Proceedings of the Standing Senate Committee on
Human Rights
Issue 11 - Evidence for June 17, 2002
OTTAWA, Monday, June 17, 2002
The Standing Senate Committee on Human Rights met this day at 2:08 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: Honourable senators, we are continuing our study of 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.
We are fortunate to have before us today Dean Leuprecht, from the faculty of law at McGill University.
Dean Leuprecht, we thank you for assisting us as we did in our initial phase. We are now studying the inter- American Convention and whether Canada should take the further step of adhering to the court and all that goes with that system.
Please proceed.
Mr. Peter Leuprecht, Dean, Faculty of Law, McGill University: Honourable senators, it is a great honour to be once again before your committee. This is a great privilege for me.
Before I proceed to the question of Canada's accession to the American Convention on Human Rights, I shall make one preliminary remark. In the early days of the international human rights movement, after the Second World War, there was significant debate on whether regional systems were compatible with the principle of the universality of human rights. That debate is completely out of date. The question has been clearly answered in the affirmative that regional systems are compatible with universality of human rights.
I would like to draw to your attention paragraph 37 of the Declaration of the 1993 Vienna World Conference on Human Rights. It states:
Regional arrangements play a fundamental role in promoting and protecting human rights. They should reinforce universal human rights standards, as contained in international human rights instruments, and their protection. The World Conference on Human Rights endorses efforts under way to strengthen these arrangements and to increase their effectiveness, while at the same time stressing the importance of cooperation with the United Nations human rights activities.
I am recalling this because there is as a consequence no reason whatsoever why Canada, which is a champion and pioneer of human rights at the universal level, should not become engaged in a regional system — even more so at present when there is so much talk about the integration of the Americas in fields other than human rights.
Historically speaking, you know that the first fully fledged regional system, which was to become the most effective international system for the promotion and protection of human rights, was the European system. The European Convention on Human Rights was signed in 1950. The inter-American system as it developed over the years was very much built on the model of the European convention as it was at the time with a commission and a court. However, the European system underwent a radical overhaul in the 1990s. The old European Commission and court have been replaced by a full-time, permanent European Court of Human Rights.
The right of individual petition and the jurisdiction of the court used to be based on optional clauses. They are now mandatory. It has been possible — and I am glad to say I was very much involved in that process — to strengthen considerably the European system in the 1990s. The inter-American system is now more than 40 or 50 years old.
[Translation]
Unfortunately, the Interamerican system did not expand as much as the European system which, by the way, explains the difficult situation of human rights in some countries of the Americas.
Like the former European system, the Interamerican system includes two regulating agencies, the Interamerican Commission, which was created before the American Convention on Human Rights, and the Interamerican Court established under the American Convention.
The Commission, made up of seven independent members elected by the General Assembly of the Organization of American States, plays two major roles: first, it prepares country reports, second, it reviews individual communications.
The Interamerican Court, made up of seven judges, has a double jurisdiction. First, a consultative status at the request of a member State of the Organization of American States or of an agency of the OAS, second, a litigation mechanism towards States that accept its jurisdiction in the field.
Two types of complaints can be submitted to the Convention agencies: individual and interstate complaints. The right to submit an individual complaint to the Commission is not based on an optional clause, unlike the interstate complaints that the Commission can only review if the concerned State recognizes the jurisdiction of the Commission in the matter. The Court can review the cases submitted to them either by the Commission or by a State party to the Convention as long as the defending State recognizes the jurisdiction of the Court.
If a State does not comply with a Court decision, the Court can inform the General Assembly of the OAS and make its recommendations. Unfortunately, no rules indicate what the General Assembly can or must do in such cases.
[English]
I would now quickly set out five differences between the European and the inter-American system. I hope you will forgive me for doing so. Of course, I am strongly influenced by the European system in which I have been involved for many years.
The first difference is that the inter-American system is considerably more complex than the European system. It is based on two overlapping instruments: the American Declaration on the Rights and Duties of Man of 1948, and the American Convention on Human Rights adopted in 1959 and entered into force in 1978.
The second difference is the political context within which the two systems operate. The European system has, at least until recently, essentially regulated democracies with independent judiciaries and governments that observe the rule of law. To a certain extent, this is changing because now more than 50 per cent of the cases before the European Court of Human Rights come from the post-communist countries of Central and Eastern Europe; Russia is number one as far as the number of cases is concerned.
Contrary to what I said about Europe in the past, the history of much of the Americas over the last 40 years has been radically different, with military dictatorships, with violent repression of political opposition and with intimidated judiciaries. Human rights issues in the Americas have often concerned gross violations of human rights. They have had much more to do with forced disappearance, killing, tortures and arbitrary detention. However, these issues are more and more coming up nowadays before the European Court of Human Rights.
The third difference concerns the enforcement of decisions and judgments. The record of compliance is much better in the European than it is in the inter-American system, although I would like to say that in the last few years there has been a marked improvement in the record of the inter-American system.
Fourth, the ratification of the European Convention on Human Rights is nowadays regarded as a political condition for membership in the Council of Europe. There we have therefore an identity of member states of the organization and states' parties to the convention. As you know, this is not the case in the inter-American system. You have two important countries, member states of the Organization of American States, that have not ratified the American convention.
The fifth difference, which has considerable practical consequences, is the shortage of means in human resources and in budgetary terms of the inter-American system. If you compare the means at the disposal of the European Court of Human Rights on the one hand and the lack of means at the disposal of the inter-American commission and the inter-American court on the other, these are absolutely striking.
I would like to add a few more remarks. First, the organs of the inter-American system, for understandable reasons, have put a strong emphasis on democracy and have developed jurisprudence on what one might call a human right to democracy.
Second, I would like to state that the country reports of the inter-American commission have been extremely useful and have had considerable impact.
Third, the court has produced excellent jurisprudence of high quality, beginning with the famous Velasquez Rodriguez case against Honduras until recently. I believe it is fair to say that there is considerable expertise, know-how and commitment both in the inter-American commission and the Inter-American Court of Human Rights.
Let me briefly to conclude with the situation of Canada. Canada is strongly committed to the promotion of democracy and human rights in general and, as has been stated recently, in the framework of the integration of the Americas. One way of showing this commitment would be to at last ratify the American Convention on Human Rights.
[Translation]
I am convinced that Canada's ratification of the American Convention would give a good momentum to the Interamerican system. Canada could contribute to fill the gaps of the system in various ways.
You know like me that Canada has given some motives not to ratify the Convention. I think these reasons are not valid. Especially, I do not consider section 4 of the American Convention as a real obstacle. Like others before me, I think that a reservation or an interpretative statement would solve that problem.
Madam Chairman, here is what I wanted to say as an introduction. As you understand, what I'm saying is that there are several convincing reasons for Canada to ratify the American Convention on Human Rights. Canada's absence is today more and more of an anomaly.
[English]
The Chairman: We heard from a previous witness on this issue of an interpretative clause or reservation. My memory fails me as to which witness it was who said that perhaps a reservation would not be appropriate because we were not there at the negotiation. Consequently we are not reserving something that we had some difficulty with. Therefore, the only route would be an interpretative clause.
We did have another witness who talked about a conditional reservation. I do not want to go into that. Do you make a strong distinction between reservations and interpretative clauses in this context?
Mr. Leuprecht: I will make two remarks in response to your question. First, in international treaty law you can also make a reservation when you accede to a convention, even if you have not been involved in the elaboration of the convention. This can protect a sector of domestic law that the ratifying country might feel would be incompatible with the convention. Technically speaking, it would be possible for Canada to make a reservation. I know that Canada does not like to make reservations, particularly not to human rights treaties. That is very good, but maybe in this case it would be justified.
My second response to your question is that in the light of my European experience I would not make a great case about the distinction between an interpretative statement and a reservation and I will explain why. In the European system, some countries have made interpretative statements. Switzerland is one example. In the famous case of Belilos, the court of human rights — which goes far in interpreting its powers — said that what Switzerland called an ``interpretative statement'' amounted to a reservation. The court then said that as a reservation it was not valid because it went against the object and purpose of the treaty because it was insufficiently precise.
Whatever Canada does, I believe it would be possible to draft a watertight either interpretative statement or reservation. I have had an opportunity to say that on a number of occasions, and I am referring to article 4. Much of the argument about article 4 in my view is artificial. I have no fear with regard to the Canadian legislation on abortion as a result of article 4 of the American convention.
The Chairman: We also heard that Canada has a record of not putting reservations and that this would be the wrong signal. Which do you believe would be more consistent and appropriate given all of the work that you do in human rights, for Canada not to be a signatory at all, or to be a signatory with a reservation or interpretative clause if all other things are equal?
Mr. Leuprecht: Again, my answer is very clear: I would say that obviously it is much more desirable to ratify an instrument such as the American convention — even if it is with a reservation or interpretative declaration — than not ratifying at all. Again, if you look at the far-reaching and highly developed European system, you will see that a number of old democracies have made limited reservations. Under international treaty law, you can over time withdraw the reservations you have made.
Clearly, it is much better to ratify, even if it must be done with an interpretative clause or reservation than not to ratify at all.
Senator Beaudoin: My question is in the same line. The other day we discussed that at length. I take it you have no hesitation — I am inclined to agree — it is better to have some reservation or interpretative statement than nothing. In your opinion, which one is the best? Is it the reservation or is it equal interpretative statement and reservation?
Mr. Leuprecht: On that I have no strong views. I understand that Warren Allman is working on a text. I had a casual opportunity to propose that I offer my services to a former Minister of Foreign Affairs to draft a reservation that would be watertight. I think it is very easy to find a form of words that would cover Canadian legislation on abortion. I have no doubts about that. I have no reason to believe that the inter-American court would have problems with such a reservation.
Senator Beaudoin: My point is the following: I would agree with that solution. We should go ahead and ratify. I am a bit hesitant because prima facie that famous article 4 is going against one or two decisions of our Supreme Court of Canada in that field of life. I am a bit hesitant because our Supreme Court will say this is not in accordance with the jurisprudence that we have established under the Canadian Charter of Rights and Freedoms. It may be that the Supreme Court would insist with its two previous decisions. What would happen in a case like that? It may do so because it is the Supreme Court, but we try to have good support.
Mr. Leuprecht: I cannot imagine how this would come before the Canadian Supreme Court. However, I would say that if you draft a good interpretative statement or reservation, it could not only refer to Canadian legislation but it could say, for example, ``Pertinent,'' and it would have to specify what legislation it is. You could add, ``as interpreted by the Supreme Court of Canada,'' so that would cover possible concerns of the Supreme Court.
Senator Beaudoin: The reason it may happen is that, in Canada, it is relatively easy to challenge the constitutionality of a legislative measure. We never know, but this may happen, and it does happen.
Your answer is that if we refer to the court's decision in our reservation or interpretative statement, perhaps we may more easily have the Supreme Court on our side.
Mr. Leuprecht: Yes.
Senator Beaudoin: I would agree.
Senator Fraser: You said you thought the debate around article 4 was mostly ``artificial.'' I think that was your word. I was wondering if you could explain why you think that. Is it because we can exempt ourselves from it, as you have just explained?
I would also like to put to you a suggestion that one or two of the earlier witnesses made, which is that pro-life groups in Canada could use article 4 to oblige Canada to pass an abortion law.
As you know, we do not now have any abortion law. The Supreme Court did not strike it down for inherent rights; it struck it down as a matter form. It was not that the Charter of Rights and Freedoms said there should be no abortion law in Canada. It went a long way to say, on the contrary, you are perfectly free to legislate it. Parliament chose not to.
It has been suggested to us that this might be used to oblige us to adopt a new law.
Mr. Leuprecht: By ``artificial,'' I meant that for many years, whenever the issue of ratification was brought up, the main argument was article 4 of the American Convention. I think many distinguished lawyers have stated that this problem can be overcome easily, and I believe so, as I explained. I do not think it is a real problem.
When you look at the case law of the Inter-American court, in that respect, there is a great similarity between that court and the European court. They give a liberal interpretation to the legal instrument they have to apply.
I also recall the drafting history of article 4. That could be used, of course, if such a case were brought before the court. It says ``in general'' because there were two countries — Brazil and the United States of America — that allowed abortion at the time. There I have no real fear.
There is another real problem, and even there we can look at the European precedent. How would you bring the problem of abortion before the Inter-American court? It is not easy at all, because, as in the European system, to bring a case you must show yourself to be a victim of a violation. Who is the victim? There have been attempts under the European system, for example, in one case, where a husband complained that he was a victim because an abortion had been practised on his wife. He had not given his agreement. His attempt was unsuccessful. I am quoting from memory. It was a very interesting admissibility decision of the European Commission of Human Rights.
To come to the last part of your question, I do not see how the Inter-American Court could oblige Canada to adopt a law. It would be a law banning abortion or limiting abortion more than it is limited at present.
Senator Fraser: My understanding of what the witness was suggesting was that if we were bound by the convention, Canadians could go after the federal government, or even the provincial governments, saying that under the terms of the convention, we must have a law; that we cannot have an absence of law in this matter. Politically, that would then open cans of worms of gigantic dimensions, but do you think that could be done legally?
Mr. Leuprecht: No, it could not be done in those terms. You can bring a general case under the European system. You can bring a case if you show that you are victim of a violation of the legal instrument, in that case, the American Convention. Again, who would be the victim in a case concerning abortion?
A Canadian citizen would not be able, under the American system, to go to the commission and then to the court to complain in abstract terms against a piece of legislation. He or she would have to have a case.
There have been interesting cases in the European system against Northern Ireland where they still had, until a few years ago, penal legislation against homosexuality, where the victims, who complained successfully, were not actually punished but could show that the existence of the legislation inspired fear. Therefore, the court found that they could claim to be victims of a violation.
However, with respect to abortion, it is difficult for a victim to complain. Who is the victim? Maybe a husband that disagrees, as in the European case, but there is no kind of actio popularis, under which you can, in abstract terms, attack legislation. That is not possible under the European or American system.
The Chairman: If I understand, you are saying that a victim cannot say, because there is an absence of law, he or she is being victimized. You have been saying where is the law. I think the witnesses were saying there might be some reason to compel a country to have some machinery, and if it did not, it could be seen to put someone, in your terms, a victim, or in the country's case, in non-compliance. You are saying that is not so.
Mr. Leuprecht: I will try to elaborate a little.
If Canada had ratified the American Convention, someone could complain about a violation of a specific right. Take, for example, a violation of the right to life. Who could complain, as a victim, about a violation of the right to life in the case of abortion? Certainly not the foetus. Perhaps a member of the family, theoretically, as in the one precedent I have quoted.
However, it is not possible for a citizen, any citizen, to complain about either legislation or absence of legislation. That is simply not part of the system.
It is interesting to look at the case law on the notion on concept of ``victim''; who is a victim. In the European system, there have been attempts to attack legislation in abstract terms. They have not worked because one essential provision is that you have to show that you are a victim. You are a victim if you have been detained illegally. Only the person who has been illegally detained can bring a case. I hope that is clear enough.
It is very difficult to imagine how the machinery of the American Convention could be used with regard to abortion. That is the first problem. Second, particularly if Canada made an interpretative statement or reservation, I think there would be no problem whatsoever. However, that may be a bit risky. Even in the absence of that, I find it hard to imagine that the Inter-American Court would say that the present situation in Canada with regard to abortion amounts to a violation of the right to life as guaranteed by article 4.
Senator Fraser: I want to be certain that I understand this. An ordinary Canadian could not go to court in Costa Rica. However, could ordinary Canadians go to Canadian courts to make the same case, saying, ``You have bound yourselves here; you have therefore bound yourself to bring in an abortion law''? Would that be possible?
Mr. Leuprecht: That brings us back to the subject we discussed here previously, namely, the domestic implementation of international instruments.
At present a Canadian cannot invoke a provision of an international instrument to bring a case before a court because, in Canada, contrary to what happens in many other countries, provisions of international treaties are not directly applicable in domestic law unless there has been implementing legislation.
If there were to be implementing legislation on the American convention, I suppose that the Canadian legislator would be clever enough to cover article 4 of the American Convention as far as abortion is concerned.
Senator Kinsella: I would like to talk a little bit about the ratification process, as it would apply to Canada. In your opinion, must all provinces agree before the federal government could file the instrument of ratification?
Mr. Leuprecht: That is a tricky question, particularly for someone who is not yet a Canadian citizen, just a landed immigrant for the time being.
This is a huge problem. You know that in the American Convention there is a federal clause. Under international law, the subject of international law is the state, whatever the internal structure of the state may be.
In Canada, and I did refer to this last time I had the honour of being before this committee, you still have this burden of an old case decided by the Privy Council in the year in which I was born, so I know how old the case is. It is the Labour Conventions case. You are still landed with that.
As you know, the Canadian situation in that respect is quite different from the situation of other federal states — even those with a similar legal system, for example, Australia. In Australia, you have the foreign affairs power that can overrule the provinces.
As far as Canada is concerned, I would say that, politically speaking it is desirable for all the provinces to agree. I am not sure whether it is still, legally speaking, a necessity or whether — and it has not been tested — the Supreme Court of Canada today would decide in the same way as the Privy Council in 1937. I have no idea. Here we are speculating.
Certainly, it would be desirable for provinces to agree, because — and we spoke about this the last time — the implementation of many of the human rights treaties has to be done at both the federal and the provincial levels. What is happening before international monitoring bodies nowadays is that very often when Canada does not comply. The Canadian representatives who say, ``Sorry, we do not comply because we are a federal state,'' which is of course not good enough. It is not very convincing an argument.
Regrettably, the provinces do not show sufficient interest in going before these bodies. Usually the only province that goes before the international bodies is Quebec — and I will not go into the reasons why Quebec goes there and not the other provinces. It may not only be the love of human rights.
Senator Kinsella: In the decision of the Supreme Court of Canada on the Patriation Reference case, they said there exists a constitutional convention that the provinces must be involved. They did not say it had to be unanimous; they said there had to be a substantial consensus.
Taking that principle into consideration, but also taking considering that there is no automatic domestic implementation legislation — whether federal or provincial — do you think those two considerations ought to lead us to a reasonable judgment that, provided a goodly number of provinces concurred in the depositing of a instrument of ratification, would be sufficient?
I raise this because, as you know, it has been 12 years since the question of Canadian ratification has been studied by federal-provincial-territorial officials. As far as I can see, they have not made much progress. I do not know whether we have received, Madam Chair, the information we sought from that group of officials.
The Chairman: For the record, we are receiving replies from the provinces, not all of them as yet, and there is a decided reticence to appear before this committee. The steering committee will have to deal with that shortly and see if we can find some way out of this conundrum.
Senator Kinsella: What advice would you give this committee? If we were to conclude with the vast weight of the evidence that I believe I heard before the committee, Canada ought to ratify this convention because it would be in our interests from the standpoint of the protection and promotion of human rights, not only domestically and in this hemisphere, but also globally. The federal government should go forward.
Should this committee make this recommendation, and should the federal government accept that recommendation, the federal government should go forward if they had five or six of the provinces on side. Would article 28 of the federal clause of the convention be an impediment?
Mr. Leuprecht: I do not think that article 28 would be an impediment.
The federal government should go ahead if there were to be substantial consensus among the provinces. That would be legally correct, and it would be politically reasonable. It is a major effort of persuasion to get the provinces on board. I have not gone into that.
There are not so much domestic reasons for ratifying, but strong arguments of foreign policy and the credibility of the role of Canada in the Americas. Going ahead under these circumstances, if there were to be a substantial consensus among the provinces, would be a good approach. It could be done. Presently, I do not know that there is considerable resistance from the provinces on this convention.
I happen to live in the province of Quebec, where I think there is support for ratification. I hope that in most — if not all — other provinces, there would also be support.
The other subject I have touched upon in a different context recently is the entire system of consultation between the federal and provincial authorities. There is a lot of room for improvement. It is very interesting to look at other federal states and how they deal with these matters.
I do not mean any disrespect, but as it is now, Canada has a fairly untidy system. It is a not transparent system. Many improvements could be made in that respect.
Senator Beaudoin: It is a bit simpler. In 1937 the Privy Council said that Ottawa may sign the treaty. The division of powers comes into play only for the implementation of the treaty. If Ottawa signs a treaty that may relate to abortion, the signature of Ottawa is enough.
To change the law of the land at the federal level, Ottawa will have to implement the treaty. However, Ottawa alone in criminal law may legislate on abortion. The provinces have nothing to do with the signature of treaties. They have a role only in implementation of the treaty at the provincial level.
It is a federal matter, that is the end of it. That is law, but in practice, of course, it is good to consult the provinces. Strictly speaking, in law, it is not necessary.
I agree with you. We should sign the treaty. We should have a reservation, but I am inclined to think this may be challenged. If it is challenged, the treaty will still be valid because it is signed by Ottawa, which has the right to sign treaties for Canada. Abortion is not in the realm of provinces, except indirectly with the Civil Code of Quebec.
Abortion is a matter between the woman and her doctor. We may change that in the Parliament of Canada, but it will be very difficult because of the decisions of the Supreme Court. In addition, parliamentarians seem to agree with the system that we have. They do not want to legislate in that field. They are satisfied.
Consequently, if you say that a reservation is enough, I would suggest that we sign this treaty. If ever there is a discussion between Parliament and the provinces, Parliament has certainly the full power in criminal law. There is no doubt about it.
We must be more political, perhaps, and we must consult the provinces. We do not need the consent of the provinces to enter into a treaty. We have to have the consent of the provinces when we implement the treaty in the provincial sphere. This is what the law says. That is very clear-cut.
Mr. Leuprecht: Of course, I agree with distinguished law professor, Senator Beaudoin, but what I said in response to Senator Kinsella did not concern only the problem of article 4 and abortion. It concerned the entire range of the rights enshrined in the American Convention.
I agree with you. The Canadian government can ratify the convention under Canadian law. On the other hand, many provisions of the American Convention will require implementing action by the provinces, as does the Covenant on Civil and Political Rights.
I did not go into the additional Protocol to the American Convention on Economic, Social and Cultural Rights. If Canada were to ratify that as well, clearly much of the implementation would have to be done by the provinces.
Senator Beaudoin: I agree with that.
Mr. Leuprecht: Therefore, it would be politically wise to have the provinces on board as much as possible and to consult them. I am not saying it is a legal necessity, but it would be politically advisable.
Senator Beaudoin: I agree.
Senator Kinsella: The experience of the ratification of the two international covenants was one in which the prime minister of the day wrote to all the premiers and after a period of time received their written consent in agreement that Canada ratify those two UN instruments. However, the documentation that was developed around that included a memorandum of understanding among the governments of the day in Canada dealing with things like denunciation. Canada would not denunciate the treaty without the agreement of the provinces.
The complaint mechanism allows for communications from individuals as a result of the option of protocols. As well, the interstate complaint mechanism stipulates that if a complaint were against Canada because of a law of a province, that province would have a lead in preparing the response. This would include issues of admissibility through to the substance of the case being validated by the Human Rights Committee.
Is the ratification mechanism for this convention similar to that of the covenants? Is the implementation of the international instrument analogous to the covenants for this convention? Do the provinces have a say and, if so, how? Is there a protocol in place?
Mr. Leuprecht: Unfortunately, that is what I meant earlier when I said the system is a bit untidy. There are no clear rules in Canada on how that type of process should be conducted. The precedent of the two covenants is of interest. On the other hand, I would not say it is binding. I would repeat what I said before: If you had a substantial consensus among the provinces, the federal government could and should go ahead.
On the issue of denunciation, I hope it is an entirely theoretical issue. Denunciation of human rights treaties is extremely rare, and only happens when you have a radical change of the political system. If you look at the European system, there was only one case of denunciation. That was after the military coup in Greece. I hope there will never be a military coup in Canada, and that the question of denouncing an international human rights treaty will not occur.
On your earlier question, there are no clear rules on this whole relationship between the federal government and the provinces when it comes to international treaty making.
Senator Kinsella: Under the international covenants, I can think of two cases where the apprehended human rights violation occurred as a result of things going on in a province. One is the separate schools issue in Ontario, and the other was the language issue in Quebec.
Let me read article 28(2) of the federal clause of the Inter-American Convention, where it says:
With respect to the provisions over whose subject matter the constituent units of the federal state have jurisdiction, the national government shall immediately take suitable measures, in accordance with its constitution and its laws, to the end that the competent authorities of the constituent units may adopt appropriate provisions for the fulfilment of this Convention.
If you apply that to the two cases I mentioned, how do you see it playing out under this convention?
Mr. Leuprecht: I do not want to make things more complicated than they are, and I hope this is not taken as an argument against what I said earlier. However, under the American Convention, things would be even more complex, because, legally speaking, when you have a decision of the Human Rights Committee under the covenant it is not legally binding. It has great authority, but it is not legally binding. Under the American Convention, countries commit themselves to abide by the judgments of the court. If there were a judgment from the inter-American court against Canada, Canada should execute and implement the judgment.
Your question is very interesting, and I do not know what kind of case would come against Canada. Certainly, in a considerable number of cases, implementation would be within the competence of the provinces. Therefore, there might be a problem. The federal government would have to weigh heavily on the province concerned to ensure implementation, otherwise Canada, as a subject of international law, would be in breach of its obligations.
On the other hand, look at the European system, although in most federal states things are clearer. Look at Switzerland, Austria or Germany, as they are federal states. Many judgments of the European Court of Human Rights are binding; they must be executed. They have to be implemented by the lender or the cantons in these countries. It does work. In Switzerland, criminal law is within the competence of the cantons. The Belilos judgment meant that virtually all the cantons of Switzerland had to make changes in their criminal law. They did so. A whole discipline of compliance will have to be developed. I do not see why it should not be possible in a country like Canada.
It is very useful for Canada to look at the precedents of other federal states, how they deal with these issues of international law and jurisdiction.
Senator Kinsella: Just for the record, when one looks at the inter-American Convention you think it is soft or we have done all that before. From this point of view, it has the potential of being more effective for the promotion of rights domestically than the covenant. As the professor told us, at the end of the day the Human Rights Committee simply expresses a view. However, the view, as with Lovelace, had the effect that Parliament repealed 12(1)(b) the Indian Act. This is a little stronger.
The Chairman: I would agree that it is a little stronger. It is part of our ongoing study when we come to compliance issues, which is another phase of our study. The inter-American court puts some onus on the federal structure to take the necessary steps. It would be interesting to find out what those are. If you look at another part of the convention, it is mindful of federalism and not to intrude on it.
It will be a delicate balancing act, not existent in the international system. The international system just throws up its hands and says it is provincial. The inter-American system would say they have to take steps to show they have encouraged the support for the human right in question, which, after all, is what we thought wanted to happen and may be a nice compromise.
Dean Leuprecht, as usual you have generated quite a discussion. We thank you for giving us the host of information you have today for our study, and the benefit of your experience in the European court and all the work that you do in McGill. Thank you for coming and giving your expertise.
Honourable senators, for quite some time we have been trying to capture a quorum so we can deal with one small matter. That is compliance with rule 94. As you know, the Rules Committee and then the Senate itself passed a resolution indicating that members are to disclose the existence, source and nature, but not the value, of their private financial interests into the subject matter of any of these studies.
Though it is probably a far-fetched idea for the members of the Human Rights Committee, nonetheless all committees, when they do special studies, must pass a motion that we comply with the guidelines. We must say that we have no financial interest in the substance of the matter that we are studying. The method of doing so is that we can file a declaration in 30 days that we have no interest, or if we should have an interest, what the interest is. If we do not file, we are deemed to be in a position of not having an interest.
Senator Beaudoin: I would like an explanation.
The Chairman: That explanation has been given previously on the floor of the Senate. It is that committee members disclose the existence, source and nature, but not the value of their private financial interests, whether held directly or indirectly in respect of the committee's order of reference relating to, and in this case, Canada's adherence to Canada's human rights instruments and process whereby Canada enters into, implements and reports on such agreements, which the committee was authorized by the Senate to study on February 21, 2002.
If you have some direct financial interest in the outcome or the subject matter of this study, you should disclose it. As I say, it is a bit far-fetched in this instance, as we are doing more of a study. It is not as if we are studying banking regulations. I believe the health study generated this practice. If you have any difficulties, you should speak to our clerk and to the law clerk to discuss the matter in detail.
We need a resolution in order to comply with this rule. We must move that we will either file the declarations or, by virtue of having this resolution, then the deeming clause can click in.
Senator Fraser: Even though it is an almost academic construct in this case, because it is hard to see how one could have a financial interest in the ratification of the human rights treaty — at least in this country; perhaps in some other countries it might be possible, if you ran the local torture chamber. That is not the case here. Even if it is almost artificial in terms of construct, it is a precedent that is important to bear in mind. I believe we should always make such declarations. I am very happy to support this item.
It is also useful to note, as you said earlier, chair, that a number of senators have not been able to be here today and that the third member of the steering committee of this committee supports this policy.
I have in hand the text of a motion that has been circulated, which I should like to move. If any senator so wishes, I can read it, but it is quite long. It just says what we have just said.
The Chairman: All members were circulated with all of the information as a result of our steering committee. The dilemma is that we have had a moving target as members. Some come; some go. At the point where we wanted to deal with this motion, we have not had the requisite quorum. That is why I am insisting on it today, before we adjourn. It is a policy of the Senate that we do this on every special study. I am very supportive of it.
Senator Fraser: I move the motion.
The Chairman: The motion is in front of us. We have had the opportunity to look at it for some time. Is there any further discussion? Are we in agreement?
Hon. Senators: Agreed.
The Chairman: We are in the process of studying the Inter-American Convention on Human Rights with a view to reporting on any comments, analysis and recommendations.
Our second witness today is Mr. Saganash, Director of Quebec Relations with the Grand Council of the Crees, the central political body of the Crees. The council was formed in 1974, during the negotiations with the federal and provincial governments in the context of the James Bay hydroelectric scheme. The grand council has consultative status at the United Nations, but does not have a similar status with the Organization of American States, since the recognition of NGOs is still at an early stage in the OAS.
I hope that Mr. Saganash will provide us with some background about the experiences of Aboriginal peoples in the Americas with the American Convention on Human Rights and with any other views that the grand council and other Aboriginal groups may have about the convention.
Also, if there are any comments about the role of NGOs with the OAS, as this is not an area that we have pursued before, would be welcome.
With Mr. Saganash today is Mr. Brian Craik and Mr. Robert Epstein.
Mr. Roméo Saganash, Director of Quebec Relations, Grand Council of the Crees: Honourable senators, we welcome this opportunity to come before you on this very important presentation.
As you have noted, I will be assisted in my testimony by two of our senior policy advisers at the Grand Council. Both have longstanding experience with the Grand Council over 25 years.
International human rights law was given added urgency and importance with the experiences that grew out of the Second World War, Hitler's race laws and the realization that states sometimes can enact evil legislation and that, therefore, what was legal was not necessarily just.
The context in which this realization took its present form was in the birth of the United Nations, the Nuremberg tribunals and the jurisprudential influence of the victors of the war on the constitutional landscape in Western Europe and Japan. These events gave rise to the idea that human rights could no longer be left exclusively to the jurisdiction of individual states but that, somehow, human rights jurisdiction would be internationalized and thereby be placed above the perceived self-interests of individual states.
In this sense, the Charter of the United Nations, the International Covenants and the myriad human rights instruments that have been promulgated have created an independent human rights sovereignty having paramountcy over the laws of individual states which, at times, challenges the laws of those states, which may well be members of the international organizations that have usurped their sovereignty in the field of human rights.
The fact is that when states sign and ratify international human rights instruments, they concede and vacate some aspects of their sovereignty to the machinery of the international community for the greater cause of humanity, believing that when they do so, they will not themselves be called to account for any injustice on their own part.
In the real politics of international affairs, it is this issue, state sovereignty first and foremost that is determinative of the refusal to accede to a principle of international law because it would not be consistent with the municipal or so- called ``domestic'' law of the state. It has been pointed out often that the states that have not ratified the American Convention on Human Rights are the ``English-speaking'' states as opposed to those formerly ``dictatorial'' regimes that have ratified the convention. This apparent contradiction will be better understood if we can be more frank with each other.
It is the ``good guy'' states that have not ratified the convention — principally the United States and Canada, whose laws are already said to protect human rights and whose citizens therefore do not need the protection of the inter- American court system. These states place themselves above international human rights law. They are also the states most reluctant to make themselves subject to any higher form of sovereignty. Take note of the United States' refusal to accept the jurisdiction of the newly created International Criminal Court, for instance.
Most of the arguments this committee has heard urge Canada to ratify the convention so as to strengthen respect for human rights among the members of the OAS and to augment Canada's influence over the shape of human rights in the Inter-American system. These are good politically self-serving arguments to encourage officials at the Department of Foreign Affairs; however, they are not the arguments that we want to make.
The Grand Council of the Crees wants Canada to subject itself to the full force and effect of international human rights law without resort to reservations or statements of understanding. If there are already stronger human rights protections at the ICCPR, for example, or in Canadian law, then Canada has no cause for concern. If, however, Canadian law needs to be confronted and corrected by exposure to an independent human rights tribunal removed from Canada's own particular notion of self-interests, Canada will be a stronger and a better country as a result.
There is no longer any rationale for Canada's continued delay in the ratification of the ACHR. All of the stated objections that have been given for Canada's hesitation have been explored and answered. Is there some person or group that we can identify who continues to object? Of course there is. However, this is not grounds for further delay; the substantive reasons for failure to ratify have been repeatedly addressed and disposed of.
In the view of the Grand Council of the Crees, Canada should ratify International Labour Organization Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries. Canada should ratify the ACHR and accept the jurisdiction of the Inter-American Court of Human Rights. Canada is already subject to the American Declaration on the Rights and Duties of Man. However, in the Aboriginal community, we need more explicit protections, since Canada has made it a practice not to integrate the provisions of international human rights law into its own legislation.
As I mentioned a few moments ago, Canada is one of those states that believe that international human rights law has its real application in those unnamed states that are notorious for human rights abuses. The Department of Foreign Affairs and International Trade officials have often told me this. When Canada was recently criticized for its policies toward Aboriginal peoples in the context of the ICCPR periodical review process, and within the periodic review of the Committee on Economic, Social and Cultural Rights, Canada claimed that the review process was flawed and that the information that Canada had supplied to the committees, was out of date.
When Canada lost Lovelace under the Optional Protocol to ICCPR, the ratification process for ILO Convention No. 169 was set back, perhaps indefinitely. These I believe are the real, but unstated, reasons for the delays we see at the OAS, although you will have difficulty obtaining official confirmation of this.
Year after year, Canada has been criticized severely for its treatment of Aboriginal peoples by its own Human Rights Commission. In recent years, the United Nations has questioned Canada on its failure to implement the recommendations of the Report of the Royal Commission on Aboriginal Peoples. The United Nations Human Rights Committee has decided that Canada's policy of extinguishing Aboriginal rights is inconsistent with Canada's obligations under ICCPR, yet Canada continues to adhere to this censured policy.
Will Canada subject itself to another human rights body that may question this particularly sensitive area of the national psyche? There are disproportionate numbers of Aboriginal prisoners incarcerated in Saskatchewan. ``Self- governance'' is imposed in the racial context of the Indian Act. Will Canada want these issues to be adjudicated outside its own judicial system?
Recently, the Inter-American Court of Human Rights recognized the land rights of the Awas Tingni people of Nicaragua. Officials of the Department of Foreign Affairs have made no official reaction to this precedent-setting decision. I cannot help but wonder if Canada's continued failure to place itself fully within the machinery of the OAS through ratification of the ACHR is the official reaction to the Awas Tingni decision.
Canada cannot continue to occupy the moral high ground as a leading advocate of human rights and yet avoid subjecting itself to the human rights enforcement and oversight mechanisms of the international community. National politics, the lack of an effective opposition and the perverse social agenda of the Alliance Party have given Canada an undeserved respite from addressing the terrible and deadly problems that Aboriginal peoples confront in Canada. The international human rights community will urge Canada to face these problems with honesty and determination. At worst, the process will bring, perhaps, embarrassment but Canada will be a better place for it.
Senator Fraser: Mr. Saganash, you make a strong plea for binding the country in every way possible under international human rights law. However, I wonder if there is anything specific in the American Convention on Human Rights that you think would be particularly beneficial to Aboriginal people in Canada?
Mr. Robert Epstein, Consultant, Grand Council of the Crees: The recent case in Nicaragua had to do with a long- term forestry concession that was given to a Korean company. The Nicaraguan government was willing to address this issue to a certain extent, but not to the extent that they would recognize the property rights of the Aboriginal peoples. The convention contains protection of property rights that was invoked in this particular case, and would be extremely useful for Aboriginal peoples in Canada.
Senator Fraser: Do you think that would be stronger than the existing constitutional protections in Canada? How would it affect land claims negotiations and all those things?
Mr. Epstein: I would refer you to the Lovelace case. The Lovelace case was done under the Optional Protocol of the ICCPR. The Lovelace case could have been adjudicated in favour of Aboriginal peoples in Canada. It was not. It was not therefore the question of what was in the Constitution, it was a question of whether the court was independent enough of the particular self-interests that were argued before the court. The advantage of being able to have recourse to the international community is not always because the letter of the law is stronger at the international level, but because there may be greater independence with regard to the issue at hand.
That is really the question. In the last 20 years indigenous peoples have gone to the United Nations in order to have a more independent forum. That is really what has happened.
Senator Fraser: It seems to me that the issue of property rights can be a two-edged sword, if they are just property rights. If I gaze from afar at a case like Burnt Church, it seems to me that both sides could make some interesting property rights claims there and that what is actually happening is Canada probably pays more attention to Aboriginal rights — maybe not enough by your way of thinking — than would be paid on a pure property rights basis.
Do you see what I am driving at here? I do not want you to talk about Burnt Church. That was just an example that came to mind. I wonder if this would be as useful as you hope. It seems to me, from the short summary I have read of the Awas Tingni case that Nicaragua had no law at all and no practice in these matters, but we have built something — demonstrably not enough. That strikes me as perhaps more advanced than this.
I would have expected you to come here and suggest it be ratified but include statements of interpretation saying that nothing in here shall detract from Aboriginal rights, as guaranteed in the Constitution and other law.
Mr. Epstein: It is not necessary to say that with regard to the American convention because the American convention already recognizes that if a municipal law of a particular state is stronger, or if there is other international law that is stronger, that takes precedence, so that is unnecessary.
With regard to the question of going into the international community, the reason is not necessarily because there is stronger law in another jurisdiction but simply because it is another jurisdiction. That is the most important point. That is the way reference has always been used in international human rights, by going to the international community.
The Chairman: Mr. Saganash, if I understand your submission, you believe that Canada should submit itself to as many international instruments as there are and that in the end Canada as a whole would be better for doing so. In saying that also the Aboriginal peoples would be, therefore.
In particular with the Inter-American Court, has the grand council had any contact with any of the Aboriginal groups in the American context? I know certainly some out West have and on an educational basis, et cetera, there is a growing collegiality, sharing of information. I have seen a collaborative effort in solving problems, looking at a North American-South American dialogue of Aboriginal people, and looking at university concepts, heritage concepts and archaeological concepts.
Are you involved in any of those areas, and if so, during the discussions or meetings that you have had has anyone raised the issue of the Inter-American Court and Canada's heretofore non-compliance?
Mr. Saganash: The Grand Council of the Cree has been working on these issues of recognition of the rights of indigenous peoples at the international level for more than 20 years. We achieved our NGO status with the Economic and Social Council, ECOSOC, back in 1982.
We have been working on these issues for the past 20 years at every level — in Geneva, with the United Nations, and more recently with the OAS. The OAS, as you perhaps know, is at this moment preparing a Declaration of the Rights of Indigenous Peoples in the Americas. Through that forum we have had many contacts with the representatives of indigenous peoples from these regions, including Central America and South America.
The network we have managed to create and sustain over the past 20 years is simply overwhelming now. We have met many of the representatives of the 300 million indigenous peoples in the world through these forums. That network is very important today. Obviously there is a lot of exchange of information. These forums allow us to explain to the rest of the world all the developments that happened in our own countries. We do it in the case of Canada and in Quebec. Others do the same for their own regions.
The network that exists is quite impressive and important today. We continue to build from that network through exchange of information and through a better understanding of the developments that take place throughout the world in recognition of the rights of indigenous peoples. That continues to evolve and develop as we speak.
The other important aspect in the work we have done over the past 20 years is the fact that while creating this network we have also helped other people from other countries better understand the struggle of indigenous peoples. It was mentioned a while ago that the only province that has been present in these forums at the international level is Quebec. I can attest to that. I have been to many of these meetings, and many of these forums, and the only province that has been present to date is the Province of Quebec.
I am convinced today that, as a result of that participation, Quebec has come to understand the issues at hand and, in particular, in the context of their own struggle for Quebec secession. There are complex and complicated issues that arise from the perspective of indigenous rights. Through their participation at these forums, Quebec has come to better understand where we come from on these issues.
Quebec is the first province to implement important principles of the Royal Commission of Aboriginal Peoples' recommendations, in the recognition of the right of indigenous peoples to have a fair share in the development of access to their own resources on their own traditional lands. I believe that comes from a better understanding of what goes at on the international level.
The Chairman: Both your brief and your comments now have indicated why you believe this international perspective is important for you and your people.
Have other Aboriginal groups in Central America and South America contacted you indicating Canada's adherence to the Inter-American Court would be helpful in having their governments adhere to some international standards of human rights? That is the other side of what you were talking about.
Mr. Epstein: The Grand Council of the Crees is a charter member of a group established by the Nobel Prize Laureate, Rigoberta Menchú Tum from Guatemala. I am a consultant to that organization. It now consists of indigenous people from all over the world, but it had its beginning with conflicts that existed in Latin America. It is a group of indigenous leaders that goes into places of conflict — initially in Latin America — to try and mediate peace.
Through that group, we have had a number of meetings in Latin America, Mexico and Guatemala, and some meetings in Canada. The issue of the OAS is extremely important. One of the members of that group is Dr. Myrna Cunningham, now the Secretary-General of the Indigenous Institute of the Americas, which is part of the Organization of American States. Many times the issue of strengthening the enforcement and juridical mechanisms inside the OAS has come up.
The lack of Canada's adherence to that convention has come up specifically — not just from Rigoberta Menchú Tum but also from representatives in that organization who come from all over the member states of the OAS. They would like to see Canada adhere to this particular convention. They make a number of strong comments about Canada's failure to adhere to the questions. They say Canada wants to be influential, vote in the OAS and exert political force within the OAS, but it does not want to contribute to the strengthening of the human rights mechanism. We have heard that in the context of meetings of that group and other meetings that group has organized in Latin America.
Yes, other indigenous peoples would absolutely welcome Canada's adherence to the convention.
The Chairman: Have you had discussions with the Department of Foreign Affairs about Canada joining the Inter- American Court, or was it just general discussions about OAS matters?
Mr. Saganash: It was mainly general discussions. We often meet with department officials through these forums and through these meetings that are held at the United Nations or at the OAS, and these are things that they have said.
Senator Pearson: It is a fascinating question about the relationship between that convention and Aboriginal rights. Were you recently down in New York during the two weeks being spent on Aboriginal issues?
Mr. Saganash: We were supposed to attend the meeting, as usual. This was an important meeting; it was the first meeting of the permanent forum established some time ago now. Unfortunately, for administrative reasons, may I say, it was not possible. My passport had expired.
Senator Pearson: Do you think that the permanent forum will be useful?
Mr. Saganash: Yes.
Senator Pearson: Could you explain what it is for the record?
Mr. Saganash: It will be useful absolutely. For the past 20 years, indigenous peoples worldwide have asked for a permanent forum where we can deal with Aboriginal issues and indigenous peoples' rights directly and specifically. That has been something that indigenous representatives throughout the world have been asking for as long as I can remember.
It was an important step because we now have a permanent forum within the United Nations that will deal with indigenous issues where we can debate the rights of indigenous peoples throughout the world. It is an important step in the right direction.
Mr. Epstein has been involved in this particular issue for the last 25 years.
Mr. Epstein: Although the United Nations moves notoriously slowly, when you look at the difference between the recognition of the issues concerning indigenous peoples now and 20 years ago, there has been enormous change.
The Grand Council of the Crees, Dr. Ted Moses, has been instrumental in the establishment of the permanent forum, which has just had its meeting. It was in 1993 at the Vienna Summit on Human Rights that Dr. Moses spoke on behalf of the North American indigenous peoples. Both he and Rigoberta Menchú Tum spoke, and they both suggested at the same time the creation of a permanent forum.
That is more or less the first formal placing of that issue. The Vienna Declaration: A Program of Action was the first official move by the United Nations to create the permanent forum. The Grand Council has worked very hard toward the creation of the permanent forum for indigenous peoples. We are pleased there is such a thing. We hope that it will have a good result, but I think it will take a lot of work.
Senator Pearson: I am looking at the extremely slow development of the Declaration of Indigenous Peoples' Rights. Could you comment on that?
Mr. Epstein: A United Nations group of experts drafted the declaration. This was the working group on indigenous populations. While it was an extremely laborious process — governments, the indigenous people and various academics were present — I think they produced an excellent Declaration on the Rights of Indigenous Peoples.
That declaration came into being in response to something called the ``Martinez Cobo,'' which reported on the actual conditions in the world of indigenous peoples and dealt with the questions of rights of indigenous peoples. That declaration received the approval of the Subcommission on Prevention of Discrimination and Protection of Minorities as it was then called.
The declaration then went before the Human Rights Commission, which is a political body. All kinds of political issues had been raised. Here is where you run into the politics of the United Nations. Some countries are afraid of the possibility of there being a declaration. It is only a declaration. It is not binding. If it were more than a declaration, it would not be binding, as we have heard today. Nevertheless, Canada has created all kinds of opposition to this.
If you read the declaration, you will see it is quite innocuous. Indigenous peoples would have drafted something much stronger. Even in the area of saying there is a right to education, Canada went to the United Nations and claimed that there was a national jurisdiction on education, Warren Allman was there and said, ``Wait a second, that is a provincial jurisdiction, not national.'' That is the sort of discussion that has occurred.
The acceptance of the declaration has gone, as you say, extremely slowly. ``Extremely slowly'' is an understatement. I think they have adopted one or two paragraphs in all the time that it has been there. It does not look very good. The countries opposed to it are saying that the indigenous peoples have to be willing to compromise on the issue of the contents of the declaration.
The problem is that you cannot compromise on rights. Either the rights exist or they do not exist. You cannot say, ``In our case, because we are indigenous influences people, we are willing to accept less than the rights accorded to peoples universally in the world.'' Since human rights are supposed to be universal and are supposed to be indivisible, it is very difficult to accept that there would be compromises when it comes to the rights of indigenous peoples. That is the stand-off occurring right now at the United Nations on that issue.
Senator Pearson: I can relate to that. I have just come through three years of negotiation on the outcome document for the Special Session on Children, where I think we got some good language on education for indigenous people, which is different from what you have just suggested. However, it is a political process; it is an interstate process. You have all the different states.
I accept the idea that a right is indivisible, but the interpretation of what that right means is where the issues evolve — particularly when you get to delicate issues like girls and their rights. Whether or not you think that right is divisible depends on which country you are. I think it is easy to say rights are indivisible, but when you get into negotiations, as you know, the interpretations become contentious.
Thank you for that background. I know that declaration has been 12 or 15 years — a long time. It is a bit disconcerting now that it is not possible to move further. Do you think the permanent forum will help that process?
Mr. Epstein: I think the permanent forum can help that process, but I think it has to be moved back from the political and into the direction of experts. Some of the questions that arise are quite unreasonable and there needs to be more information on the background. There are actually suggestions at the political level going back to language that was rejected 10 years ago in another forum. People need to be better informed.
As you know, in political negotiations, the reasons that are given are not always the official reasons because political representatives at international bodies are under instructions. They may be simply told, ``We do not want that. Give some rationale.'' I do not think people are being forthright about their real reasons for wanting changes. If that were to be engendered, if the discussion were more open and informal, we would get further.
Senator Fraser: Further on the theme of girls and women, and on the American Convention on Human Rights, you said, Mr. Saganash, if I correctly, that we should ratify without resort to reservations or statements of understanding. May I ask if you consulted any Aboriginal women's groups about article 4?
Mr. Saganash: I have not.
Senator Fraser: Then you have no idea whether they would take such a sweeping ``no reservations'' line? Would you be interested in consulting them?
Mr. Saganash: Sure.
Senator Fraser: Could you let us know?
Mr. Saganash: Yes.
The Chairman: If there are no further questions, I thank you for coming and expressing your point of view, particularly on the Inter-American Court, but also on the broader issues internationally on Aboriginal peoples. It has been helpful. As you know, our study will continue. I hope you will follow it. If you have any further information, it would be helpful if you could file it with the Clerk.
The committee adjourned.