Proceedings of the Standing Senate Committee on
Human Rights
Issue 8 - Evidence
OTTAWA, Monday, March 18, 2002
The Standing Senate Committee on Human Rights met this day at 4:35 p.m. to study the status of Canada's adherence to international human rights instruments and on the process whereby Canada enters into, implements and reports on such agreements.
Senator A. Raynell Andreychuk (Chairman) in the Chair.
[English]
The Chairman: Today we will focus on the Inter-American Court of Human Rights. In our first part of the study, we indicated that Canada had not entered into the court because of one particular article, namely, Article 4. In our opinion, the landscape of the world has changed. Canada has changed, and it would be an opportune time to review the situation and to get feedback from Canadians, the department and others as to what Canada's stance should be regarding this particular human rights instrument and Canada's involvement in it.
I would ask our first witness to please proceed.
Ms Alexandra Bugailiskis, Director General, Latin America and Caribbean Bureau, Department of Foreign Affairs and International Trade: Thank you for inviting me here today. I am happy to speak to you on Canada's membership and activities in the Organization of American States and in the hemisphere. My colleagues will follow more directly on the topic of your interest, which is the inter-American human rights system and Canada's position vis-à-vis the American Convention on Human Rights.
The Organization of American States (OAS) is the world's oldest regional organization, formed originally as the International Union of American Republics in 1890. The alliance became known as the Pan-American Union in 1910 and then, in 1948, as the Organization of American States.
Today, the OAS is a modern organization of 34 active member states that respond to hemispheric challenges ranging from strengthening democracy to promoting anti-drug strategies to protection of human rights, sustainable development and regional security.
Canada became a permanent observer to the OAS in 1972 but only joined many years later, in 1990 as its thirty- third member. Our decision to join the OAS was predicated on a number of considerations. The most important of these was a decided trend toward the adoption of democratic practices and principles. A wave of democratization was transforming the region. This began with civil conflicts in Nicaragua and El Salvador, which finally came to a peaceful conclusion in the late 1980s and early 1990s, in part due to the role that Canada played in providing peacekeeping forces through the United Nations. Brazil adopted a new constitution in 1988 and held its first free and fair election shortly thereafter. Chile followed in 1990 with its first free and fair elections.
A new respect for human rights offered improved prospects for closer political and commercial relations with the countries of the region. Economic reforms were being undertaken in Latin America and the beginning of recovery from the lost decade of the 1980s was creating new opportunities for Canadian business. It was also clear that there was a growing need and new space for effective regional cooperation on issues such as the drug trade and the environment, and that our membership in the hemisphere's foremost forum for multilateral discussion and decision making would help to further Canadian interests in these areas. We were also actively lobbied by the United States and some Latin American countries that saw value in having Canada join the OAS, based on our reputation and other multilateral fora, as an active and engaged participant. In other words, it was time for Canada to recognize that it was a nation of the Americas, and today our membership in the OAS has ensured that Canada has come to be seen as a full partner in the hemisphere.
We are now entering a new era in that relationship. Unlike 12 years ago when we first embarked on our strategy of engagement, we are no longer compelled to persuade and convince Canadians and hemispheric colleagues of the sincerity of our intentions. After 12 years of very active and extensive engagement, we are now perceived as an important and attractive partner.
The OAS is a prime mechanism for pursuing our regional foreign policy goals with other member states. Our membership has also helped produce dividends for Canada in bilateral relations with many countries. The hemisphere has been receptive to Canada's people-focussed agenda, particularly our action on drugs, war-affected children, second-generation democratic reforms and land mines. Our active role as host of the OAS general assembly in Windsor in June 2000 and in the resulting OAS high-level mission to Peru, where Canada played a key role in restoring democracy to that country, positioned us as a major player and a leader on a wide arrange of issues in the Americas.
We then assumed leadership of the highest-level political process in the hemisphere as host of the 2001 Summit of the Americas in Quebec City.
The promotion and protection of human rights have been and continue to be a fundamental component of Canada's engagement in the Americas. Canada has used its expertise in this area to provide technical assistance and guidance to the countries of the Americas that are relatively new to democracy and have histories of human rights violations. Canada is engaged in strengthening the inter-American human rights system on a number of levels. This includes reinforcing existing human rights bodies, promoting democracy, the inclusion of civil society — particularly women's groups and indigenous groups — in key hemispheric processes, promoting transparency in governance and working to create a safe and secure environment for all the peoples in the Americas.
We have initiated a number of human rights resolutions at OAS general assemblies, particularly in the area of women's rights. We have pushed to ensure that gender is factored into hemispheric ministerial meetings, and in the last fiscal year Canada committed $139,000 to the Network of National Institutions for the Protection and Promotion of Human Rights in the Americas. Canada has also been at the forefront of negotiations to draft an inter-American convention on the rights of indigenous peoples. We were instrumental in convincing the working group responsible for the negotiations to open up the process so as to include the participation of indigenous peoples, and as recently as last week we provided funding for such participation.
Immediately upon joining the OAS, Canada made democratic institution-building and rule-of-law governance the focal point of its work within the organization. One of the first initiatives Canada undertook upon obtaining its membership was to draft and obtain agreement on a resolution establishing the Unit for the Promotion of Democracy. Initially, the UPD was focused on the monitoring of elections, but over the last 11 years it has increasingly assumed a broader range of activities aimed at improving electoral, legislative and judicial procedures as well as increasing community participation in democratic processes.
The first full-time executive coordinator of the UPD was a Canadian, John Graham, and so was his successor, Ms Elizabeth Spehar.
The UPD has also worked closely with Canada in establishing the FIPA, the inter-parliamentary forum of the Americas, whose first chair was none other than our current Minister of Foreign Affairs, the Honourable Bill Graham. In recognition of the leading role Canada has played in this organization, Senator Hervieux-Payette was elected this past week to assume responsibility as chair of FIPA at their most recent meeting in Mexico.
Through the UPD, Canada has been able to advance its land mines agenda and has provided financial assistance to the UPD for humanitarian de-mining activities. We are intimately involved in mine clearance, victim assistance, stockpile destruction, mine awareness and advocacy activities in the region. Canada has pushed the hemisphere to sign and ratify the Ottawa convention on land mines. Today, 33 states in the Americas have signed the convention and 30 have ratified it, such that the Americas are now poised to become the first mine-free hemisphere.
Canada can also take credit for advancing the democratic yardstick with the adoption of the democratic clause in the declaration of the Summit of the Americas in Quebec City last April. As host of the Summit of the Americas, Canada played a key role in advancing the principle that the establishment and maintenance of democratic institutions is an explicit condition for participation by any country in the Summit of the Americas process. The aim of this clause is to provide a strong incentive to countries in the region not to wander from the path of democracy.
We then took a leading role in drafting the inter-American democratic charter, which was adopted by all OAS member states on that infamous day of September 11 in Lima, Peru. The charter serves to enshrine the democratic principles enunciated at the summit and reinforces existing OAS instruments for the defence of representative democracy in the hemisphere.
Transparency in governance has also been a key priority for Canada. In this vein, Canada signed the inter-American convention against corruption in 1999. We are working closely with other signatories in implementing its provisions and in promoting complete hemispheric adherence and compliance.
Prior to the Windsor general assembly of 2000, civil society had limited involvement in the general assembly process, but the general assembly meeting in Windsor marked a qualitatively different involvement of civil society. Several events were held that provided civil society organizations with the opportunity to voice their opinions on a range of issues, including a formal discussion with ministers and OAS Secretary-General César Gaviria.
At the summit in Quebec City, Canada also took the initiative to invite representatives of trade unions, academics, business associations, NGOs, young people, religious organizations and indigenous groups from across the Americas to participate in a roundtable discussion with Canadian and hemispheric ministers. Canada continues to take this leadership role in ensuring that the voices of voluntary and non-governmental organizations in the Americas are heard and provides funding to numerous segments of society from indigenous groups to women's groups both in Canada and in the rest of the hemisphere to enable them to attend relevant conferences and hold meetings on key hemispheric matters.
In the wake of the events of September 11, security has occupied a pre-eminent place on the agendas of most regional and international organizations. The OAS is no exception. The protection of human rights is clearly not sustainable without a safe and secure environment. The inter-American committee against terrorism was stirred into action as a result of the September tragedy, and it has taken measures to ensure that all member states put effective counterterrorism measures in place. Canada is assisting some of the smaller and less fortunate countries to bring their legislation up to date and to assist in other technical ways.
The OAS was mandated to produce a draft inter-American convention against terrorism even before the events of September 11. However, these events have forced them to step up the completion of this draft. We hope to have it in time for the OAS general assembly in June of this year in Barbados.
Canada has also been actively engaged in advancing work on the hemispheric security review. The aim of this review is to revitalize and strengthen the institutions of hemispheric security. There is now recognition in the hemisphere that security involves more than classic defence and military issues. In addition to resolution of disputes and territorial claims, hemispheric security issues include much of the human security agenda; this includes counter-terrorism, narco- trafficking, disaster preparedness and relief, small arms and light weapons, land mines, human rights and confidence and security-building measures.
Canada has taken the most proactive approach to the review, having been the only country to table a concrete vision of a reformed inter-American security framework and the first country to submit its response to a questionnaire soliciting input from member state capitals.
In summary, it is evident through the activities in which Canada is engaged in the hemisphere that Canada's commitment to human rights in the hemisphere goes far beyond treaties and conventions. I have presented but a snapshot of Canada's engagement in promoting and protecting human rights in the hemisphere. However, I can assure honourable senators that we are active in fostering democratic values and in ensuring that all peoples of the Americas have equal access to the processes that govern them and to the fundament freedoms that are their birthright.
[Translation]
Mr. John Holmes, Director, United Nations, Criminal and Treaty Law Division, Department of Foreign Affairs and International Trade: Honourable Senators, I thank you for the opportunity to speak today on the subject of the Inter- American Human Rights System, and in particular the American Convention on Human Rights. What I have to say this afternoon will focus upon the international foreign policy considerations at play for accession to the convention. I would like to start with a little background about the Inter-American Human Rights system, in particular Canada's involvement in, and access to, its institutions — the commission and the court.
The formal Inter-American Human Rights system consists of two bodies, the Inter-American Commission on Human Rights (Commission) and the Inter-American Court of Human Rights (Court), as well as several legal instruments, including the American Convention on Human Rights.
[English]
The Inter-American Commission on Human Rights was created in 1959. Its principle objective is to promote the observance and protection of human rights and to serve as a consultative organ of the OAS on these matters. To this end, the commission performs several functions, including observing the general human rights situations in member states and receiving, analyzing and investigating petitions received from individuals alleging violations of human rights by OAS member states.
How the commission deals with these petitions depends on whether the state is a party to the convention. For state parties to the convention, the commission measures alleged violations of human rights as defined by the convention. For non-state parties, such as Canada, the commission uses the American Declaration on the Rights and Duties of Man as the basis for its opinions. Therefore, even as a non-state party to the convention, Canada is still subject to the jurisdiction of the commission.
Created by the convention, the seven-member Inter-American Court of Human Rights was installed in San José, Costa Rica, in 1979. The court serves both an advisory and adjudicative role. Any OAS member state may consult the court in its advisory capacity regarding interpretation of the convention or other inter-American human rights instruments.
In its adjudicative capacity, only the commission or state parties can submit cases to the court. Individuals may not bring cases before the court, although there is currently a proposal for an optional protocol to the convention that would permit such an action.
In order for a case against a state party to be brought before the court, that state party must be a party to the convention and recognize the jurisdiction of the court. Not all state parties to the convention have recognized the jurisdiction of the court.
The convention was negotiated in the 1960s and came into force in 1978. Of the 34 active OAS member states, 23 are party to the convention, while 11 members are not, including the United States.
There is one historical reality that must be appreciated in any consideration of Canada's position on the American convention; that is, Canada, like the United States and most of the English-speaking states of the Caribbean, did not belong to the OAS 30 years ago, when the convention was negotiated. As we were not able to participate in the process of elaborating this convention, we did not have the opportunity to communicate our concerns and have them taken into consideration as part of the normal give and take of such negotiations. That is a simple fact, but one that still bears directly on our position today, for it cannot be said that Canada is averse to commitment when it comes to human rights instruments. We are a party to many other such instruments, including all of the major human rights instruments of the UN system.
In order to adhere to the convention, it is likely that a large number of reservations and statements of understanding would be required. We understand that this number may be growing following a recent review of the convention by some provinces. This would be a departure from Canada's position that reservations to human rights treaties should be few in number and limited in scope, given that the rights protected in such treaties are intended to be universal and overarching.
By way of comparison, honourable senators may know that we have reservations to only one of the six major human rights treaties of the United Nations.
Canada is active in efforts to reduce the number of reservations to international human rights instruments, both at the time of negotiations and, subsequently, through pressure to withdraw reservations. Such actions may take the form of language in resolutions at the United Nations General Assembly or, as our distinguished chairman will know, at the Commission on Human Rights or of bilateral démarches.
Adherence to the American convention, with the large number of reservations and understandings, may well reduce Canada's credibility in such activities and undermine our ability to successfully urge other states to limit reservations to human rights treaties.
Some may argue that Canada's adherence to the convention may encourage other OAS members to become parties to the treaty and, in this sense, may assist in the promotion of human rights abroad. In our view, the focus should be on how well human rights standards are implemented and not whether a state has ratified a particular treaty.
Some OAS partners have urged Canada to adhere to the convention and not to focus on compliance or implementation. We do not accept this approach. Canada expects that states that ratify international instruments will comply with its provisions and be in a position to implement the obligations undertaken when adhering. This is what the Vienna Convention on the Law of Treaties requires. We do not believe it is legally or politically appropriate for a state to adhere to an instrument without first taking the steps necessary to be able to comply with its provisions.
Canada could not proceed to ratify or accede to an international instrument without first determining that the resulting obligations were capable of implementation in all jurisdictions.
It has been argued that Canada cannot be a full participant in the inter-American human rights system unless it is a party to the convention. While we are aware of the benefits of broad adherence of international conventions, it is important not to lose sight of Canada's substantial activities protecting and promoting human rights, both at home and in the hemisphere. On the latter subject, Canada is very active, as Ms Bugailiskis has explained, from the establishment of the Unit for the Promotion of Democracy to providing millions of dollars in development assistance every year for the promotion and protection of human rights.
The fact that Canada is not a party to the convention in no way undermines our commitment to its fundamental principles or to the protection of human rights and fundamental freedoms in general.
Canada is committed to strengthening the inter-American human rights system through a variety of means, including, where possible, adherence to its instruments. Adherence to international instruments is indisputably important; however, it is important to recognize that this is but one element of strengthening the inter-American human rights system. Support for its institutions, promotion and protection of human rights, and capacity building in the region are all important means of achieving universal protection of the human rights of the peoples of the Americas and are all areas in which Canada is actively engaged.
I will be happy to respond to any questions.
Ms Elisabeth Eid, Acting Director, Human Rights Law Section, Department of Justice: Honourable senators, I am pleased to be with you today. I will also speak about the American Convention on Human Rights, as well as some of the concerns that have been raised by various jurisdictions during the consultation process.
[Translation]
I will first provide you with some background information regarding the federal-provincial-territorial consultations that have taken place on the Convention and some of the concerns that have been raised respecting Canadian adherence to the treaty. I will then put forward a few considerations that you may want to take into account in your deliberations on this issue.
[English]
After Canada became a member of the Organization of American States in 1990, federal officials began the work of determining what recommendations should be put forward with respect to adherence. This work entails looking at every provision of the convention and examining each in light of domestic legislation policies, programs and practices to determine whether there are inconsistencies between what we do domestically and what the treaty obligation requires.
Where inconsistencies are found, there are three options. A state can decide to enter a reservation, which means it will not be bound by a particular provision and would like an inconsistent domestic practice to continue. The second is to enter a statement of understanding. That is where Canada asserts its interpretation of a provision to ensure consistency with domestic law. The third is to change domestic law to ensure consistency with the treaty.
This review was conducted at the federal level over six years and continued after that. Similarly, at the provincial level, the same review is undertaken by each jurisdiction. They will consult internally, look at the treaty and consult their legal advisors to determine to what extent they feel they are consistent with the treaty. This was done through the federal-provincial-territorial Continuing Committee of Officials on Human Rights.
As a result of this review, which took place over numerous years, several concerns were raised, not just one or two. There were a number of substantial concerns that both the provinces and the federal government thought would require numerous statements of understanding and reservations.
These concerns relate to the fact that the treaty was negotiated and drafted without Canadian participation. We were not able to influence the actual provisions of the treaty as we have, for example, in the UN system. If you read the treaty, you will note that some of the language is foreign to a Canadian understanding of law. It does reflect the legal traditions of the vast members of the OAS, which come from a predominantly civil law tradition and have different legal systems.
Officials continue to work on trying to reduce the number of problems and concerns and the number of reservations and statements of understanding because we are concerned about creating a precedent of having a treaty that would have a large number of reservations and statements of understanding. That would be a first for Canada and the human rights area, and is something you should consider.
I will mention Article 4 of the American Convention on Human Rights, as it is an important problem. It states:
1. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.
The treaty is saying that, generally, states are obligated to protect life from the moment of conception. In Canada, we do not have legislation regulating abortion. As well, the Supreme Court of Canada has said that the fetus does not have legal personality.
We could enter a reservation to that article. This would state that Canada would not be obliged under the convention to protect the right to life from the moment of conception. That, in itself, may raise the abortion issue domestically.
When you are examining the issue of whether or not Canada should adhere to the treaty, you might want to keep a few things in mind. One is that the treaty definitely has an impact on matters under provincial jurisdiction. Many human rights obligations have a specific impact on the provinces. Therefore, the provinces definitely need to be consulted and support Canadian adherence to the convention, as it would be difficult for Canada to proceed to ratify or accede without significant support from provincial and territorial governments.
We continue to discuss problems respecting the treaty with the provinces. We are open to other views, but ultimately each province and territory, in consultation with its legal officers, will determine whether it will support Canada's adherence to the treaty.
You may also want to consider what are the real advantages with respect to Canadian adherence. Do these advantages outweigh the difficulties we have been having over the years in getting consensus on adherence to the treaty?
Non-ratification of the treaty does not impede our ability to participate in the system, and we are actively participating in the system in promoting human rights. There would be some sensitive domestic issues that may arise should we proceed to adherence.
The treaty adherence will not significantly impact on Canadians and their human rights protections since Canadians have protection under the charter, as well as federal and provincial human rights legislation.
Finally, you might want to consider the fact that adherence to the convention will undoubtedly raise the issue of whether Canada should accept the inter-American court's jurisdiction to hear cases against Canada. Canada already is subject to the jurisdiction of the commission, which hears individual complaints against Canada, the notable difference being that the court will be able to issue binding decisions on Canada, including enforceable actual awards for damages.
This differs from other human rights complaint mechanisms, particularly in the UN system, where the bodies issue non-binding views. They are considered views or recommendations but not having the force of law.
Those are my comments.
[Translation]
Thank you again for the opportunity to speak to you today. We are following with interest the work of your committee and would be pleased to provide you with any assistance, to the extent possible, as you continue your deliberations on international human rights issues.
[English]
Senator Beaudoin: You say we have initiated a number of human rights resolutions in the OAS general assemblies, particularly in the area of women's rights. I should like to know more about that.
We are one of the countries to have enshrined in the heart of the Constitution the full equality of men and women with section 28 of the Charter of Rights and Freedoms.
What do we do at the international level in that particular field?
Ms Bugailiskis: I will speak more on the activity level, on the substantive level of getting women out to participate in the OAS in its various agencies and in its deliberations.
We have been very successful — almost embarrassing the OAS on occasion — in making sure that women are much more represented at their meetings and making an effort to ensure that they come out. There are women's groups in the various fora that are concerned not only with gender issues but also with indigenous issues and the environment. Canada has played an important role in this area, leading by example and also by our pocketbooks in providing some funding to women's groups that do not have the finances to do the work or to be able to come to the meetings. We have been able to assist them by providing some of the travel costs.
[Translation]
Senator Beaudoin: My question is for Ms Elisabeth Eid and Mr. Holmes. I am fascinated by the question of implementing treaties but I am not very happy about the way we implement our treaties here in Canada. Perhaps we have not found the best or most appropriate formula, but I was very interested in your statement that this subject is being discussed at the federal-provincial-territorial level.
In the case of provincial and federal acts, one seldom sees legislation enacted in order to implement treaties. That shocks me and I am not able to understand why this is the case. The Privy Council clearly said in 1937 that a treaty had to be implemented in order to become the law of the land. What would you propose in this regard? I think we have to move ahead, we have to reinvent our system.
Ms Eid: Our situation is difficult because we have a dualistic system. Our system is not a unitary one with respect to the way we look at international law and human rights. As well, we live in a federal system. As a result, implementing our obligations is a greater challenge for us than it may be for other countries. We do have our Canadian Charter, however. For example, if a treaty contains a provision designed to protect freedom of expression, we already have article 2(b) of the Charter which protects the same right.
It is clear that in the past, when we were ratifying a treaty, we would look at our Charter and our own legislation, and if we saw that protection was already provided within a Canadian act, we would decide not to include yet again another obligation at the international level. I have to admit that there is still work to accomplish in this area. We wish to avoid duplicating obligations. We do not wish to have freedom of expression protected in our Charter and also have the same obligation flowing from a treaty.
Senator Beaudoin: Yes, but we are discussing this problem once again, and we hear the Minister of Justice, for whom I have a great deal of respect, tell us: ``We have the Charter of Rights.'' It is true that we have an excellent Charter of Rights, but that is not enough. We have to pass legislation to bring a treaty into force — it seems to me that the Privy Council was very clear in what it said in 1937 — otherwise the national legislation is not changed.
Ms Eid: The Privy Council said that it must be incorporated into the country's legislation in order to have force of law. That means it is necessary to legislate, it is necessary to have a measure. That does not mean to say that treaties do not have any influence. They have a great influence. Recently the Supreme Court said that we must not overlook our treaties, particularly those relating to human rights, when we interpret our own laws. Thus treaties, and particularly treaties on human rights, have a significant impact on our domestic laws.
[English]
Mr. Holmes: I wish to add a comment from the other perspective. The Vienna Convention on the Law of Treaties, for example, or other mechanisms that exist internationally do not require a country to adopt specific implementing legislation. What they are concerned about, as I said in my remarks, is compliance. The process is as Ms Eid has described. In the human rights field where we have an existing body of law, federally and provincially, we would take a convention and analyze it closely to determine whether or not there are gaps that exist in our domestic legislation compared to what the obligations are in the convention. The most recent one I was involved with was the Convention on the Rights of the Child. We analyzed that convention.
Senator Beaudoin: We know a bit about that.
Mr. Holmes: The analysis we made was that we were fully in compliance with the convention and that specific domestic legislation was not required, except for a reservation in a statement.
Senator Beaudoin: But we are a dualistic society. Our status in Canada is not monistic.
[Translation]
It is not monistic; it is dualistic. And if it is dualistic, then it is necessary to pass legislation.
[English]
Do you not think so?
Mr. Holmes: In our view, it depends on the instrument. For example, although this is not technically human rights, when we looked at the Rome Statute of the International Criminal Court we realized that we needed changes to legislation in a variety of areas, primarily in the criminal law field. This was all done at the federal level, not the provincial level. When we decided that the changes were fairly substantial, we determined that we should not do an omnibus legislation — I know that is a sensitive word — but put forward a separate, comprehensive piece of legislation and then there would be consequential amendments to a number of acts. In that regard, we analyzed and said, ``We need substantial changes to legislation,'' and we enacted that before we ratified the statutes. With other instruments, we do our analysis and the government decides that changes are not necessary.
The Chairman: What troubles me in a dualist democracy is when we make an international obligation. While I think there are fine minds in the government who decide that we have complete compliance, surely the rights are the rights of the individual citizens when we get to human rights. If someone does not agree with the government, what is the recourse? That is the dilemma when there is no enacting legislation, whether the recourse is for a province or for an individual.
You may say that you comply today. However, another government may then come in and says that it does not. That is the dilemma of the way we have been doing it. It seems to me that it is less than desirable in the system. I recall Dean Leuprecht, who appeared before us, saying that once there is enabling legislation, then we know the machinery and anyone aggrieved knows how to go about obtaining their rights. By not having the enabling legislation, we may be depriving citizens of their right to pursue a human right that is for their benefit — not for the government's benefit and not for a state's benefit.
This is the conundrum we are in. We have certainly faced that. I hate to bring up the example of the Youth Justice Act because it is a touchy subject with me, but that is where the department, in all honesty and sincerity, felt that it was complying with the Convention on the Rights of the Child. They said we were in conformity. However, fine minds across Canada told us that it was not, and the courts may ultimately tell us whether the Youth Justice Act complies with the convention or not. Surely that is an arcane way of approaching justice and human rights.
If you have any response to make on that, please do. That is the dilemma that we saw in the analysis that we are doing. As we were studying it in this committee, the youth justice example was being graphically pointed out to us.
Mr. Holmes: I understand what you are saying, but perhaps it would be tidier if we adopted that kind of approach. Substantively, I am not sure what the difference would be. As Ms Eid indicated in her response, if a citizen is concerned about his or her freedom of expression, one can find that information in the International Covenant on Civil and Political Rights, in the American Convention on Human Rights and in several other instruments, including the Charter of Rights and Freedoms.
If you are concerned about youth criminal justice, we have proposed new laws that touch on that area. Then, you have the UN convention and other international standards that you can compare them to. If there are concerns, they can be brought either to the courts or, eventually, under some of the instruments, to international bodies.
I agree that it would be neater if it were in one package, especially when dealing with instruments that have provisions that overlap and sometimes duplicate, such as the International Convention on the Rights of the Child, which repeats a number of provisions of the two covenants. If you have implementing legislation under the covenants, each of them — two sets — and then you have new implementing legislation under the International Convention on the Rights of the Child, as Ms Eid says, you will have three or four different acts that enact the same provision. That can sometimes cause problems.
The Chairman: Not to belabour this point, but there is a difference between ``conventions,'' such as the inter- American one that we are studying, which predates our involvement, and the Convention on the Rights of the Child. The point was made in the Baker case that Canada should not declare to the world that it intends to be bound by this instrument but not have it part of our Canadian law and leave it instead to some future court to determine whether pieces of legislation in Canada comply. There is a disconnect.
Perhaps it was all right in a different time. Now, however, the conventions are becoming more specific and implementing legislation is being added, such as the Rome Treaty. Surely those that demand enabling legislation have a better approach to it than the process of non-conformity that we have had.
Is it time to rethink our approach? Perhaps there is more of a legal point to this issue, but we probably want to leave that, for now.
Senator Kinsella: I am intrigued by this discussion. My own reflection is that we must be mindful all the time that all the different rights we are dealing with are not delivered only through a model of enforcement that allows periphery justiciability. That works great for the civil and political rights, and implementing legislation, whether necessary, is straightforward. Many of the other rights, however, are requiring political action for their fulfilment — action by legislatures, by common councils or by Parliament — because they are programmatic in nature. I hesitate to leave an important topic for reflection, but I want to ask a specific number of questions on the American Convention on Human Rights.
We have learned in this committee, as we began our work, of the important role that the Continuing Committee of Officials on Human Rights in Canada plays, which flows from the labour conventions case. This is why prime ministers write to premiers to ask whether there is concurrence among the provinces before Canada's ratification of human rights treaties and other instruments that affect provincial and federal jurisdiction.
You have indicated, Ms Eid, that this process has been in the works for 12 years. They have been studying this convention and whether Canada should ratify it. You also mentioned that a list of concerns has now been identified and is on the table. Could we obtain a detailed list of those concerns? It would be most helpful to have the article-by- article analysis: each jurisdiction that is raising an issue; what the issue is; and the name of the jurisdiction, which is not terribly important although it might be helpful. If that information is provided to this committee, it would be quite instructive. In that way, we would know exactly what the officials have been doing.
Perhaps, after 12 years, it is time for the politicians to exercise judgment. We would be well-briefed if we could have a list of the concerns that have been identified and related to the specific articles of the convention.
The Chairman: Perhaps we could find out whether that is available. Is that available to us?
Senator Kinsella: The corollary of that is that, as good public officials, I know that you prepare options for your ministers. For example, if we were to look at Article 4, you would note the relevant problems and a draft reservation, or the type of reservation that might be entered for that particular article.
Ms Eid: There was an active period of six years, so it is not as though it has been 12 years. There was a definite full- hearted attempt to reach consensus on the issue for a good six years.
In terms of the article-by-article analysis, the deliberations of the federal-provincial committee are confidential in the sense that everyone needs to feel free to raise concerns without risk of those concerns being aired publicly. We have received the information from the provinces in confidence, and I would need to return to the provinces to obtain consent to release that kind of detailed information.
Some information has been made public in terms of several of the concerns, but that kind of detailed information would need consent from the provinces and the territories.
The options, similarly I cannot undertake today, but I could undertake to consult with colleagues, because that would be advice to ministers.
Senator Kinsella: The argument that Mr. Holmes advanced seems to suggest that we should not be rushed into ratifying this convention if we are doing so to be more intricately involved in the human rights activities of the OAS. I understand that Canada, since former Prime Minister Mulroney took the decision for Canada to become a member of the OAS back in 1990, has become more and more active.
At the parliamentary levels, a fair amount of inter-parliamentary exchange has taken place beyond the hemispheric parliamentary diplomacy. There are exchanges on the legislator-to-legislator level in a number of organizations where the issue of human rights also arises. However, is it not true that Article 53 of the convention states that when you are electing judges to the court you can only vote if you are an adherent to the convention? Are there not a number of specific areas in which you cannot participate if you are not a party to the convention?
Mr. Holmes: In response to the last part of your question, yes, although a non-state party can, through a state party, field a judge, for example, for the court. It is practically difficult to do because you cannot orchestrate the campaign as a non-state party, if you will. That is a practical disadvantage.
The point that you have made about voting is correct. Only state parties can vote for the court.
There may be a few other disadvantages. Certainly these are things that we do consider.
I did not want to give the sense from my comments that we have completely closed the door on the idea. That is why we are here having a dialogue. However, we have had a number of arguments put to us by non-governmental organizations that are partners in the OAS system. We felt that it was important to address some of those concerns and also to raise some issues that are not so readily apparent from our work.
We have had some states and NGOs say that they are not concerned about the number of reservations and statements DFAIT would make. They want us to do that because they want us to be party to the convention. However, as I tried to explain, there is a bigger context here — and I tried to explain some of the work we are doing internationally not to make numerous interventions and comments.
Senator Kinsella: On that particular point, are there not a number of distinctions to be drawn vis-à-vis a situation like the ratification in Canada of the two international covenants that took a period from 1966 to 1976 to develop. During part of that period, there was the federal-provincial consultation process engagement in Canada. We did not enter any reservations at that time, as you know, but we could have done so. We were at the United Nations from its founding in 1945 and made significant contributions to the development of various instruments and machinery there.
I appreciate the argument that the American convention is written in very old language with very old ideas. However, would that not be the very reason people would be more understanding of Canada having all kinds of reservation, whereas they would not be understanding if we had reservations on instruments in which we prepared in the drafting?
Mr. Holmes: Some countries would understand. I suspect that many of our partners in the OAS system might be quite sympathetic and understanding as to why we would have had to do that. I am not sure the countries with which we deal internationally would be as understanding. Those countries have made rather broad reservations of the scope of a particular convention, to the point where one might question their political and legal willingness to respect the provisions. Here I am thinking of, for example, the convention against discrimination of women.
I am not sure that they would understand. I am quite confident that they would use our number of reservations under the ACHR as a counterargument to our urging them not to make such broad reservations.
Senator Kinsella: It is my understanding that a case has been brought by the president of the Human Rights Commission of Chile, or the former president, citing in part Article 23 and some others. The criticism is of the Chilean constitution and an amendment relative to life-appointed senators that was made prior to Pinochet stepping down or being forced out.
Is that one of the concerns of officials? I have no concern at all.
Are you familiar with that case? Do you know whether it has been declared admissible?
Ms Eid: I do not know.
Senator Kinsella: Could you get someone to look into that? It was filed a few years ago. As of this time last year, they were waiting for a decision as to whether the court would declare it admissible.
Mr. Holmes: We will check.
Senator Poy: I am interested in the enforcement of the inter-American court's decisions. They are supposed to be binding. I should like to know how they are carried out. Can you give us some examples, some specific cases?
Ms Eid: I am not sure that I can answer your question fully.
However, in the UN system, for example, if we have a case that goes before the human rights committee and that committee finds Canada in violation of a treaty, they will issue what they call ``views.'' These views are the opinion of this body, which might say, ``In our view, Canada is in violation of its obligation and should take measures to bring themselves into compliance.''
Under the convention, it is envisioned that the court could issue binding judgments. If a case comes forward and there is a request for reparations in a set amount of dollars, the court could then say, ``Canada, you must pay X amount of dollars because you have been found in violation.''
There is also a provision saying that we must enable the judgment to be executed in Canada. That would mean that the affected individual could bring, through domestic court in Canada, the decision from the inter-American court and that the government, federal or provincial, must pay. A person would able to have that enforced domestically.
Senator Poy: How is it enforced? Canada does not adhere to the convention, right? There must be countries that do. Can you give me examples of countries that actually have had to carry out the decision of the court?
Ms Eid: I would have to get back to you because I have not examined the precise issue of how other countries have dealt with damage awards.
Senator Poy: All the country must do is say ``too bad.'' Who will enforce it? That was my question.
Mr. Holmes: Unfortunately, I do not have much to add. We could do a bit of research. There is a fair bit of literature on this.
Our understanding is that some countries do comply with the decisions. All are obligated to do so. Some, however, do not comply; they simply ignore the decision, and the individual is left without further recourse.
In terms of the article that Ms Eid referenced, there are mechanisms that exist domestically. This is an area of private international law where foreign court awards can be recognized in certain jurisdictions. This is something that would have to be examined in the Canadian context as well.
Some countries may have a system that gives the inter-American court decisions the authority of a foreign court judgment. An individual could take that court decision and go to a domestic court in the country concerned and seek to have that enforced against the government or the entity responsible.
We can get back to you with some examples.
Senator Poy: Please do. It would be interesting to see how the compliance is carried out.
The Chairman: Surely, there must be some local domestic law either in a generic or a specific form that would recognize this judgment. In Canada, it would not happen automatically, nor I presume elsewhere. Is that what you will look at?
Mr. Holmes: We will try to look at the practice. Again, as I indicated in my comments, some of the countries with which we have dealt on this issue have given us a rather ``do not worry about compliance, just go ahead and ratify'' approach. They are interested in our ratifying. According to them, we should worry about compliance later on.
Have they implemented all their obligations as required? It certainly did not sound like it from our interlocutors.
The Chairman: That would be helpful for us.
Are you saying that if we do not sign the convention there is some way that we could obligate ourselves to submitting to the court? Would there be any way, on either a case-by-case basis or by some other convention, that we could make ourselves subject to the court without signing of the convention?
Mr. Holmes: Not subject to the court.
The Chairman: Subject to a particular case?
Mr. Holmes: We have access to advisory decisions or judgments of the court. We could ask the court for an advisory opinion on a matter, but it would not be binding. In terms of individual cases, no, my understanding is that we have to ratify the convention first.
The Chairman: Have we used the advisory mechanism, and what type of case might we simply want advice on?
Mr. Holmes: We have not used the advisory capacity. I believe there have been advisory opinions before, but I am not familiar with what those were in relation to.
Ms Eid: Usually, we would seek advice on the interpretation and provision of the convention. That is how states have used it to determine how a particular provision should be interpreted.
We are already subject to the jurisdiction of the commission, so individuals currently in Canada can petition the commission. We have about 20 cases before them.
We must be frank. We have had concerns about the commission. For example, we have not had a decision in 10 years on any of the cases. This is a resource issue, but it is also an issue of credibility of the commission. They have also issued what we call precautionary measures requests, particularly in immigration where Canada must request that we stay the removal pending consideration of the petition. This puts officials, particularly in immigration, in a difficult position when we have not had decisions rendered. It is difficult and awkward, but our experience with the commission is something to consider if we are also considering adherence to the court.
[Translation]
Senator Ferretti Barth: If I understand you correctly, you are not in favour of Canada's ratifying the convention. You prefer that Canada remain as it is, because it has a wider field of action. In your presentations you have referred to the outstanding work Canada is doing in the hemisphere. Would it be more to our advantage to remain as we are rather than ratifying the American convention? Canada should not have to follow anyone. We have our own way of judging things, the Canadian way and not the American way.
Furthermore, from the text, it would appear that the convention does not recognize the principle of action in favour of disadvantaged groups. If we sign the convention, what will happen in this particular area? Unless I am mistaken, I would deduce from your presentations that Canada should not sign the convention, because we would no longer have the power to intervene in fields of activity which the Americans do not consider of sufficient importance. We must start thinking like Canadians and not like Americans.
And by the way, we should perhaps consider reformulating our presentations and our questions. I think that we should use simpler language, language which is easier to understand. Of course, we are all professors around this table. On the other hand, however, it may be difficult for people listening to us at home to understand what we are talking about.
I will ask you once again whether you really think that Canada should not ratify this convention?
Ms Bugailiskis: We are not against the convention. It is not our work or our role to be either for or against it. The purpose was simply to put forward the opinion of the departments and the people looking at the question. Our role is to present the problems and challenges which would have to be dealt with if the convention is to be signed. The role of Canada is to reflect Canada and not the United States. We are proud of our reputation. Our reputation, as my colleagues have said, is to sign conventions with full authority.
[English]
We do not want reservations, and we do not want to sign on, as our colleagues in the South have done occasionally in the UN system, to international conventions that we do not respect. I am in a difficult situation here. In representing Canada's relations in the hemisphere, I should like very much to clear the deck and have us as members of this convention, but I respect the legal difficulties. We have both the civil and common laws process, and we need to get the provinces and the territories on side.
Yes, we encounter some criticism by the colleagues within the OAS. There are those who ask for us to join and always ask why we are not there. Considering the role that we played in the last 12 years, I am proud and can raise my head very high. I ask them to compare their system to ours any chance I get.
With regard to leading the way for other countries, again, much of it is providing the assistance and the guidance, the aid programs that we have done in the various regions, providing technical assistance, even the basics of travel. Being able to come to discussions such as this is very important in building that basis. I will continue to chide my colleagues as well.
[Translation]
Senator Ferretti Barth: Is Canada not being pressured to sign this Convention by other nations which have become party to this convention, including the Americans? What are the interests of our country? There are 10 countries out of 23 which have not signed the convention.
Ms Bugailiskis: There is no pressure from the Americans because they have not yet ratified the convention.
[English]
There is no pressure in that regard. Yes, from certain other states, but again I think it is more in passing and wondering why we have not. However, they realize we are actively engaged in all other aspects.
Senator Kinsella: It seems to me that the importance of international regional systems must be examined in terms along what Senator Ferretti Barth was saying, in terms of our own Canadian self-interest. My hypothesis is that good human rights is good business. We are participants, new entrants, almost, in the hemisphere, with FTA and with NAFTA, and with the extension of that to other countries in South America. These are just the first steps, it seems to me. Therefore, I am very concerned that we would have a very strong, hemispheric regional international human rights system.
My own judgment on the African regional system is that it has failed. We can learn a great deal from the European system, on the other hand, from the time of the Rome Treaty, both with their civil and political rights system, and particularly the European social charter. That system, although with its problem, in many ways has been quite successful.
Within the context of the policy that we would be developing as we look to whether we ratify the American convention as a means to greater participation in the American system, is it also part of a strategy to be the full player in redefining a human rights hemispheric system that will be good economically for us as it is for them in the globalized world of today?
This is not an academic exercise; it is a practical exercise.
Mr. Holmes: I can only comment on the practical, the side codification side. We are engaged. As Ms Bugailiskis has indicated, we are playing a fairly active role in the development of the inter-American declaration on indigenous rights, and from time to time there are new instruments being discussed that are broader than just human rights. Ms Bugailiskis mentioned the inter-American convention on terrorism; we have been involved in firearms and other instruments.
We are aware that it is difficult to go back in time and fix certain instruments, such as the American convention, but that should not stop us from playing the active role, as Ms Bugailiskis described, that we want to play in the hemisphere. Certainly in terms of codification, we are active and we are doing our best to ensure that we are comfortable with the approaches that are taken.
The Chairman: I want to put on the record that this committee is attempting to explore all avenues as to how we further a universal concept of human rights. That means that we look at the universal declaration and all the machinery at the United Nations, but we also know there are supporting pieces of machinery. Ultimately, we hope they are all going in the same direction. Hence, we should be looking at the convention in this hemisphere with a view to whether we should be complying with it or whether we should be engaging in a broader debate, as Senator Kinsella has said. We want to think outside the box and look at the whole issue of how we further adherence to human rights while utilizing a hemispheric mechanism.
Having said that, I hope that both departments will think about where we come out better as Canadians. Do we come out better if we sign a convention with many reservations, which may create problems in our other pursuits of having others sign onto other instruments, or do we come out better by not signing at all and being purist in that position? We have this campaign to get other people to ratify and therefore we do not want to put reservations, but then what we are saying to the world is that we can pick and choose whether to sign at all. They have pointed to Canada and said, ``Look, we are not signing onto this convention.'' Canada has never signed the convention of the OAS.
We must look at both sides of the coin. I do not think this committee has come to any conclusion. We are just starting. We would like information on what I call the pluses and minuses of the machinery we have and the kind of thinking that may be going into the whole process. There may be new initiatives that we do not know about. Perhaps you can give us more information on how we approach this whole issue at a later date. There are political, economic and human rights issues that are all being weighed, and we want to be certain that we are aware of all the dynamics as they play out.
I wish to thank you for coming. We are looking forward to the information about the reservations. I am looking for as much as you can give us. Ideally, we would like to know beyond article 4 — which seems to be in the public domain more than the others — just what are the reservations that are coming through governmental systems. To the extent that you can disclose it fully, we would appreciate that. If not, what is the next best thing? It may be a generic recitation or something, but we would appreciate having some of that information. Part of our dilemma is getting to that transparency in order to have a full and proper debate so that we know all sides of the issue. We thank you for starting our debate here this evening.
Our next witness is Mr. Timothy Ross Wilson. Mr. Wilson has been identified to us, not because of his previous work in the Senate or his new work in the Supreme Court, but through his academic career. He authored a paper in the process of some academic pursuit, which is a study on the inter-American court. We thought that information would be helpful to the committee. Some of that information has been disseminated to committee members. We appreciate the material we have been given. We are trying to find as many people as possible who have looked at the court, and I must admit there are not as many as we thought there would be. We appreciate that you are coming forward in your personal capacity to talk about your work when you were in the academic sphere.
Mr. Timothy Ross Wilson: Honourable senators, I appreciate the invitation to appear. I submitted my paper because when the clerk and I were speaking he mentioned that you were interested in the inter-American system. I told him I had done some work in that area. It is not up to date, but I can certainly submit it to the committee.
I am honoured to be here before you, Madam Chair. I know you are eminently qualified in the area of human rights as a former provincial court judge, a founder of Regina's family court and Canada's permanent representative to the United Nations Human Rights Commission from 1988 to 1993.
I also congratulate the committee on its creation. I believe it has been operating for approximately one year now, and its first substantive report that was released in December 2001 promises to keep implementing Canada's human rights obligations. In that report, it is noted that six major human rights treaties require periodic compliance reports, and that only four of the six have individual complaint mechanisms that are optional for states parties. It also states that Canada participates in the individual complaints processes under the International Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The committee noted that the views and decisions of these treaty-monitoring bodies are not binding on Canada, either under international or domestic law.
I understand that one of the issues the committee is currently examining is Canada's possible accession to the American Convention on Human Rights, and of course the committee has heard from previous witnesses and I learned from them as well.
You commented in your report that Canada has now been a member of the OAS for over a decade but has not signed or ratified this convention. Apparently, witnesses before you were divided as to whether ratification would be a wise move on Canada's part. The ideal of full participation in the OAS human rights system is counterbalanced by concerns about some the convention's provisions. We heard about one. Just reading through it on the weekend I saw many more, which I will not burden you with.
You have earmarked this as an issue for further study. That is what we are doing today. If it is of any assistance to you, I propose to share with you my understanding of how the American Convention on Human Rights functions day to day.
I should state at the outset that, unlike the two other international instruments that allow Canadians to make human rights complaints, the American convention provides for a mechanism that would be binding on Canada if Canada ratified the convention and accepted the compulsory jurisdiction of the Inter-American Court of Human Rights. This is a huge step and should not be taken lightly.
In a moment I will paint a word picture of the court. I have been there many times doing research in their library. I think it may be instructive to see it through the eyes of almost a local. I have prepared several documents. My paper is extremely long, so I have tried to condense it into several more useful documents, which you should have before you. I will leave them with you. I will walk you through the one-page document on the procedure for petitions.
If you have any questions, I will try to entertain them. If I do not have the answer, I commit, through your very efficient clerk, Mr. Heyde, to respond, and he can pass the answers on to the committee.
I must make a disclaimer, Madam Chair. The opinions I express are mine alone. They do not engage my employer, the Supreme Court of Canada, in any way.
The Chairman: If the witness is referring to the one-page document, I understand it is the first page of the legal-sized document.
Mr. Wilson: It is page 1. It is entitled, ``Inter-American Human Rights System Procedure for Petitions from Individuals.''
I have not updated the paper since 1998. I understand you have on staff an expert in the OAS human rights system. I am sure she and your research staff will have no problem updating any information I give you.
In the next few minutes, I hope to get with you a better understanding of the inter-American human rights system and how it functions. I understand you want to know whether it is effective. This is a very good question. It is the bottom-line question.
I do not propose to help you with the political aspects of the choice you have as to whether to recommend ratification and acceptance of the compulsory jurisdiction of the court. This is beyond my knowledge and experience.
My perspective is that of a student of the system who had the privilege of being in Costa Rica for an extended period of time. I must give tribute to my professor, Yves le Bouthillier, from the Faculty of Law, University of Ottawa, who was very helpful to me throughout the process and gave me constant support and guidance.
With that, honourable senators, looking at page 1 of my short document, there are basically two ways of bringing a complaint into this system. One is an interstate communication; the other is a petition from an individual. An interstate communication is where one state complains that another state is not respecting one of the human rights instruments. To my knowledge — research staff can correct me — I do not think there have been any interstate complaints so far. I propose to put that aside and look at the individual petition process.
You will see as well from my question and answer document that the court is in Costa Rica and the commission is in Washington, D.C. Right away, this is not too efficient. One has to go to both to get through the system.
Here in Ottawa, one can do the Federal Court of Appeal and go up the steps to the Supreme Court, so it is actually much more efficient here.
The petition is received by the secretariat, and some initial processing takes place. Very shortly thereafter, there is an acknowledgement of the petition to the petitioner, what is called ``acceptance in principle.'' This does not mean that it cannot be refused later, on grounds of inadmissibility, but it has been accepted in principle.
The secretariat will make a request for information from the state party, giving it 90 days, and up to 180 days, to respond. The state party's response is then transmitted to the petitioner or the representative of the petitioner. Often the person who is the victim of the breach is dead. Therefore, there is a representative of the petitioner.
The petitioner or the petitioner's representative has 30 days to submit observations on the state party's response. Thereafter, the state party has 30 days to respond to the petitioner's observations, similar to civil litigation where the parties exchange information.
The commission then examines the case. We are beyond the secretariat now; we are referring to the commission. It decides whether the petition is admissible. There is a series of criteria in articles 46 and 47 of the convention, which you can look at if you wish, the main one being the exhaustion of domestic remedies. This is usually the first objection that a state party will bring to a petition: You have not gone through the whole process in your own country, so do not come to us.
Throughout the process, there can be settlement discussions, which they call friendly settlement. The commission is supposed to assist in this effort. There is some criticism in the literature about this role of the commission, but it is there.
If the friendly settlement is arrived at, the commission prepares a report for publication. However, if there is no friendly settlement, the commission hears evidence, if it has decided that the petition is admissible. There is a hearing. The commission makes a confidential report. There is a fair amount of controversy in the literature about this confidential report. It is the article 50 report. The question is whether it should be transmitted to the state party only or to the state party and the petitioner. I would say that is in a state of flux right now.
If there is no satisfactory action by the state party within 90 days, the commission may refer the matter to the court, but only, as the previous witnesses explained, if the state party has ratified the convention and accepted the compulsory jurisdiction of the court. You have to do both in order to be subject to the court.
The commission may prepare a final report, which is the article 51 report, which includes recommendations on remedial measures and the period within which the measures are to be taken.
The commission may publish a final report, which is as far as the commission's recommendations go.
Let us assume we are talking about a country that has ratified the convention and accepted the compulsory jurisdiction of the court. The commission then has the option to submit this case — by this time it is a case — to the court in San José. The president of the court will review the petition. If there are defects, the petitioner has 20 days to make the necessary corrections. The president of the court brings the submission to the attention of various officials and the proper parties. Preliminary objections may be raised for two months following notification. These are the same preliminary objections that were raised before the commission. There is duplication here, about which there is significant criticism in the literature.
If you wish, there are suggestions for reform at the end of my paper, made by others and by me. I think there is lots of room to improve this system.
At point 19, the merits may be contested for four months following notification. The commission may advise the court well in advance of the hearing that the commission's delegate will be assisted by a victim's representative.
I will go slowly through this because it is a little complex.
The Chairman: We are getting the point that it is a rather bureaucratic way of approaching this situation.
Mr. Wilson: It is very different from our court system.
The court may then hear evidence again. The case before the court is carried by the commission. The victim or victim's representative has no legal standing before the court. Thus, the delegate pleads the petitioner's case and may be assisted by the petitioner's representative. Once again, friendly settlement is possible at any juncture. However, there can be no friendly settlement until the court first hears from the representative of the victim or the victim's next of kin.
At the end of the process, the court issues a judgment with reasons and possibly separate opinions. Normally, the order of the court is executory and effective in the various jurisdictions. It is just like an order of their courts. Damages and reparations become a court order of the country concerned.
The Chairman: You have pointed out that there is a commission and then the court. There seems to be a great emphasis, which can be good and bad, on trying to settle. There is a mediation role. From your study, was that an effective mediation? Did it solve any of the problems?
In the time you were there, what were the subject matters of the cases? You keep talking about victims. Are we talking about death or some other human rights abuses?
Finally, you say that the court may hear evidence de novo, which means you have a trial. What does the trial look like? Is it a type of due process model that we are used to, where one side presents its case, the other side defends and then the court makes a finding; or is it done in a different, more civil mode, where the judge has more of an interrogatory role, et cetera?
Mr. Wilson: Unfortunately, during the time I was there the court was not sitting. It sits but twice a year. I have been in the courtroom, which is smaller than this room. There are seven judges and the victim is represented by a delegate from the commission. There are witnesses. There can be expert witnesses. It is sort of like an appeal court hearing evidence, which, as you can imagine, is not probably the most effective and efficient way to hear evidence.
Senator Kinsella: Let us consider the case of the desaparacidos and the detenidos in several South American countries. They, or their association, file a complaint. By the time the commission reaches its decision as to whether it is admissible, they have disappeared. Is there any anti-retaliation measure in the system, so that if someone files a communication with the commission, which is the first stage, they will have some protection against retaliation in their home state?
Mr. Wilson: Yes. The commission can ask the court to order provisional measures.
Senator Kinsella: It seems to me that the work of the Inter-American Commission on Human Rights in the Chilean case of the mid-1980s was effective. What is your assessment of that? Is that a good case study to show the effectiveness of the system?
Mr. Wilson: I would have to research that particular case were I to answer you specifically. The effectiveness of the commission, I would say, is extremely limited just because of the number of abuses that occurred in the 1980s. The only thing the commission can really do is make a final report.
Senator Kinsella: Indeed, in your own notes here, you state ``if'' it gets to a court. That is really not that different in general model from our Canadian domestic human rights commissions. The commissions become the advocate if they receive a complaint and they find it has some merit. If they cannot effect a settlement, under the federal Human Rights Act it goes to the Canadian Human Rights Commission. On provincial human rights statutes, it goes to a board of inquiry. The commission, in many cases, takes carriage of the case. In this model, it is the Human Rights Commission that would take carriage of the case. That is not overly different from our system.
How many judgments has the court ever issued? In how many of those judgments is there any evidence that the state against which the judgment was issued complied?
Mr. Wilson: It is extremely limited.
Senator Kinsella: Can you make a general conclusion? The system is not that effective.
Mr. Wilson: By 1998, the court had issued, I believe, 13 judgments, approximately 20 years after it came into existence. Not many cases are submitted to the court. The commission is extremely stingy about submitting cases to the court, which cannot take cases on its own because they have to come from the commission. They can give advisory opinions, but they cannot take an actual case or petition. Therefore, just getting through the system is a victory, let alone meeting with success in the court. In consideration of only 12 to 15 cases over 20 years and of the scale and number of abuses and denials of the most basic human rights, for example the right to life, it is barely symbolic.
The Chairman: Following up on that, were you able to tell why the commission has let so few cases in? I am reading from you that that, on the face of it, the applications to the commission had merit, and yet very few made it through. Is there a tendency to prefer mediation and to not ascribe blame, or is there some other factor?
Mr. Wilson: On page 83 of my paper you will note that we do not have solid statistics from the commission. We do not know how many petitions are submitted, and we do not know how many never get opened. We do know that there are a certain number that are declared admissible each year, and a very small number of those are actually referred on to the court.
The Chairman: The material that comes into the commission obviously has to arrive with some confidentiality. However, is there an opportunity for researchers or state parties to have access to that information?
Mr. Wilson: I have not been to the commission in Washington, DC. I was at San Jose, Costa Rica, so I do not know exactly what the access limits are. However, I do know that, at the beginning stages when they ask for input from the state party, they protect the identity of the petitioner. There is no doubt about that.
[Translation]
Senator Ferretti Barth: There is quite a long list of steps that an individual must follow in the petition process, is that not so?
Mr. Wilson: That is correct.
Senator Ferretti Barth: How long does it take for this body to draw up its final report?
Mr. Wilson: The worst case I have seen took 14 years.
Senator Ferretti Barth: In other words the individual has time to die.
Mr. Wilson: Or is already dead.
Senator Ferretti Barth: Is there no way of reducing the time required to reach a conclusion? Because if you say the worst case took 14 years, other cases may take 9 or 8 or 7 years to be completed.
Mr. Wilson: Yes, that is not uncommon. I think that the most rapid resolution which I saw took one year, but that was extraordinary.
Senator Ferretti Barth: Do you remember which case was involved?
Mr. Wilson: Non, I do not have the name before me. I could send the information to your clerk, however.
Senator Ferretti Barth: Who pays the costs of all these legal steps taken before the Commission?
Mr. Wilson: That is an excellent question, senator. To my way of thinking, you have to have the support of an NGO, a non-government organization. Take the case of an individual such as yourself or myself as a petitioner. Say that I come from a certain country, from the Americas or the Caribbean, and my rights have been violated. If I am still alive, I try to make a complaint. Am I going to travel? First of all, can I write? Am I going to send my complaint to Washington? Will they reply? At some point I will have to present evidence. The obstacles are unbelievable.
There is an NGO called CEJIL — and I do not have the exact name, but it is a committee for justice — it is the largest NGO which works in this field.
Senator Ferretti Barth: To help victims?
Mr. Wilson: Yes. They choose their causes and do excellent work. I have spoken with CEJIL's lawyers and they are admirable. But what happens if CEJIL says no to you?
Senator Ferretti Barth: Is there no recourse?
Mr. Wilson: No recourse.
Senator Ferretti Barth: But who decides whether the cause is valid or not? There must be a commission or a committee.
Mr. Wilson: CEJIL is working to create case law. They try to find causes without precedents to move the law ahead. For example, if you were the victims of a genocide, such a case would already have been established.
Senator Ferretti Barth: It would be easy then.
Mr. Wilson: You have to have a case where there are no precedents.
Senator Ferretti Barth: An average individual would not get the support of this NGO then.
Mr. Wilson: That is correct.
Senator Ferretti Barth: So what happens to this individual's rights?
[English]
[English]
The Chairman: Mr. Wilson, thank you for appearing before the committee to start the process. The information you have given us will be useful for our reference purposes. You have also provided us with a Canadian perspective of the bureaucracy that will accompany all of this.
The committee adjourned.