human Rights. After the meeting was over, one of the federal officials I know well told me privately what happened, but there is no official report of which I am aware. There may be one coming out.

As to why it is under Heritage Canada, I was told that on the 25th and the 50th anniversaries of the universal declaration, it was Heritage Canada that put out the publicity saying what a great thing it was.

With all due respect to Heritage Canada, they should not be chairing that committee. It should be Justice, or some other department that is more concerned with human rights and justice.

Senator Finestone: It was actually set up to coordinate federal and provincial action with respect to Canada's international human rights obligations. I presumed it was chaired by Justice, but the responsible federal, provincial and territorial Ministers of Justice have not met for several years. This committee meets in camera.

Mr. Allmand: They are officials. They are not ministers.

Senator Finestone: Yes, so there is no accountability.In looking at the kind of things this committee can do, would you recommend some positive actions that we could undertake to ensure that this committee is put back into place and that government legislation is vetted with an eye on the rights of people?

Mr. Allmand: Absolutely.

Senator Joyal: I have the same status as Senator Prud'homme. I just checked the list. I am not a full member.

The Chairman: For the benefit of Senator Prud'homme and any others, we have tried to open up this committee to involve as many senators as possible. Until time becomes a problem, when we may have to narrow the questioning because senators who have a vote will have to write a report, we will try to give everyone an opportunity to speak. I would encourage shorter questions and answers. Other than that, there are no restrictions and no differences. We do not operate in camera on any of our committees. We are trying to work a little differently, in the spirit of human rights. We are trying to treat all senators equally here.

Senator Joyal, it is up to you whether you wish to go now or later.

Senator Joyal: I can go now.

Mr. Allmand, I am pleased to personally welcome you here. On the comments that you made in answer to a question from Senator Finestone, many years ago there was a division within the Secretary of State calling for promotion of human rights.

The objective of that division was to study emerging rights and to try to create consensus among provinces and various groups in Canada to recognize upcoming human rights. This dates back to the period when there was a merger of various departments; that was left with Heritage Canada instead of being transferred to Justice Canada.

That being said, I wanted to add to Senator Beaudoin's comments about economic, social and political rights. I am a permanent member of the Legal and Constitutional Affairs Committee of the Senate. In regard to Senator Cohen's bill to recognize an amendment to the Canadian Human Rights Act, we voted to prevent discrimination based on social condition. We had a full debate and study here about that bill. That bill passed unanimously in the Senate. When it was sent to the House of Commons, it was blocked by an argument that the Minister of Justice was working on some amendments to the Canadian Human Rights Act. That does not solve the problem, but that is where it is so far as the Senate is concerned.

I am concerned about the organization of the work of this committee. This committee is a precedent. There has never been a permanent committee of the Senate on human rights. At this preliminary phase, what is important is to organize the work of that committee on a structured basis.

Mr. Allmand, when you were a member in the other place, you probably attended some meetings of the Public Accounts Committee, where the auditor general is always in attendance to review the various testimonies of members of the administration and to make comments, so at the end of the meeting there is a capacity to follow up on decisions.

I believe you were a member of the Official Languages Committee. You will remember that the official languages commissioner was always in attendance, not always the person of the commissioner but sometimes a representative. The commissioner played a significant role in organizing the work of the committee so that there would be progress in a structured way.

I am concerned that among the nine subjects that you have raised, some of them could be of particular assistance to this committee, especially the item that Senator Finestone mentioned, the review of conventions dealing with human rights on a five-year basis. I believe that you, or a representative of your centre, would be of assistance to this committee, depending on how it decides to structure its work.

[Translation]

I do not know what will happen to this committee in the next few months. It is important for you to take part in the work of this committee so that it can become your parliamentary wing.

[English]

Not only do you need to come to Parliament when you are called, but you need to be here on a permanent basis, so that you could contribute to this discussion and bring to our attention the results of your experience and studies and raise issues that we may have failed to see, but which are nevertheless an important part of what needs to be dealt with. Would you be ready to do that? Do you have the capacity to do so, or would that create an additional burden that you are not in a position to take on at this point?

Mr. Allmand: That would be part of our mandate. However, if you decide to do that, I would suggest that in Canada, for domestic purposes, we have the Canadian Human Rights Commission, and Madame Falardeau-Ramsay is in charge of that. Our mandate is principally international. I note that the mandate of this committee is both human rights domestically and internationally. There is a relationship between the two.

I was on the Official Languages Committee for about 15 years, mostly through our opposition years. The various commissioners did attend, as you said. I had significant experience with that committee. I did not have as much experience with the Public Accounts Committee, but I know what you say is correct. I may not always be available. It would depend on the issues. We have experts on the various subjects to which I have referred. We have people who are expert on women's rights, indigenous rights, democratic development and so forth.

I was pleased to hear about Senator Cohen's bill. One of the recommendations of the special review committees was that a provision against discrimination on the grounds of social condition be added to the proposed amendments to the Canadian Human Rights Act. Since the election, a new bill has not been presented. Many of us have been writing to Minister McLellan asking that such a bill be brought forward.

Senator Joyal: You have mentioned that one of the major issues in dealing with terrorism is achieving balance. In your letter to the Prime Minister, you wrote about balancing the legitimate objectives that a state must pursue to fight terrorism with the actual means and tools used by government to implement those objectives. That is sometimes a difficult balance to maintain. How do you define your current role in relation to that?

Mr. Allmand: The right to life is an important right. That was massively violated in the attacks in New York and Washington. Other rights include the right to freedom of expression and the right of dissent. I could go on.

Our mandate, given by Parliament, is to defend and promote human rights as set out in international covenants. If Canada were to take measures in contravention of such a treaty that it had signed, we would speak out on that. That is our mandate. We are not experts in defence.

I am a former solicitor general. I am familiar with the balance about which you speak. I know we must take measures to combat crime. However, we should do so according to law and our Charter. Both the United States and Europe have bills of rights. If we are defending democracy and our way of life, surely we should respect those things that are part of our democracy, such as the rule of law. If you must amend laws, you amend them; you do not just break them. Some people, not necessarily governments, say we should do this or that without any reference to international standards on human rights, or even our own domestic standards. That would be a terrible mistake because we would look like hypocrites. First we say we are defending democracy, and then we ignore our own laws and standards. I hope there will not be the killing of innocent people. If that happens, we will be repeating what happened to the innocent people who were killed on September 11. Police forces and armies have a lot of technology, equipment and information. They should be able to accomplish their tasks without abusing human rights or the principles of our democracy.

Senator Finestone: Mr. Allmand, would you be good enough to table that letter?

Mr. Allmand: Certainly. I will provide that to the clerk.

Senator Finestone: Could you also table the document relating to the centre's involvement in Canadian human rights issues?

Mr. Allmand: Yes, I will do so.

Senator Poy: I would like to have your view, as the President of the International Centre for Human Rights and Democratic Development, on how countries uphold economic, social and cultural rights in relation to human migration. I am thinking of undocumented migrants, because in Canada one can usually apply as a political refugee, but not as an economic refugee. What is your view on that? I believe many people move for economic reasons.

Mr. Allmand: That is right. For several years, I was the critic for immigration when we were in opposition and Mr. Mulroney was the Prime Minister. We had many cases of people manufacturing grounds that would admit them, even though they were really economic refugees. As you probably know, there is an international convention on refugees and the definition of "refugee" does not include economic considerations.

There are also conventions on migrant workers and there are conventions being developed on trafficking in women and children, which is becoming a serious problem, especially with women being sold into prostitution, sexual slavery and so on. However, the area you speak of is under study.

I mentioned the areas in which we are involved. We have decided not to specialize in refugees because there are already many groups in Canada doing that. There are a number of groups, including Table de concertation in Montreal; therefore we do not specialize in it, but I have looked at that in a distant sort of way. It must be dealt with, but I have no answers for the honourable senator at this point.

Senator Poy: I do not know whether any legal counsel for refugee applicants have ever used economic reasons by stating that their clients are economic refugees.

Mr. Allmand: It would not work because Canadian law and the international convention do not provide for economic refugees. The only thing that could be done, and I think Canada does this, is once refugees are here, they are entitled to certain care. We do not let them starve to death. If you were to apply the international conventions whereby people have the right to food, health care and housing, the first answer, of course, would be more substantial development programs so people do not need to move for economic reasons. I have appeared before committees in the House of Commons on that subject because Canada, under Mr. Pearson and up until 1984, had nearly approached spending .07 per cent of GDP on development. From about the middle 1980s, we began to slip backwards and our development aid assistance as a percentage of GDP has gone down and is currently quite low. Last year, there were measures introduced in the budget to turn that around and start putting more money into international development.

I have been in refugee camps in many parts of the world, such as in El Salvador, the Palestinian territories, Gaza, Burma, and Pakistan, with 2 million Afghani refugees. Most of those refugees would like to go back to their homes and live in peace and have enough to eat. Most people do not want to be uprooted and moved to another part of the world. They want to live in their own homes, they want enough to eat for themselves and their families, and they want a job. Perhaps we should concentrate on those things. I do not know how to solve the problem of economic refugees.

[Translation]

Senator Prud'homme: You said that in the final communiqué issued after the meeting in Durban, only 7 paragraphs out of 400 -

Mr. Allmand: Out of 443, but that was the first document, not the final statement.

Senator Prud'homme: Right. It is deplorable that in Canada we heard about the Palestinian issue in only seven paragraphs. The Government of Canada objected to only four of them.

[English]

I am of the opinion that the conference was hijacked by some groups in Canada who did everything in their power to see us leave. I want to be on record as saying I am thankful for the NGOs, and the sanity of the government up to the last minute. I know there was strong debate within the conference and within the Canadian delegation in private, because I checked my facts. I am very proud of the role played by the NGOs on other questions, that reason prevailed, and that Canada did not join the United States and Israel in leaving the conference.

The second point is that everyone these days is talking about terrorism. For 30 years I have been involved in the International Parliamentary Union, which is now under different direction here in Canada. No one has ever come to a satisfactory definition of the word "terrorism." This is troubling, because it is becoming a useful word for people to hide behind. It is a word that many governments will hide behind in order to attack any groups who disagree with them.

You have said that we should try to understand the human rights abuses of today. I agree with one of my colleagues who said that the terrorists of tomorrow are the children of the refugee camps of today. I will accept that.

I know that your institution is of strong character. You are appointed for a long term, so you have independence. Do you see it as part of your mandate to search for and find the roots of the difficulties we are in today? You mentioned that word in your statement, and it is something on which I will elaborate later.

Can your institute be of assistance to parliamentarians who would not be afraid to go a little deeper into the search for more sanity in the world by addressing the real question? It seems that Parliament, and the press, which is being more and more controlled, unfortunately, are being pushed not to find any links. That which happened in New York came from another planet. To me, it is the ultimate culmination of problems that we may not have addressed in the past.

I want to thank you for being one of those whose intervention brought sanity to the Canadian delegation, for remaining to the very end in Africa. That you did so is a testimony to the institute that you lead.

Mr. Allmand: Senator, I do not think it is correct to say that this world conference of over 10,000 people was hijacked by a Canadian group.

Senator Prud'homme: Thank you for that correction. I meant that that was the perception from here, because that is all we heard about.

Mr. Allmand: As politicians, many of you are aware that if there are 50 things happening at a conference and one is controversial, the media will ignore 49 and spend all their time on one. It is true that there were people carrying signs that were incitements to hatred. If there are problems with human rights in the Palestinian territories, you deal with those, but you do not incite any other group to hatred. You try to resolve the problems.

You and I have visited refugee camps, and it is true that there are serious problems in those camps, but no matter how bad something is, there has to be a positive solution that does not involve killing others. I say that to every side.

It was not reported, but although there were some extremists in Durban carrying signs that were incitements to hatred, it was wonderful to see a group of young people from Peace Now singing and dancing with both Palestinian and Israeli flags. One of my old and good friends from the House of Commons became upset with a group of Hasidic rabbis from Brooklyn marching with the Palestinians and saying "Down with Israel." People did not understand that. Of course, the press followed the Hasidic rabbis, with their black hats, long curls and black suits, saying "What is this? These are Jewish rabbis against Israel?" Of course the theology behind that had to be explained.

There are some very serious problems and we must address their causes. You cannot justify terrorism, but if you really want security in the world, although you can build walls and maintain armies and police forces, it would be wise to address solutions to the causes.

It is the same with any kind of crime. When I was solicitor general, I said that we could have more prisons and more police, but unless we tackled the causes of crime, be it through better family crisis intervention or treatment for drug and alcohol addiction and psychiatric illness, the problems would remain. The same is true internationally.

[Translation]

Senator Ferretti Barth: You say that free trade at the expense of our rights is too high a price to pay. Most of the protestors at the Summit of the Americas in Quebec City and at the Summit in Genoa, Italy, were young people. They fear that government leaders are restricting their rights. Can you explain why they react in this way?

[English]

Mr. Allmand: Prior to the government convention, there was a five-day NGO forum with 2,000 to 3,000 people from all over the Americas. It was carried on peacefully and quietly. There were 10 commissions dealing with the impact of human rights on the environment, labour standards, health and so on. We heard from experts, many of them middle aged like myself, and came out with reports on many of these issues.

We must make it clear that those of us who were there to "protest" are not opposed to trade or globalization. We are opposed to the development of trade treaties that do not recognize other treaties that we have signed and that carry on trade without any reference to international human rights and environmental treaties. Mr. Pettigrew himself said there must be cohesion. A country cannot one day sign treaties on human rights, and the next day sign treaties on the FTAA and the WTO and say that they have nothing to do with each other. When you ratify treaties, they must all be read together. Consequently, you cannot ignore human rights and international law simply because of a WTO treaty or a potential trade treaty in the Americas. That is our argument. We are saying that what applies in Canada should apply internationally. We have promoted trade and business in Canada for many years, but subject to our Charter of Rights. Any law on banking or commerce is subject to our Charter of Rights, and we have a very successful business community in Canada.

The problem with trade agreements that do not have minimum standards is that companies can leave Canada and set up in the Maquiladora Corridor of Mexico, where they outlaw trade unions and have no environmental standards. Therefore, there is pressure on Canada to lower those standards in order to keep those companies here. Within the trade zone there must be, not Canadian standards, because they are too high for some of those countries, but internationally recognized standards. The American Convention on Human Rights has been ratified by 27 of the 34 American countries. Those are the standards that should apply.

The example I gave was the right to free collective bargaining and to form a union. Even though in El Salvador or Honduras they bargain and agree to a wage that is much lower than the Canadian wage, at least it is freely arrived at and the Canadian labour unions cannot complain. They can complain if trade unions are not allowed and a Canadian company manufactures shirts for $2 and sells them for $45 in Canada while breaking conventions that those countries have ratified.

We have told the people who were trying to prevent the governments from meeting that the universal declaration talks about the right of peaceful assembly. That applies to governments as well as to NGOs. If you try to prevent governments from meeting, some day, skinheads or reactionaries will try to close our meetings. Using the example of the meeting of 2,000 to 3,000 from NGOs the preceding week, what would have happened if a group of neo Nazis had tried to prevent that? We would say that was wrong, that we have the right the meet. Governments have the right to meet too. We have the right to protest, but not to prevent the meeting from taking place.

The Chairman: There are many more questions for you. Perhaps we will have another opportunity to ask them. I have one. Since the centre has been set up, and you are obliged to report to Parliament, could you reply in writing as to whether you have had any formal discussion and dialogue before the House of Commons or the Senate or any particular committee within the 11 years that the committee has existed? Also, would it be valuable to have direct access either to the chamber or to this committee on an annual basis after you file your report? I will leave that for you to ponder and reply when you can.

Mr. Allmand: That is easy to answer. I will do that within a week.

The Chairman: Thank you for coming here this evening and staying past the time we indicated to you.

With us next is Professor Stephen Toope. Professor Toope, your name came to us quickly when this committee was formed. It was stated that you would be invaluable in helping us frame what we should embark on in our coming studies. This is the initial phase of our study, to determine how we can best work towards reviewing the machinery of government and looking at ways and means that parliamentarians and government can use to strengthen the machinery, and our obligations under international and national human rights. We have had the benefit of your papers in an initial package of material forwarded to all members and your excellent paper that was filed with us for the purposes of this committee. I leave you to your opening remarks, following which we will have some questions for you.

[Translation]

Dr. Stephen J. Toope, Professor, Faculty of Law, McGill University: I would like to thank you for your invitation. I am very pleased to be here today.

[English]

I think I have been asked to speak here primarily because I have been working quite a lot recently on the interplay between international human rights law and domestic law. Given the events of September 11, and subsequently, one could imagine that this is a bit like discussing minor issues, like fiddling while Rome burns. However, exactly the opposite is true. Mr. Allmand's comments point us somewhat in that direction. We are in a period where there is no greater moment of need than to reflect carefully upon Canada's human rights commitments and their implications both for domestic law and for the international actions of the Canadian government.

In 1958, Ivan Rand, a member of the Supreme Court, argued that, "It is obvious that the life of every state is under the swift transformation of these days, becoming deeply implicated with that of the others in a de facto society of nations."

Since then, that observation has become more and more true, especially in the area of international human rights law, which increasingly binds together civil society around the world, even as it creates both tension and points of connection for governments. Canada has a strong record in the promotion and protection of human rights, but we are nonetheless failing to be the best that we can be, in part because we are very confused in Canada about the interrelationship between international human rights law and Canadian law. That will be the focus of my comments.

I wish to situate those comments for a moment in the 1999 decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration.) Justice L'Heureux-Dubé, writing for the majority, asserted that: "the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review."

In saying this, she was picking up on some work that had been started by then chief justice Dickson, where he argued that, at least in relation to the Charter of Rights and Freedoms, international law would provide what he called "a relevant and persuasive source" for interpretation of the Charter.

In the Baker case, that was taken even further and the Supreme Court of Canada declared that international human rights law would be relevant not only in interpreting legislation, but also in shaping administrative discretion. Most recently, in a case called Spraytech, the court has gone one step further and said that, even for the purpose of municipal regulation - in that case, the regulation of pesticides - international law would have weight in understanding the delegated authority of municipal governments within the framework of Canadian constitutional law. These are dramatic developments and worthy of attention.

All of us tell the story of international law in Canada: refugee claimants, anyone who invokes an internationally recognized right, every lawyer who argues about international sources of law, and every environmentalist who speaks about sustainable development or precaution. This all represents the impact of international law on Canada. There are two formal actors that I want to focus on for a moment, namely, the legislature, especially Parliament, and the courts.

A few basic propositions are worth repeating. It is trite law that international treaties are not self-executing in Canada. Our dualist constitutional framework requires the transformation of treaties by legislative action within the strictures of the powers in sections 91 and 92 of the Constitution Act, 1867. However, like most so-called "trite law" this actually masks as much as it reveals, as I hope to demonstrate. Aside from treaties, if one tries to imagine the relationship between customary law, international custom and Canadian law, there is really no clarity whatsoever. It is not even possible to state a trite conclusion. The status is confused or incoherent rather than trite. Let us think for a moment about the status within domestic law of treaties that Canada has ratified. There is, of course, no dispute that the power to conclude treaties is vested in the Governor General as delegated authority under the Royal Prerogative, but as was stated many years ago in the Supreme Court, in the absence of a constitutional provision declaring a treaty to be the law of the state, legislative transformation of the international obligation is required. With the continued vitality of the Labour Conventions case, we know that transformation must take place within the jurisdictional confines of the Constitution Act. Unlike in Australia, there is no federal implementation treaty power. The problem, then, is what constitutes transformation? What must happen for a ratified treaty to become Canadian law? Well, here the story becomes complex and the courts come into play.

In the narrow sense, transformation can be an explicit legislative act through which Parliament, or the provincial legislature, adopts the treaty and implements it within Canadian law. Even with that understanding, however, practice is diverse. A treaty text could be transformed directly by reproducing all or part of the treaty within a statute, either in its body or a schedule. Alternatively, a preambular statement may indicate that a given piece of legislation is being passed to fulfil treaty commitments.

Less direct and more problematic is the common Canadian practice of inferred implementation, or transformation through the enactment of new legislation or the amendment of existing legislation. Whether that kind of inferred transformation is real transformation is a difficult question, and one that is giving rise to interpretative problems in our courts.

What happens when the argument is made a little more extenuated, and it is said that the provisions of a particular treaty reflect law that Canada has already passed? This is often said to be the case for human rights obligations.

Parliament has often left the status of Canadian human rights obligations unclear. I ask whether this is intentional or whether it is mere sloppiness. Your committee could well address that issue.

Courts have traditionally attempted to deal with these uncertainties concerning statutory transformation by invoking judicially crafted interpretative presumptions. The first presumption is that if the statute is read as transforming a treaty, a court should have reference to the treaty to interpret the statute. This is a reverse reference-out. The statute refers to the treaty and then the treaty is used to interpret the statute. In practice, that has meant that the interpretation will depend upon the court's understanding of Article 31 and Article 32 of the Vienna Convention on the Law of Treaties, which is notoriously difficult.

Other presumptions are more important when the status of treaty transformation is less clear, where no statement has been made. There, Canadian courts have had to rely on flexible presumptions such that in interpreting Canadian statute, one should presume that a legislature intended to act in conformity with Canada's international obligations, or alternatively phrased, that a court should strive to interpret a provision so as to be consistent with international law.

That latter presumption has been widely invoked in cases under the Charter of Rights and Freedoms, which makes sense, because the Charter nowhere expressly states that it is transforming international treaty commitments. Vague presumptions are all that have been available to our courts. This has been a notable challenge for anybody trying to argue, for example, that the Charter somehow transforms Canada's obligations under international covenants on economic, social and cultural rights. That has been a particular difficulty.

In relation to the Charter, there has been a more positive statement by the Supreme Court. As I said earlier, Chief Justice Dickson said that the Charter should be interpreted in the spirit of international human rights law, so that human rights law should always form an interpretative context that would be relevant and persuasive. That has been particularly powerful in interpreting Section 1 of the Canadian Charter, which is concerned with any limitations upon the rights contained therein.

However, I want to suggest that when Chief Justice Dickson first made these arguments in 1987, during what was actually a trilogy of labour cases, he had tried to introduce an important distinction between general human rights law, which he said would be a context for interpretation of the Charter, and Canada's specific human rights commitments in treaties to which it was a party, which would serve as the benchmark for Charter rights. It would not be a vague context, but a test of the rights. The Charter should be presumed, he suggested, to grant protection "at least as great" as that afforded by Canada's treaty obligations.

In my view, the court has, sadly, ignored this distinction and I think it has become a major problem, not only in Charter cases, but also in all cases where the Supreme Court invokes international law. The court invokes international law generally as well as cumulatively, but it does not carefully analyze Canada's obligations within international law.

When we fail to uphold our obligations, we tell a story that undermines the respect for law internationally, which today is perhaps a very important thing for us all to be thinking about.

The interpretative presumptions that the Supreme Court and other courts have articulated have not proved to be adequate in dealing with the uncertainty caused by the practices of various legislatures and governments in treaty transformation.

Here I reach the heart of that to which I want to speak.

I do not blame the courts for their failures. How can they deal cogently with utterly inconsistent practice, and even, I would suggest, some open hypocrisy. The problem is pointed out clearly by the case of treaties ratified by Canada but untransformed, ones that have never been expressly transformed into Canadian law.

This governmental approach is especially common for human rights treaties. In the absence of transformation, are the solemn international obligations of the Canadian government to be given no account by Canadian courts? Of course, one might be tempted to say, "Yes, because that is the structure of our constitutional system." If one puts the point somewhat differently, or perhaps more pointedly, Canada ratifies an international treaty claiming prior domestic law conformity. The government then responds to the questioning of international treaty monitoring bodies by saying that Canada has already implemented its treaty obligations. Should courts simply defer, then, to a subsequent government argument that the international treaty obligation has no relevance because it has not been expressly transformed? What of the assertion of prior compliance? What of Canada's reputation for good faith in reporting upon implementation to human rights treaty bodies? Should the government be held to its word?

I think that those sorts of questions must have influenced the judgment in the Baker case, which I discussed at the beginning of this presentation. The Supreme Court's decision, according to Justice L'Heureux-Dubé, was, of course, complex. For our purposes, I remind you that the key ruling was that, even though Canada had never explicitly transformed its obligations under the Convention on the Rights of the Child into domestic law, none the less, immigration officials are bound to consider the values expressed in the convention when exercising their discretion.

The Supreme Court of Canada is not alone in suggesting that values contained in untransformed treaty obligations can shape the proper interpretation of domestic law. In a controversial decision in Australia in a case brought by the Minister of Immigration and Ethnic Affairs, the Australian High Court invoked the doctrine of "legitimate expectations." It is a very interesting idea. It gives rise to a procedural right to notice, and an opportunity to present argument if a statutory decision maker, someone operating under a statutory authority, proposes to act contrary to the terms of a ratified, but unimplemented treaty. Chief Justice Mason and Justice Deane held that the fact of non-transformation does not mean that the treaty holds no significance for domestic Australian law, both statutory and, even, common law. Their reasoning could be analogized to the doctrine of "holding out" as an element of good faith.

Let me quote very briefly.

Ratification of an international convention is not to be dismissed as a merely platitudinous or ineffectual act. Rather, it is a positive statement by the Executive to the world and to the citizens that the Executive and its agencies will act in accordance with the convention.

The Teoh decision did cause apoplexy within the Australian government. Various bills were lodged to overturn the judgment. That turned out to be not necessary for technical reasons, but I will not go into that.

My own view is that Baker and Teoh are salutary challenges to government hypocrisy, or perhaps lack of attention in ratifying treaties and failing to address domestic law implications of those treaties. Viewing unratified treaties as persuasive authority in interpreting domestic statutes and in shaping administrative discretion is a healthy development, in my view. As Justice Brennan argued in an Aboriginal property rights case, again from Australia, it could generally serve to provide a "basic legal environment" by which rights could be recognized.

Baker could have gone further. It seems to me that an opportunity was missed. Baker could have allowed the Supreme Court of Canada to hold that the "best interests of the child" was actually a provision of customary international law that could apply directly within Canadian law without the need for any form of transformation.

However, that would have caused the court to address an extraordinarily thorny question, which I hope you will think about a little: What is the relationship between customary law and Canadian law?

We simply do not know. There was a very messy judgment of the Supreme Court called the Foreign Legations case, many years ago, and since then, there have been attempts to clarify the situation, but all without success. I am afraid to say that in one of the most recent attempts, which was the Quebec Secession Reference, the Supreme Court hinted that it would not have jurisdiction to decide what it called "questions of pure international law." That was just a throw-away line in the judgment.

If that means simply that customary law becomes part of the laws of Canada for purposes of the court's jurisdiction, then I think that the observation would be unobjectionable. In other words, customary law is not "pure international law," but rather, it forms part of the law of Canada. If, on the other hand, the implication is that the Supreme Court cannot decide on anything relating to customary international law, then I would see that as a retrogressive step and one that I hope the court will reconsider in the upcoming Suresh judgment. Many of you probably followed that case, which involves an action against the Minister of Citizenship and Immigration.

In both the United States and the U.K., it is clear that customary international law forms part of the law of the land. Indeed, that was the holding in the Federal Court of Appeal in the Suresh case, and I quote:

Principles of customary international law may be recognized and applied in Canadian courts as part of the domestic law,...insofar as those principles do not conflict with domestic law.

Let me conclude with one observation on that point: the clear statement in the Suresh case in the Federal Court of Appeal, that there is automatic incorporation of customary law, upholds, nonetheless, the democratic role of domestic legislatures and courts. I want to be clear on this point. I am not suggesting that international law should simply apply in Canada despite the law and policy of duly elected governments of Canada and of the provinces. My point is that customary law should be presumed to apply unless altered, explicitly, or perhaps even implicitly. For treaty law, the requirement of transformation should continue to be imposed. However, pressure should be placed upon the Government of Canada to take ratification of international human rights treaties more seriously, perhaps through the work of parliamentary committees such as this one, or perhaps even by an assertion of power of oversight over the implementation of those treaty commitments. Ratified treaties should continue, and I hope they will continue, to be invoked by courts as persuasive authority. If Canada does not want to abide by its freely assumed international obligations, it should not ratify those treaties, and it should bear the political heat of non-ratification. If the provinces do not want to be bound, they should make this political issue transparent.

Building allegiance to international human rights law, within Canadian law, can inspire us, and I hope it will inspire you in your work, because the story that we are telling together is one of resisting the weight of mere power: it is upholding the sanctity of nature; it is struggling to promote respect for all persons; and ultimately, I suppose, it is an attempt to connect with other people in international society. It seems to me that that desire to connect must be one that we uphold and try to strengthen as we confront the challenges that we face today.

Senator Finestone: You have a superb command of the English language. You speak with clarity but you make one think while you are speaking. Thank you for your presentation.

I have become increasingly preoccupied with the whole question of privacy as a right and as a human right. I would like to hear your definition of "privacy," and whether you perceive it to be a fundamental human right. If that is the case, and where Article 12 of the Universal Declaration of Human Rights speaks to the issue of privacy, and as Canada was one of its authors through Sir John Humphrey, how can the non-transformation, the transformation, the interpretive presumptions, the treaty transformation, the customary law and Canadian law, all come together to have some kind of an impact, and at what level, to, first of all, help our judges of the Supreme Court? Many of our judges have made observations on privacy through using sections 7 and 8 of the Canadian Charter. You made it part of our law, but is that part of our common law or our inherited law? What is that? How can one move to ensure, particularly at this difficult time in the world, that our law is respected at a time when surveillance is also an important aspect of the way that we address the world in which we now live?

Dr. Toope: Obviously, it is entirely correct to say that privacy is emerging more and more as a human rights issue. There is a modest international framework for discussions of privacy, but it is decidedly modest. You are quite right in saying that the Universal Declaration of Human Rights, the European Convention on Human Rights and the International Covenant on Civil and Political Rights do have references to privacy. I know that the human rights committee sitting under the Optional Protocol to the Covenant on Civil and Political Rights has made important statements about privacy. Those should inform interpretations of privacy within the domestic context. This is an issue that I did not address in my remarks.

There is a major issue as to whether the decisions of international committees have any kind of precedential, or at least persuasive weight within domestic court systems. There has been a debate about that. Increasingly, we have seen Justice Bastarache, for example, in a number of judgments of the Supreme Court, refer to decisions of the human rights committee in helping him to understand various interpretive questions in Canadian law. Therefore, there is a modest framework, but this is an area where I would say there has been more work done in domestic legal systems than internationally. It would strike me that privacy discussions might best be pursued, if you are really trying to push the envelope, through comparative approaches, through looking at the European and American approaches.

One slight word of caution: within the American context, privacy has generated some very awkward decisions within courts at both the appellate and Supreme Court level. Issues around abortion, for example, are sometimes discussed within a privacy framework, and that is largely because there are no explicit texts to guide the courts. Thus, they have carved out what they call "interstitial rights," which exist in between the text of the U.S. Constitution and Bill of Rights. That, of course, has to be evaluated very carefully within the Canadian context.

If I may just conclude with one other observation: using the Charter probably can only carry us so far, because again, one has to read in, largely, any privacy rights. That is being done, as you say, especially with Section 7 of the Charter. It seems to me that this may be a place, though, where we should look back at the constitutional heritage in Canada.

It seems that we still have the possibility of articulating what used to be an implied bill of rights, which I think is largely related to general perceptions around the rule of law. People like Frank Scott, my predecessor as dean at McGill, and others, made forceful arguments that we cannot rely purely on the text that is presented to us in evaluating whether rights exist within a free and democratic society. Even though the Charter may not speak forcefully to questions of privacy, we may be able to craft broader arguments that there are rights that exist in free and democratic societies that must be upheld, even in the absence of express textual provisions.

Senator Finestone: My position has always been that if you are accorded rights, either directly or indirectly, then you should have rights to remedies, too. It would seem that if you call it a "charter," it creates a different perception in law than if you call it a "declaration' or a "bill." Although it is unlikely that we will see an amendment to the Constitution in the foreseeable future, I do know that there was an argument made for a constitutional amendment, I believe by Senator Beaudoin, on privacy rights during the time of the constitutional debate.

On the question of allowing this committee to examine the interrelationship between the international agreements and the reports that Canada submits on them, have you found an important lack in the Canadian democratic process? Does there seem to be a lack of transparency or openness in the responses that the Government of Canada gives every five years to certain conventions or, at other times, to other protocols? Do you think there should be oversight on the right to make change before it answers to the international agreements?

Dr. Toope: The short answer is that there is a lack of transparency, although I do not believe that is intentional. To give it its best construction, it is simply part of our Canadian heritage, which is that the executive has really been seen historically as having an almost unfettered authority in foreign affairs. To the extent that international human rights norms penetrate more directly within Canadian law, there is a strong argument to be made that the representatives of the Canadian people, who normally would see themselves as having legislative authority over these areas, should start to push for more involvement in the process of elaboration, and even of reporting, in relation to international human rights treaty commitments.

This is a general pattern. This is not something that is happening only in Canada. The interplay between international and domestic law is becoming richer, more complex and more difficult. That is part of the process that is labelled "globalization." It is one of the positive aspects of globalization, in my view. However, it does give rise to significant concerns around how democracy responds to treaty commitments made without necessarily, in the Canadian context, parliamentary engagement, and finding that those treaty commitments come to play an important role within domestic law.

I would like to see more engagement. You should consider over the next while whether there should be a right of editing or "first refusal." I certainly believe there might even be some openness on the part of the people in the trenches who actually work on these reports.

I know that our colleagues in Foreign Affairs and the Department of Justice find it difficult to prepare those reports. I also know, without telling stories out of school, that they are concerned about the relationship between international law and domestic law. I was asked to do a major report for the Department of Justice on how it organizes itself because of concerns about this increasing interpenetration. As parliamentarians, you would not necessarily be in an adversarial role, trying to somehow grasp power from people who had it before. There is a general recognition that this is an emerging problem. More public discussion would be quite well received by many people.

Senator Beaudoin: I wish to return to the Baker case. It is true that we have a dualist system. If we enter into a treaty, we must legislate to implement that treaty. If we do not do that, the law of the land is not changed. If we stop there, everything is fine. However, we may have a problem with Bill C-7, because, if I am not mistaken, Canada is saying that our law, internal or domestic, is already perfect in that field and we do not need to implement the treaty. If I understand the Baker case, it is not that clear.

Suppose we have a treaty on labour law. Obviously, Ottawa and the provinces should legislate to implement the treaty. Suppose that a province says it will legislate the treaty by a statute, and suppose that Ottawa says there is no need to do that because the law of Canada is already responding to the treaty. What is the solution to that?

It worries me, because we are a federation. If the treaty concerns both powers, both must legislate. One may do so, but the other may say there is no need. How would the court react, in your opinion?

Dr. Toope: You are rarely, if ever, mistaken, Senator Beaudoin, so I would never assume that you were.

A somewhat different role may be expected of the courts if the Baker case does represent a pattern. The Spraytech case indicates that it might. More cases are coming up that will tell us definitively whether this is an aberration or a shift.

Senator Beaudoin: They have not solved the problem yet.

Dr. Toope: They have not solved the problem. However, your question raises two points, and I do want to stress this: It would not be appropriate, wise or possible for the court to say that a non-ratified treaty should nonetheless guide our interpretation of domestic law. My opinion is that the court should not do that if it would run roughshod over a division of powers question, so that the Canadian constitutional framework is still in place. That is a role that the court might have to arrogate to itself, which would be to assess, if it is to discuss the influence of a non-ratified treaty, whether that influence can be felt purely within the legislative confines of the division of powers. The court will face that pressure.

The Supreme Court of Canada is well equipped to do so, and historically, that has been one of its greater roles, to assess those division of powers questions.

There is another way of addressing this before we get to the courts. Courts are to be avoided, if at all possible. The way to do that would be to improve the process before we ratify treaties. This returns to Senator Finestone's point. If there were a more serious review of the implications before we ratified, we might very well avoid some of the problems. That process is behind the scenes to some extent, at least in the human rights context, in these federal-provincial-territorial committees that look at human rights situations. However, all of that, as Senator Finestone suggested, is behind closed doors. If Parliament were asked, not necessarily to approve treaties, because that would be a fundamental change to the constitutional structure, but to play a role in asking the hard questions - What could this mean? Have we thought this through? - my sense is that we could probably prevent some of the division of powers questions ever reaching the courts. However, I hold on to the courts as a last bastion in division of powers cases, where they will say, "Well, we could interpret an international treaty obligation as affecting the division of powers, but of course we will not because that would be against our constitutional traditions."

Senator Beaudoin: The division of powers is not my concern. My hypothesis is that provinces have jurisdiction in labour law. The federal Parliament has power in labour law. A province is implementing the international treaty, so it becomes the law of the province ipso facto. The federal Parliament says that it does not need to do that, that it already has legislation dealing with that, and therefore there is no point in implementing the treaty.

Can we say that the treaty is valid at the provincial level but no longer exists at the federal level?

Dr. Toope: No, in my view it would be the inverse situation. The situation would be that the treaty has been appropriately implemented at the provincial level within the division of powers of the Canadian federation, but it has not been, perhaps, appropriately implemented at the federal level. Then the question becomes purely whether the unimplemented treaty can be used to interpret the status of the federal law.

Senator Beaudoin: It should not.

Dr. Toope: I would suggest that it can under the Baker case and the Spraytech case. It will not be applied directly. That is not the same thing. The court is not saying that even though the treaty is not implemented, it can apply. It does not apply. I argue that the court could say, "If you are suggesting that you have already implemented the treaty, then why can we not interpret your legislation or your ministerial discretion such that you do indeed conform with the treaty?"

Senator Beaudoin: They may do that. This is what you think may happen?

Dr. Toope: I think it is possible. I do not think it is inevitable, because there is currently some resistance on the part of at least two members of the Supreme Court to that approach.

Senator Cochrane: Is there cooperation between the departments, both provincially and federally, in coming to this sort of an agreement?

Dr. Toope: Enormous efforts are made behind the scenes to try to coordinate approaches. Indeed, Canada often does not ratify international instruments until it has some level of commitment from the provinces. There is a famous treaty in a different area, relating to settlement of investment disputes, that Canada signed many years ago but has not ratified because it cannot bring some of the provinces onboard. There are efforts that go on behind the scenes, particularly with ministries of Justice coordinating with Foreign Affairs. However, sometimes they find that very difficult because there might not be the same level of cooperation at the political level as at the bureaucratic level.

Senator Finestone: Are there federal-provincial-territorial committees addressing the issues of international law?

Dr. Toope: No, they typically address substantive issues. There is one in relation to human rights that meets very regularly, and, largely, quite effectively. It has been a very effective committee, but again, that is happening behind the scenes. That is something your committee should explore.

Senator Finestone: I thought we just heard that they were not meeting.

Senator Joyal: There are meetings of officers.

Dr. Toope: Historically, and certainly within the last year and a half, that committee, at least of the bureaucrats, has met. I do not know whether it has at the political level.

The Chairman:I followed all of your reasoning. It concerns me when the federal government states, after signing and ratifying a covenant, that it is putting in new, national legislation that conforms to its international obligations. It does nothing in enabling legislation. It simply says that our standards are higher than the covenant and therefore we need not do anything. In implementing new legislation, the government undergoes no external scrutiny. The only recourse for a Canadian who questions that is to wait for case law, as I understand it.

When amendments to the Young Offenders Act were put forward in 1995, the government stated that it was in full compliance with the International Covenant on the Rights of Children. However, international reporting groups subsequently indicated that we were not. I am talking about the federal role in this. I know that the administration of justice involves the provinces, but the federal government said they had done their homework and were in compliance.

We as legislators are faced with accepting that at face value. International groups that have a right to comment on the international treaty say that Canada did not comply.

We are now being told that further amendments are being made that do create compliance. There is still a feeling that the wording is not sufficient. The conundrum is not only for the courts, but also for the legislators. Do you have any suggestions on how to overcome that?

Let me put this before you: The Charter of Rights and Freedoms has set up a process whereby the departments have to come together to discuss legislation and a minister must sign a certificate that it complies. There is no such process with regard to compliance on international covenants. Would such a process be helpful, or can you suggest another, short of constitutional change, to solve this conundrum for legislators who want to do their job and not foist upon the courts the dilemma that we see in Baker?

Dr. Toope: I completely share the underlying sentiment, which is that we should try to avoid having all these issues being resolved by courts. It would be better to address them before we get to court.

I want to be careful about this, because I do accept that to force governmental authorities to have certificates of compliance with all international laws would be really unreasonable, and probably impossible, because of the complexity of international law, the range and scope of its potential application, and also because, sometimes, of its uncertainty, especially in customary law. However, I would say that, at least building on the Charter experience, asking for a process where people are intentionally and collectively, politically and bureaucratically, looking at compliance with Canadian obligations would be very valuable. I do not think that it is accurate to say that it should be refused simply on the ground that it is too difficult to accomplish.

The experience with the Charter is there. I would be very supportive of that type of initiative. However, at the end of the day, it is still possible to get it wrong, and there will be the ultimate test. The courts may ultimately say that you did not, in fact, comply, although you thought you did.

If we all spent more time paying attention to that in advance, it would be a valuable process and, frankly, an educational process for the Canadian people as well. We invoke these conventions rhetorically a great deal, but most Canadians do not have a sense of what all that means to Canada. There is a wonderful educational role that could be played if intentional questions were raised about what this could mean for Canadian law.

The Chairman: The Canadian public has an expectation that may not be correct. When we sign and ratify something, they believe that somehow that means total compliance as opposed to a question mark. That "educative quality" would enlighten people as to the complexity of this whole area, because I think quite the opposite is currently true. For example, we are in total compliance with the rights of the child; therefore, why is it not happening? I hear that question often.

I have raised a couple of supplementary questions.

Senator Joyal: Bill C-7 is a good case. The second question that has been referred by the Quebec Order in Council, by the court of appeal in Quebec, deals specifically with two interpretations of international covenant. Both governments recognize they are bound - that is, the federal government and the Quebec government - but the Quebec government feels that it has a different interpretation of the obligation. In that context, it is difficult to see how there can be pre-arbitration, as you have suggested. We have not heard this yet from the Standing Senate Committee on Legal and Constitutional Affairs, but from reading the testimonies that were given when the other place studied the bill, it seems that the federal government is of the opinion that the bill complies with Canada's international obligations. The Minister of Justice says in her press release, commenting on the reference to the Court of Appeal:

[Translation]

The Government of Canada is convinced that Bill C-7 is constitutional and that it is a valid way for the federal government to exercise its jurisdiction in the area of criminal law, and that it complies with the United Nations Convention on the Rights of the Child. We support this legislation and will defend it if necessary.

[English]

In such a case, where there is a clear recognition by both governments that they are bound, then the question involves the interpretation of the international covenant, essentially, because by that time, it is domestic legislation. It is so recognized by two levels of government.

Dr. Toope: You are exactly right. In that case, we would probably have to rely upon the court to help us sort out what is the best interpretation, just as we would have to rely on the court to sort out the best interpretation of Section 7 of the Canadian Charter of Rights and Freedoms. If there really is a division of opinion around interpretation and everyone acknowledges that the covenant is relevant, the court will have to issue an authoritative interpretation for the purposes of Canadian law.

The big question then arises: Will the court look outside the framework of Canadian law to help it interpret the covenant? The answer to that is: Of course it will, but we are not sure what it will look at. Will it look at the decisions of the committee sitting under the Convention on the Rights of the Child? Will it look at the decision of the committee sitting on the Covenant on Civil and Political Rights? Or will it look at other courts that have looked at comparable cases? That will be the interesting question that arises in the Quebec Court of Appeal. What sources of law will it feel are appropriate?

I have no problem with the process. We are far enough down the line that there is not much else that one can do, aside from a political interpretation.

Senator Beaudoin: Now that the Court of Appeal is being asked for an opinion, as the province has the right to do, they will have to study, first, whether, when we enter into a treaty, there is a legal obligation to give effect to that treaty? It is about time that some court said something about this. Second, in this particular case, where the federal authority has stated that our laws already comply with the objective of the statute, the objective case in that legislation, we may, indirectly, have a debate on the Baker case.

Dr. Toope: Yes, absolutely.

Senator Beaudoin: That would not be a bad thing. For the progress of constitutional law, it might be useful to have a good answer to that. That is all I wish to say.

The Chairman: Do you wish to respond, or is that self-evident?

Dr. Toope: I agree, 100 per cent.

Senator Wilson: You finished your presentation by saying that provinces should make non-compliance transparent. If they are not going to do it, then they should say so. I live in a province where it has been made very transparent. The premier said, "I did not sign that stuff at the UN and I have no obligation to do anything about it." Then what? What strategy can be used? I do not think education will do it. On the other hand, senators are drawn from regions across the country. Do you see any particular role for them to weigh in on this by leaning on the provinces? I do not think I can lean on Ontario, but some of the others might be able to do so. Do you have any ideas about the strategies or roles that we could play in this?

Dr. Toope: If a province refuses to implement within its jurisdiction, that is perfectly acceptable within the Canadian constitutional framework. International law understands that and accepts it. The intriguing aspect, of course, is that if Ontario is held not to have complied, for international law purposes, neither has Canada. That is why you have these very uncomfortable sessions at the committee on economic, social and cultural rights, where the policies of provincial governments have been criticized in relation to international obligations. The Canadian government is in a position where it simply must defer to the province and allow it to explain its own position.

Formally speaking, nothing can be done, because international law does not recognize the international legal personality of the province, it only recognizes the personality of the state, namely, Canada. When that is true, it will simply acknowledge Canadian non-compliance. Depending on the political framework within which we are operating, that may or may not create political pressure to comply. It has not created significant pressure within Ontario to comply. It is a relatively popular government that seems able to get re-elected. It may be that that is the reality the Canadian government must face for some time - that if a province's policies are held to be in contravention of international obligations, there is nothing within the current framework that the Canadian government can do. That is not an answer to your strategic question. The only answer could be finding ways to create the kind of political pressure that would call provinces to account when they are not fulfilling international obligations. Many of you are better at answering that question than I. All that can be done is to put the matter on the public agenda, keep it in the news, discuss it and try to put pressure on in that way. There is no other way to do it, unless one launches legal challenges, because one could argue, I suppose - and this is very complex - that the Canadian government, in binding itself, has made some kind of internal commitment that it will do something to try to make the obligation real. Ultimately, however, that will be a losing battle if we want to uphold the principle of division of powers.

Senator Wilson: I raised that point because although I understand the Senate is supposed to represent regions, I do not know if that has ever been exploited. I doubt if it has, in terms of the question I asked. We should look at the education of senators, who might then choose to take some action.

We are aware that the five-year review of the Convention on Economic, Social and Cultural Rights is coming up. The last time it happened, as you are aware, a number of NGOs went to Geneva and spilled the beans about the abolition of the CAP, thereby affecting the single mothers on welfare, in contravention of that covenant. A senior civil servant in Ottawa said, "Well, it is too bad they did not come to us beforehand." I do not know if they ever tried, but it seems to me that many of the NGOs, in view of that treaty, do know what is occurring. That is because they work on the front lines with people on welfare and they begin to see the implications of the violations of economic, social and cultural rights, more than those of us who are in government and are slightly removed. Yet there did not seem to be any conduit or any relationship formed. They did not know how to give input. Do you have any suggestions on how that can be facilitated? I am speaking of the NGO input into this next review, and whether the Senate committee might have some role in that.

Dr. Toope: Yes, it is a major issue. There is a framework, of course, for involving non-governmental organizations and other interested parties before Canada goes to the Human Rights Commission. The chairman knows more about that than I do, having been the Canadian representative. However, there is a process in place where NGOs are invited for prior consultations, which helps to shape the Canadian arguments and policies vis-à-vis the Human Rights Commission. What makes that easier is that we are talking about human rights somewhere else. It is harder to engage NGOs to talk about human rights here; it is more politically charged; and it is particularly politically charged if it is the federal authorities drawing together non-governmental organizations that will criticize actions. It is obviously quite difficult politically.

It seems that it is harder for there to be behind-the-scenes discussions in that context than it is at the Human Rights Commission. That leads me to the conclusion that it might be interesting for a committee such as this to hear, and get on the record, some of the concerns that non-governmental organizations might have in preparation for the writing of these reports.

It may not have a direct relationship, in that you may not be able to dictate what will be in that report. However, you could certainly help people to create a public forum so they could at least raise questions. Given that you are a Senate committee, that would not be seen as governmental action, and therefore it could be politically more comfortable. That could be an interesting role.

Senator Wilson: That would apply also to a review when we come before the UN committee, as opposed to the commission.

Dr. Toope: Exactly. That would apply before a committee sitting under any of the international instruments. If you did that far enough in advance, so there was a public record created, that could be then fed into the process. That would be useful.

Senator Cochrane: Your comments are well taken and I appreciate what you have been saying here this evening. Who are these international treaty-monitoring bodies? What are their roles, and are they accountable to anybody?

Dr. Toope: You are raising an issue that is increasingly one of international public debate. The short answer is that they are typically committees of experts, not government representatives, but people who are chosen because of their expertise in a particular area of human rights. They sit within the framework of a particular international convention. The Human Rights Committee is a rather general committee, sitting within the framework of the International Covenant on Civil and Political Rights. There is a similar committee sitting under the Convention Against Discrimination Against Women. There is one sitting under the Convention on the Rights of the Child, et cetera. Each of these now has a committee process.

In most of those committees, there are two roles. One is sometimes to issue statements about how they believe the treaty should be interpreted. That is controversial. The Committee on Human Rights, for example, has issued some interpretative statements that other states have challenged. That is one role.

The second role is, as Senator Wilson was alluding to, hearing reports from states that are parties to these treaties. Every five years, a state is meant to make a report to the committee on how it is implementing its treaty commitments. The committee hears that, and other information - there is nothing to constrain what the committee hears - and then it may respond. It typically will respond to the state and suggest where compliance might be improved.

There is a final role that very few of these committees have, and that is to hear individual complaints. The Human Rights Committee, for example, under an optional protocol - a special or side agreement to the main treaty - can hear individual complaints, if a state has agreed to that. Canada has done that. There are many famous examples of Canadian cases that have gone to the Human Rights Committee - for example, a case concerning Aboriginal women and their status within the Indian Act after marrying non-status men. The case about the Quebec language legislation was highly politically charged, and went before that committee for interpretation. The committee can decide whether or not, in a specific case, the state has breached its international obligations under the treaty in question. Really, only the Human Rights Committee has that power that a number of states have bequeathed to it.

Now, you raised the question of accountability. These are committees of experts. They are not, in a sense, politically accountable. One can only hope that they will be selected on the basis of their qualities and capacities, rather than on their political connections. That is sometimes true, and unfortunately, it is sometimes not true.

There are questions to be raised about how authoritative the pronouncements of these committees really are. That is why we have to weigh them and analyze them carefully on their persuasiveness, rather than on any abstract notion of authority.

Senator Joyal: I would like to submit to you the reasoning behind why a government, when it ratifies a treaty, could be bound by it.

The power to sign an international treaty is a prerogative of the Crown. Being a prerogative of the Crown, in a rational interpretation, if the Crown, in its freedom, decided to sign a set of principles, one can conclude that it wanted to say something. Perhaps the government wanted to define a set of principles to guide its actions. That being said, I am of the opinion that, in this initiative, and in the exercise of its other prerogatives, and in deciding upon its responsibilities, it has to follow those principles. It cannot contradict itself. That is because it is one of the fundamental principles that bind the Minister of Justice in exercising his or her prerogative on extradition.

The Crown, having signed the international covenant, has bound itself to follow the parameters of that covenant when exercising the ministerial discretion over extradition legislation.

When an international instrument contradicts a statute, or would limit provincial government action, it must go through the classical legislative route. Proposed legislation is supposed to be consistent with the exercise of the prerogative to sign treaties. The government is already bound, in my opinion, by the signature that it places at the bottom of a proposed treaty. Whether the ratification is provincial or federal, this is an aspect that seems not to have been very well investigated, to put it in the broadest terms.

Do you think that this approach makes sense legally, and that it could be argued in a much broader way than what we have seen so far, in terms of cases and critics of government initiatives?

Dr. Toope: That is a very complicated question. First, from an international law perspective, there are actually two stages that I am sure many of you know, but just to be clear on that, the first stage is what is called "signature" and the second is called "ratification." In some states, that is a major distinction.

In the United States, for example, signing is an executive act, but ratifying requires the consent of the Senate. Of course, we do not live in that system. We live in a system where the signature and the ratification are both, as you rightly point out, exercises of the Royal Prerogative. There is no real distinction on that score between signature and ratification.

There is a difference between signing and ratifying from an international law perspective. If you simply sign a convention, you are not bound by its terms. You are only bound not to defeat its objects and purposes. However, if you ratify a treaty, you are bound by it. It is a binding legal commitment. Once Canada goes the extra step to ratify, from an international perspective, there is no question that it is bound.

Senator Joyal, you are absolutely right about the situation internally if there is no implementation. The Baker case and the Spraytech case are moving in the direction that you elaborated. Baker falls within a framework of ministerial discretion rather than legislation; Spraytech delegates power to a municipality. This reaches far into the decision-making processes of domestic law.

The difficulty is that this puts an extraordinarily heavy onus on the government to understand the interrelationship between all of the various international treaty commitments that it makes. I know that Mr. Allmand alluded to this in his testimony. He argued, quite rightly, that there is a presumption that there will be some coherence amongst all of those. However, given the reality of an increasingly large and voluminous international framework, it is difficult to accept that the government may actually understand the interrelationship amongst all of the commitments it is making. That goes to the point that you are exploring.

The government needs help, because there are more of these commitments. The expectations are that there will be some coherence. It is a nice argument. I would like to see an argument that says that in the exercise of the Royal Prerogative, there is a general assumption that you are coherent with the commitments that you have made to yourself. I like that argument. In order for that to be practically relevant, the government will need help in understanding more fully the implications of some of the commitments that it is making.

I am not trying to suggest that the government is entering into these agreements lightly; however, the framework is becoming complex. To relate the trade treaties to all the environment treaties and to the human rights treaties - just to take three areas - is an enormously difficult task.

Senator Joyal: For the benefit of our future work, it would help the members of our committee if we could obtain a list of the international instruments that Canada has signed in the field of human rights.

Senator Finestone: I will send it to you.

Senator Joyal: With that information, we could see which ones have been not only ratified, but also implemented by the provinces and the federal government, in order to have the capacity to distinguish where there might be some problems.

The Chairman: One of the first issues that we addressed was the number of international treaties. Dean Toope has identified some 4,000, if you include all trade, regional and bilateral treaties. The first step was to know how many treaties we are talking about. The second step is to know how the government identifies them. Where are the treaties stored? Can we go to one place? The government has implemented some measures. The Department of Foreign Affairs now has a database for some treaties.

We also asked if the human rights treaties are kept in one place. There is a new document from UNESCO pulling some of the treaties together. We are wrestling with the issue of pulling this information together. We will address that in our report and see whether there is a role for us in that area, and beyond.

Dr. Toope, we know that the laws of the United States support the signing of a treaty by the executive; however any ratification is congressional. We also know that, politically and practically, that is often used as a ploy. "I cannot ratify it because Congress will not allow it." It becomes an internal political dynamic.

Australia has not tampered with the executive authority to sign and ratify agreements, but has said that they will not do so until they have given 15 working days' notice, so that Parliament may have a debate, more or less. I am synthesizing the Australian law unfairly, perhaps. They have less difficulty with their states, although they have admitted that relationship may develop to resemble our federal-provincial situation in the future. They have said that the entire treaty basis that has been put into law, which the government put into place, is helpful because it educates the public. They also have committees that, if they are to sign a treaty, generically look at the subject matter and have a dialogue with those who might be constituents of that treaty. The process is consultative and does not change the executive authority, but it involves the public and Parliament. One may argue whether that is helpful.

Do you think that kind of process would be of merit in Canada? The process would at least be educative, if nothing anything else. Do you think that kind of parliamentary process would encourage internal federal-provincial committees to act more appropriately on implementation in both spheres?

Dr. Toope: Yes, I do. Even if the process did not and could not result in direct involvement in ratification - and I think that would be very complex to try to organize - and even if it did not have the capacity to truly shape provincial decision-making, it could have the capacity to influence the way these international instruments are being imagined and discussed within the Canadian political circle.

There are two distinct advantages. The first is the public advantage. Your point earlier about Canadians assuming that we are much better than we are about implementation is a good one, although you may not have phrased it that way.

The second point is that an integration of the political and bureaucratic discussions would be very helpful. Right now there is an enormous amount of behind-the-scenes work, often in extremely good faith, trying to move agendas forward, but it is not integrated with the political debate. Therefore, you cannot accomplish what you set out to do because there will be someone blocking it or someone for whom it is not a priority.

A public assessment of whether some of these instruments are actually needed, whether they are useful, and what they would contribute to the Canadian domestic scene, and to our perception of ourselves as a rule-abiding state internationally, would be very useful.

I see some formal role as actually helping us to integrate the bureaucratic and political debate and to create some kind of political momentum, although not necessarily in favour of ratification. I want to be clear about that. We might find, on some of these treaties, that there are enormous concerns that ought to be raised. For example, Canada has not ratified the Inter-American Convention on Human Rights, and there are some people who have pressed very hard for that ratification. There are others who, for very sound reasons, want to raise questions about the implications of that convention for Canada. That kind of debate could be helpfully pursued in a parliamentary forum.

Senator Finestone: Seattle was the first example. Quebec City caused many of us in Canada to question the process of how we look at international undertakings, whatever the sphere of activity. Quebec City shook us up with what happened with the population that was very distressed about the issues that were being discussed. Genoa was the next one. We are now deciding where the next meetings will be. There is a tremendous fear that I see as a result of a credibility gap and confidence in the measures and commitments that ministers were undertaking for the executive. There is a lack of understanding by the general population, so the headlines refer to "NGOs" and "civil society."

That gap can be filled by those people who represent civil society and who can be an overarching voice for NGOs and civil society, and that is the elected member of Parliament, who must act as a spokesman and as a legislator to give credibility to, and to make concrete, the undertakings of the executive where the ratification process must take place. Each one of us, whether a senator or a member of Parliament, and regardless of where in the world we live, is facing this serious issue.

When listening to the Chair discuss her Australian experience, it struck me that perhaps we can learn from other countries. If the legislators do not fill that gap, the world will be an even more angry place.

Dr. Toope: Your questions about perceptions of illegitimacy of process and illegitimacy of outcomes are increasingly powerful. Although recent events may change these attitudes substantially, there had been a very strong movement toward questioning a whole series of international processes, which would ultimately include international human rights. I agree with you completely that there needs to be stronger engagement from elected and even appointed public officials around those issues. I will not go into my own hobbyhorse about the role of members of Parliament in democracies, but a gap has emerged. In identifying the gap, it would be worthwhile looking at the experience in Australia, New Zealand and two or three places in Europe that call upon some kind of public process before ratification of treaty commitments.

The Chairman: Professor Toope, not only have you helped us identify some of the solutions, you have helped us identify the problems, which is what we are trying to do in this committee. We are trying to determine where our work would be best placed in the field of human rights and its machinery. I thank you for focusing us on the problems and giving us some leads on where our solutions may lie.

The committee adjourned.

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