Proceedings of the Standing Senate Committee on
Human Rights
Issue 3 - Evidence, March 17, 2003
OTTAWA, Monday, March 17, 2003
The Standing Senate Committee on Human Rights met this day at 5:30 p.m. to study Canada's possible adherence to the American Convention on Human Rights.
Senator Shirley Maheu (Chairman) in the Chair.
[English]
The Chairman: Today Mr. Mark Bantey from the law firm of Gowling Lafleur Henderson will give us his opinion of the process we have before us, that is, our study of the American Convention on Human Rights. Please proceed, sir.
Mr. Mark Bantey, Gowling Lafleur Henderson LLP: Honourable senators, I am honoured to have been invited to speak to you today about some issues concerning freedom of expression, in particular, about the right to reply provided for in Article 14 of the American Convention of Human Rights.
On the face of it, Article 14 provides for a mandatory right of reply to any person who considers that his or her reputation has been injured by the publication or broadcast of a statement or opinion in ``a legally regulated medium of communication.''
At the outset, I should say that the idea of a mandatory right of reply is something that is not recognized in Canada. None of the provincial acts dealing with libel or slander gives an injured person a mandatory right of reply, that is, the right to have his or her version published or broadcast. In fact, only one provincial act, namely, the Quebec Press Act, even provides for a reply mechanism, and it is one with which the media are not obliged to comply.
You are no doubt familiar with the standard procedure set out in our various provincial libel and slander acts. A person who deems himself injured by the publication or broadcast of a report must first put the news media on notice to retract or correct the defamatory statement. The libel notice generally has to be in writing. The medium has a brief period of time, usually two or three days, to retract or correct the report. If the medium refuses to retract or correct, the complainant has to take legal action to seek compensation for the damage to his or her reputation. If the medium does publish or broadcast a full retraction, or the appropriate correction, the complainant's right to sue is either excluded or it is restricted to the recovery of specific limited damages. There is, however, no right of reply as such.
Only the Quebec Press Act gives the complainant the opportunity to reply and, despite the language used by the Quebec legislation, section 7 of the act stipulates that the newspaper shall also publish, at its expense, any reply which the party deems himself injured, it remains, in Quebec, an optional right of reply for both the injured party and for the newspaper.
If the right of reply in Quebec is exercised, it extinguishes the right to sue. If the newspaper publishes, one, a full retraction and, two, the complainant's reply without further comment, no action for libel may issue.
I have said that the right of reply is optional for both the complainant and the news medium. A complainant may choose not to exercise his right of reply because he or she wants his day in court and because he or she wants to seek the full measure of her damages.
A newspaper can choose not to publish a reply, especially, of course, if the newspaper stands by its story. However, if the newspaper refuses to publish the reply submitted by the complainant, it has to live with the consequences of that decision in the courtroom. In assessing damages, the court will necessarily take into consideration the fact that the newspaper has refused to publish the reply submitted by the complainant.
I would argue that, if enacted in legislation, a mandatory right of reply would be an unjustified interference with editorial autonomy and, hence, if enacted in legislation, an unconstitutional violation of the fundamental right of expression guaranteed in section 2(b) of the Canadian Charter of Rights and Freedoms. To put it bluntly, I would argue that governments in a free and democratic society have no business telling news media what to put in their publications or broadcasts.
In the United States, the constitutional validity of a mandatory right of reply has been examined in two cases with two different results. In Red Lion Broadcasting Company Incorporated v. The Federal Communications Commission, 395 U.S. 367 [1969] the Supreme Court of the United States unanimously upheld a Federal Communications Commission regulation requiring broadcasters, in treating public issues, to give fair coverage to both sides. The court also upheld the more narrow, personal attack rule, which stipulates that persons whose honesty and integrity are attacked over the air during discussions of controversial public issues be afforded the opportunity to reply.
The argument that such a mandatory right of reply constituted government regulation incompatible with the first amendment, freedom of press, was rejected by the Supreme Court on three grounds. The first ground is that broadcast frequencies are scarce. The second ground is that the government should, therefore, require of a licensee that the frequencies be shared with others. The third ground is that the licensee must conduct himself as a fiduciary, so that representative views are given a chance to be heard on the airways.
However, in Miami Herald Publishing Company v. Tornillo, 418 U.S. 241, [1974], the U.S. Supreme Court came to a different conclusion with respect to the print medium. The court held that a Florida statute allowing a political candidate to compel a newspaper to print a reply to the newspaper's attacks and criticism violated the first amendment, guarantee of a free press. The court stated that legislators may not interfere with editorial discretion — that is, the decision to print or not to print — and found the mandatory right of reply statute as offensive as censorship.
The court based its findings on two arguments. First, it thought that the right of reply would have a chilling effect on editors who would shun controversy. The chilling effect would necessarily diminish vigorous public debate.
Second, the court held that forced access, that is, a mandatory right of reply, would intrude into editorial functions. The court said:
A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues, it cannot be legislated.
Several European countries recognize a right of reply. According to the typical European model, an individual affected by an article has the option of requesting that the newspaper print his reply. If the newspaper refuses, the individual can then petition the court to rule on whether or not the newspaper's decision was justified. A court that rules against the newspaper can then impose a fine, order it to print a reply and allow the individual to pursue an action for defamation.
Perhaps the most radical approach to the right of reply is the French model. The Loi sur la liberté de la presse provides for two distinct rights: a private individual's right to respond to a publication that names him or designates him, the so-called ``droit de réponse''; and the public official's right to reply when he alleges that his official activities have been falsely reported, the so-called ``droit de rectification.''
The French right of reply is obviously a broad one. It illustrates some of the inherent difficulties with the mandatory right of reply such as the one found in Article 14 of the American Convention on Human Rights.
First, should there be a right of reply to statements of opinion as well as to statements of fact? Since the French model and Article 14 of the American Convention on Human Rights do not distinguish between statements of opinion and statements of fact, a right of reply exists to both. In fact, Article 14 specifically refers to the right of reply to inaccurate or offensive ideas. What is an inaccurate idea? In upholding the right of individuals to express offensive or outrageous opinions, the U.S. Supreme Court has consistently stated that there is no such thing as a false idea. There is no such thing as a false opinion. They may be offensive or outrageous, but they are protected by the first amendment right of freedom of expression.
Under Article 14 of the convention, shall a restaurant owner who is unhappy with the food critic's review of his restaurant be entitled to an automatic right of reply? Shall the author of a book or a playwright be entitled to respond every time he or she receives a negative review from a literary critic? Shall the developer be given a right of reply when the architectural value of his project is criticized in the media? If, alternatively, we are to limit the right of reply to statements of fact, how do we distinguish statements of fact from statements of opinion? The two are often intertwined in a given article or commentary.
Second, Article 14 does not go as far as the French model, which gives the right of response to anyone who is named or designated. Nevertheless, it opens the floodgates to anyone who is injured by inaccurate or offensive statements or ideas. Who is to determine what is inaccurate or offensive? An idea may be offensive to one person and brilliant to the next. Article 14 basically gives an automatic right of reply to anyone who happens to disagree with an article or an opinion published in a news medium. Will this provision, if enacted in legislation, flood the news media with inept, useless or irrelevant rebuttals? How do you run a newspaper if you are printing hundreds of replies from hundreds of individual citizens and public officials?
A British House committee examining freedom of press issues, the Fox committee, said that a mandatory right of reply is inherently objectionable because it ``entitles a person, who may be without merits, to compel a newspaper to publish a statement extolling his non-existing virtue.''
Third, if the media are compelled to publish replies, shall they be forced to publish replies that are themselves libellous, obscene, racist or inaccurate? What if the editor knows that the reply contains blatant falsehoods meant to mislead the public? What if the reply is irrelevant to the issue at hand?
Fourth, how does one control the length of the reply? Should it be restricted to that which is necessary to correct the allegedly inaccurate facts? If there is a right to reply to statements of opinion, shall the injured party be entitled to publish a rebuttal of the same length as the original review?
These are some of the practical problems with a mandatory right of reply. The more fundamental problem that remains, however, is whether such a right is constitutionally sound. The Canadian courts have not had an opportunity to examine the problem, but I think they would adopt the position taken by the U.S. Supreme Court in the Miami Herald case, namely, not only is such a right totally impractical, it also constitutes an unjustified intrusion in editorial autonomy and it is an infringement of freedom of the press.
Certainly, as it is currently drafted, Article 14 of the American Convention of Human Rights, if enacted in legislation, would beg a constitutional challenge based on section 2(b) of the Canadian Charter of Rights and Freedoms, not to mention a challenge based on the division of powers.
Thus, the ideal solution would be the Quebec model, which gives an optional right of reply and preserves the principle of editorial autonomy. If the newspaper elects not to choose the reply, for whatever reason, it will have to answer for its decision in a court of law. Perhaps a court of law and not the legislature is the best forum to resolve any conflicts between the fundamental right of freedom of press and equally fundamental right to protect the integrity of one's reputation.
I was asked to limit my comments to 15 minutes. If there are any questions, honourable senators, I would be pleased to answer them.
Senator Beaudoin: You raise a very interesting point. If we adhere to this convention — and I hope we will ratify it one day — there will be a problem. We have two systems of law in Canada: the Civil Code in Quebec and the common law system in the rest of the provinces. They are not exactly the same. When you refer to the French law, am I correct in saying that you were referring to the French law of France?
Mr. Bantey: That is correct.
Senator Beaudoin: Although the Civil Code of Quebec was inspired by the French Napoleonic Code, it is different in many aspects. You are probably right when you say that, if we decide to adhere to this convention, we may need to go before a court of law to solve that problem. However, this will be considered to be a treaty, and we know that the federal authority may enter into a treaty. There is no problem with that. We also know that, to become the law of the land, we must pass legislation to implement a treaty. We do not do that often. In fact, we have not done that since 1937.
What will happen if we adhere to the convention? It is one thing to enter into the treaty, and I hope that we will do that, but it is another thing to give effect to this measure. The situation may be different in Quebec from the situation in the other provinces. Do you agree or disagree?
Mr. Bantey: I agree absolutely. A recent Supreme Court decision stated that there is a fundamental distinction between the common law provinces' model of libel and slander and the Quebec model of libel and slander. The Quebec law is based fundamentally on the notion of a fault, with some interesting consequences. For example, in Quebec, truth is not an absolute defence, whereas it is in the common law provinces. You can make a true statement in Quebec and still libel someone.
The other consequence in Quebec is that you can make a false, defamatory statement and not be held liable. You will not be at fault if the reporter has taken all due care in verifying the facts behind the story. As a result, there is a fundamental distinction.
Senator Beaudoin: If we adhere to this convention, it will mean that, in practice, the implementation of the treaty in Quebec may be different from the implementation in the other provinces. However, I have no problem with that because we have two systems of law.
At the federal level, of course, it is another matter. The common law principle may prevail; but it would mean that we would have a system in Quebec that would be different from the other provinces. I do not disagree with that. I think it is the situation. I would not, for that reason, be against the adherence, but we must realize that we may have two systems of implementation of treaties.
Mr. Bantey: Libel and defamation necessarily fall within the provincial jurisdiction.
Senator Beaudoin: There is no doubt of that in my mind.
Mr. Bantey: Therefore, if the treaty is to be translated into federal and provincial legislation, it will necessarily have to be translated into legislation in all the provinces.
My argument is that, even if it is translated into a specific piece of Quebec legislation, it still will face a challenge under the Canadian Charter of Rights and Freedoms. A mandatory reply in the Quebec Press Act would certainly face a challenge under section 2(b) of the Charter of Rights and Freedoms. I am not convinced it would survive such a challenge, because it interferes with editorial discussion.
Senator Beaudoin: The Charter of Rights applies uniformly throughout Canada. The Supreme Court may come to the conclusion that it is against the Charter of Rights and Freedoms. We would then have another problem. Is it possible that it could be accepted in one province, let us say Quebec, and not in the others?
Mr. Bantey: No. I would argue that a mandatory reply would be contrary to the Charter in all cases. It fundamentally interferes with the freedom of the press, whether it is in Quebec or in the rest of Canada. Freedom of the press is a concept that goes beyond the provincial borders. It is a fundamental right guaranteed in the Canadian Charter of Rights and Freedoms.
Senator Beaudoin: Would it be the same decision?
Mr. Bantey: I would argue that it would be.
Senator Fraser: I should tell you, chair, that although I did ask that this witness be asked to testify before our committee, I have not discussed this matter with him. In fact, I have not laid eyes on him for quite a long time. I was extremely interested to hear what Mr. Bantey had to say. I hoped he would say all that he did.
A number of our witnesses have told us that there is no problem with this particular version of a right to reply. They put forward the argument that it is done in Quebec now under the Press Act. I must confess my memory of the text of the law is vague. However, you said that the Quebec act actually uses the word ``shall,'' but that this has been interpreted in Quebec as being optional. How did that happen? How did we get from ``shall'' to ``may''?
Mr. Bantey: I do not know if there is any specific case law. However, I think it follows necessarily from a later provision in the Press Act that stipulates that the right of action is extinguished if the newspaper publishes both a retraction and a right of reply. As far as I am concerned, this means that they are not necessarily obliged to publish the reply.
A newspaper can publish a full retraction and still refuse to publish the reply. Then the right of action is not extinguished and the court — if it finds for the complainant — will certainly take the decision not to publish the reply into consideration when assessing the overall damages suffered by the plaintiff.
Senator Fraser: Did you see, in your reading of the American convention, any comparable provision that would allow for a similar conclusion to be reached in this case?
Mr. Bantey: No, I have not seen that.
Senator Fraser: Article 14(3) states that:
For the effective protection of honour and reputation, every publisher, and every newspaper, motion picture, radio, and television company shall have a person responsible who is not protected by immunities or special privileges.
Have you thought about what on earth that means?
Mr. Bantey: That would probably mean that there would be some sort of ombudsman who would deal with the complainant on a privileged basis; who would negotiate, for example, the terms of the reply, the editing of the reply. That is the only conclusion I can reach. This would be a person mandated to deal with the complainant before the matter goes to court; and that person, and those discussions, would be entitled to all the full privileges and immunities. In other words, that person could not be called to testify about his dealings with the complainant. That is the way I see it. There is a similar provision in the French act.
Senator Fraser: In your remarks you asked: How can we distinguish between statements of fact and statements of opinion? You said that sometimes it is not clear. Could you tell us what you meant by that?
Mr. Bantey: In any op-ed column, a number of statements of fact and statements of opinion will be intertwined. For example, there will be an underlying sub-stratum of facts, on which the writer will base his opinion. If the facts are wrong, that is one issue, but the opinions themselves, as long as they are related to the facts, should be given some sort of constitutional protection. In a free and democratic society, I think all opinions, short of those barred by the Criminal Code, no matter how offensive or vulgar, should be protected.
It is difficult to establish the distinction between a statement of opinion and a statement of fact. Sometimes it is obvious: ``the sky is blue'' is a statement of fact, while ``this is the best wine I have ever tasted'' or ``President Nixon was the worst President of the United States'' are statements of opinion. In that latter statement, there is an underlying fact: Nixon was the President of the United States. However, the statement that he was the worst president of the United States is an opinion. Both fact and opinion are intertwined and it is impossible to distinguish them. That is why I find it objectionable to have an automatic right to reply to opinions. However, how do we restrict the right of reply to statements of fact? How will we make that distinction? It is virtually impossible to do that.
Senator Fraser: Another example might be where facts are so selectively chosen as to end up conveying an opinion. To take the example of Mr. Nixon, the ``jowly, reclusive, snarly man who had to flee from office so he would not be impeached,'' or ``the brilliant peacemaker who had a breathtaking command of statesmanship and vision of a new world order,'' you could make either of those arguments on factual grounds. Do you see what I am saying? Sometimes facts are opinions.
Mr. Bantey: Sometimes the distinction is blurred and it is impossible to draw the line.
Senator Fraser: Article 13 on freedom of thought and expression provides that the exercise of that right shall not be subject to prior censorship. We have had some suggestions that some Canadian law would be affected by that, notably propaganda and obscenity provisions, as well as some of the publication bans and limitations on media access to certain judicial proceedings. Have you thought about that?
Mr. Bantey: The Supreme Court of Canada has already decided that the provisions in the Criminal Code dealing with hate crimes are constitutional and, even though they infringe on section 2(b) of the Charter, that infringement is justified in a free and democratic society. I can certainly live with that decision, because it prohibits vile opinions and behaviour.
You mentioned publication bans. A number of publication bans in the Criminal Code are unconstitutional, especially since the decision of the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp. in 1994.
Why is there a publication ban at a preliminary inquiry? It is ostensibly to protect the accused's right to a fair trial; however, publicity at a preliminary inquiry in the United States, for example, has never been deemed to hinder the accused's right to a fair trial, because usually it will take place months before the trial.
There is a very easy alternative to an outright publication ban. When the case comes to trial, counsel can ask potential jury members if they have been influenced by any publicity or if they are familiar with the case. If a potential juror answers yes, then he or she can be excluded from the jury. There are alternatives to publication bans and that is what the Supreme Court of Canada encouraged in Dagenais. The court said that, before a court imposes a publication ban, it should ensure that there are no other alternatives available, because a publication ban is inherently a violation of freedom of speech.
Senator Fraser: Some publication bans are built into the law, for example, the publication of the names of young offenders who are before a youth court.
Mr. Bantey: Correct. The courts have so far decided that this, too, is a justified infringement of freedom of speech.
Senator Fraser: Under this, would we still be able to ban the publication of those names?
Senator Beaudoin: That would be a matter for interpretation.
Mr. Bantey: It suggests it shall not be subject to prior censorship. If that is the case, then under this legislation, the burden will be on the accused to prove that he is entitled to a publication ban, whereas now, it is the opposite. If an accused asks for a publication ban, it is automatically granted.
Senator Rossiter: Could we not reserve in the case of a juvenile?
Senator Fraser: We could suggest reservations with respect to Articles 13 and 14. However, that would raise the other difficulty with which we have wrestled. Do we want to go down the road adopting the sections of the convention that we like but not the ones that we do not like? Is that a precedent we want to encourage?
Senator Beaudoin: In the area of freedom of expression we are very generous, because we are a democracy. We have the right to be wrong, if I may say.
Senator Fraser: Long may be it thus.
Mr. Bantey: The notion of prior censorship is similar to the notion of prior restraint in the United States — that no government shall restrain freedom of speech without a hearing in the proper forum and without it being authorized by a judge. In other words, there should be no injunction or prior prohibition to publish.
Senator Fraser: The classic example of that, if memory serves, would be the case of the Pentagon papers and Daniel Ellsberg, where the government tried to ban publication of the papers before anyone knew what was in them.
Mr. Bantey: That is right, senator. The government's argument was that the publication of Pentagon papers would jeopardize national security. The Supreme Court came to the conclusion that it would not, and that any prior restraints would be unconstitutional.
Senator Fraser: Do you know of similar cases in Canada?
Mr. Bantey: There are many such cases in Canada. For example, in Quebec, we will often see citizens applying for a provisional injunction to ban the broadcast of a television show they know will be negative and will affect their reputation. They believe that the contents of the broadcast are false and erroneous, so they seek a publication ban, an order from a judge in chambers banning the prohibition for a limited period of time until a judge is seized of dealing with the case on its merits. Courts in Quebec have consistently refused to grant such injunctions because they constitute prior censorship. The courts have concluded that only in the most manifest of cases, when it is clear that the defendant would have no defence whatsoever, will an injunction be issued. There are very few cases where a defendant will have no defence whatsoever in a libel case.
Senator Fraser: You are not as concerned about Article 13. However, you believe Article 14 is counter to the Canadian Constitution, the Canadian Charter of Rights and Freedoms?
Mr. Bantey: That is my humble opinion, senator.
Senator Fraser: We asked you here to give your expert opinion, Mr. Bantey.
The Chairman: Following the comments of both Senator Beaudoin and Senator Fraser, would you recommend that we put in an interpretive declaration or reserve on Articles 13 and 14?
Mr. Bantey: I would certainly recommend it with respect to Article 14, Madam Chair.
Senator Beaudoin: You would recommend a reserve?
Mr. Bantey: Yes.
Senator Beaudoin: You are not ready to take a risk. I am quite ready to take that risk. It is freedom of expression.
Senator Fraser: We want to protect freedom of expression, senator.
Senator Beaudoin: No, I want to protect the freedom.
Senator Fraser: I agree. Therefore we must reserve on Article 14.
Senator Beaudoin: I would not accept any reservation. Our Supreme Court is rather liberal, indeed, generous in the field of freedom of expression.
Mr. Bantey: It is not as liberal as the U.S. Supreme Court. For example, a public figure in the United States can only sue if there is actual malice. That is not the case in Canada. In New York Times v. Sullivan, the U.S. Supreme Court said that, to foster vigorous debate in the political arena, a public official should not be allowed to sue unless he can demonstrates actual malice on the part of the news media.
Senator Beaudoin: Do you say that the U.S. Supreme Court is more generous than our Supreme Court in the field of freedom of expression?
Mr. Bantey: Absolutely, senator. They are light years ahead of us.
Senator Fraser: Surely the difficulty will be that, if we do not take a reservation on Article 14, we will be liable to judgments of the Inter-American Court of Human Rights. They may not hold anything like our views on the freedom of the press.
Senator Beaudoin: I am somewhat surprised by that. We had a long debate on hate propaganda. The Supreme Court is now more liberal. The new Chief Justice of Canada, Madam Justice Beverley McLachlin, is very generous. I am surprised to hear that our Supreme Court remains less generous than the present U.S. Supreme Court.
Mr. Bantey: There is no question of that in my mind. For example, an outrageous statement to the effect that a politician is a Fascist would benefit from absolute protection under the First Amendment and under the rulings of the Supreme Court of the United States. However, it would not be as clear in Canada if one were to call a politician a Fascist. That is clearly an opinion. There may be underlying facts.
An opinion such as that, no matter how outrageous, would be protected in the U.S. In Canada, it is not clear that it would be. The tradition is quite different.
Senator Beaudoin: I agree with that. The tradition is different.
Mr. Bantey: The New York Times v. Sullivan ruling prevents a public figure from suing. The definition of ``public figure'' is very large. The burden is on the public official to demonstrate that there is actual malice on the part of the defendant.
Senator Rossiter: Intentional?
Mr. Bantey: They must prove intentional deed or reckless disregard for the truth. That is a heavy burden to satisfy in a court of law. Therefore, you rarely see public figures in the U.S. succeeding in libel suits.
The Chairman: You have certainly given our committee much room for thought on Article 14. Thank you very much Mr. Bantey for your presentation.
Mr. Bantey: Thank you.
The Chairman: We now welcome Professor Joanna Harrington from the Canadian Lawyers for International Human Rights, otherwise known as CLAIHR. CLAIHR asked to appear, and we gladly accepted its request. Please proceed with your presentation, professor.
Ms. Joanna Harrington, Assistant Professor, Faculty of Law, University of Western Ontario, on behalf of Canadian Lawyers for International Human Rights: Thank you, senators, for your kind invitation and your acceptance of our desire to appear before you. I appear on behalf of an organization known as CLAIHR, Canadian Lawyers for International Human Rights, a non-profit, non-governmental association of lawyers, law students and other Canadians that has been around since 1992, and which is involved in promoting and protecting human rights. We often put our students through internships to raise awareness and education in international human rights and exposure to international human rights.
I believe my written submission on behalf of CLAIHR has been circulated. I will cover only the highlights and allow time for questions and further examination of the issues before you.
The Chairman: For the benefit of committee members, you have received the English version because the professor will be presenting in English. The presentation will be translated.
Ms. Harrington: I apologize for my monolingual skills.
CLAIHR welcomes the committee's inquiry into the adherence to the American Convention on Human Rights. We as an organization of lawyers interested in international human rights are in favour of Canada's adherence to the American Convention. In particular, we feel that this serves to strengthen the treaty system within the inter-American region and adds greater legitimacy to the role of the Inter-American Court of Human Rights.
We do, however, have some concerns with respect to the convention. We see these as challenges that can be overcome. We mention them now because we believe that they need to be addressed at this time as you consider adherence, rather than after the fact.
In my presentation, I go through the inter-American system and highlight the fact that it is a system based on two documents, the American Declaration on Rights and Duties of Man of 1948 and the American Convention on Human Rights of 1969. I also highlight how the system is built on two institutions, so it has two overlapping instruments and two overlapping institutions, the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.
I will not go into further detail, as I know that previous witnesses have gone through the system in-depth. I will say, though, that CLAIHR would highlight the fact that, in our view, it is crucial to make it clear that Canada is already part of this system. We are already part of the inter-American human rights regime through our membership in the Organization of American States. Through the American Declaration on the Rights and Duties of Man, Canadians or individuals in Canada can bring petitions to the Inter-American Commission on Human Rights. That is currently taking place. Adherence to the American Convention on Human Rights, in our view, adds coherence or completes the system. It will allow complaints to go forward to the court and it will involve the court within the inter-American system, to which Canada is a party.
With respect to specific issues on Canada's accession to the American Convention on Human Rights, I would point to the fact that those countries within the Organization of American States that are not parties are predominantly the English-speaking countries of the inter-American region, or the western hemisphere, that is, obviously, the United States and Canada, as well as the English-speaking former colonies of what we call the Commonwealth Caribbean. CLAIHR does take the view that, were Canada to become a party to the American Convention on Human Rights, it would be showing some leadership among the English-speaking member states of the region known as the western hemisphere within the Organization of American States, the regional agency responsible for this region.
On page 3 of my submission, at paragraph 14, I make this point with respect to who is and who is not a party to the American Convention on Human Rights, and I note the English-speaking countries that are not a party to it. I also note that Trinidad and Tobago has withdrawn its ratification of the American Convention, and that is of some concern.
Our submission is broken down into Parts A and B. Part A is a summary of the reasons why we think we should be a part of the system. Part B illustrates some of our concerns.
In summary, we see adhering as part of Canada's good human rights reputation. For us, it is an omission that should be corrected. Canada has been a member of the Organization of American States for over a decade and, yet, we are only partly a member of the inter-American human rights system. It is a matter of coherence and being a full participant in the Organization of American States.
We also see it as important to the inter-American human rights regime as a whole. As we have seen in the European regional human rights system, Europe-wide ratification of the leading treaty and support for that court has solidified what is probably the best international human rights court in the world, the European Court of Human Rights. This Europe-wide ratification adds legitimacy and strength to the system. We argue that the same thing needs to be done for the inter-American region, which of course borrowed from the European system. In fact, it modeled itself on the European system. There is a potential for the system, and we believe that, if Canada were a full party, that potential would expand.
It is clearly CLAIHR's view that it is not good enough just to adhere. You cannot just sign something and treat it as an empty promise. It is important to implement the treaty both regionally and domestically. There is no point signing international treaties if they have no force or effect or are of no value at home.
That leads to concerns that this committee has addressed previously with respect to certain rights. I know this committee has already heard testimony about concerns regarding the right to life in the American convention and whether a reservation or interpretive declaration is required. CLAIHR does make the point at paragraph 26 of our submission that the actual wording of Article 4 on the right to life may not be of concern, as others have said. However, at paragraph 27, we do say that we do think, for the purposes of clarity, this issue should be addressed.
I know the committee has considered whether it should be a declaration or reservation. In my view, international law looks at substance over form, so whether you call it a declaration or a reservation, you must look at what you are in fact doing. If you are purporting to modify or amend the terms of a treaty, purporting to make it a condition or opt out, it will be seen as a reservation. At the end of the day, while human rights lawyers do not like to see reservations to human rights treaties, we favour clarity on this issue and would be in favour of a reservation.
On the last two pages of my presentation, I talk about the necessity of implementing.
Lastly, I will raise an issue that has not been addressed in committee before, and that is some of the practical concerns about litigating in the inter-American system. It is quite difficult. There are resource implications. The system clearly does not have the same resources as the European Court of Human Rights. As a result, access to case law can be problematic. For example, there is no subject-matter, topic-based index. It is difficult to find current jurisprudence of the inter-American system. Older subject indexes that were prepared by NGOs, by professors and law students together, are available on the Internet, but no consistent, current index has been prepared by the actual organization.
Some decisions are still available only in Spanish. I know Professor Shelton told you that she had trouble finding some of the documents in French. I have had the opposite trouble and have found cases that are only in Spanish. Just two weeks ago, I was in the Caribbean working on a case that required that I have access to a leading international court case on the mandatory death penalty that was decided several months ago by the Inter-American Court of Human Rights. As of two weeks ago, the president's decision was still only available in Spanish.
The official languages of the OAS are Spanish, French, Portuguese and English and that creates a practical difficulty in the system which will, in time, be overcome. It is a part-time system, and that has led to frustrating delays for litigants. Delay is a general criticism of international human rights bodies.
CLAIHR would point out that Canada is already part of this system. Individuals in Canada already litigate under the inter-American system; we are just not fully a part of the system. It is also important to note that there are other treaties within the inter-American system to which we are not a party. There is a certain lack of coherence in Canada's membership within the OAS. For example, there is a protocol, an additional treaty, the American Convention on Economic and Social Rights which would mirror our current obligations under the UN treaty called the International Covenant on Economic, Social and Cultural Rights. That is not strictly within the terms of this committee's consideration but, nevertheless, it is related.
I will also point to two other treaties as examples of contributions that this regime is making. One is the first international treaty on discrimination against persons with disabilities. The other is the inter-American treaty specifically on violence against women.
For the reasons I have mentioned — credibility, consistency and coherence — it is CLAIHR's view that Canada should adhere to the American Convention on Human Rights. However, we recommend that Canada put in a reservation or interpretive declaration with respect to the right to life in Article 4. We recommend that Canada make suggestions and recommendations with respect to implementation. We would urge, for example, the training of lawyers and judges in the inter-American system, and that we use the scrutiny of this committee as a platform for publicizing the inter-American system in Canada.
Last, we have pointed to the need for resources to improve some of the practical aspects of being a part of the inter- American system.
Those are my submissions in brief. CLAIHR's real concern is coherence and fully being a part of a human rights system that is applicable to this region, and of which we have been member since 1990.
Senator Beaudoin: On page 8 of your presentation are four recommendations. We studied the first one a few months ago. I understand that, regarding Article 4(1), our reservation is based on the decisions of the Supreme Court on abortion.
Ms. Harrington: That is correct.
Senator Beaudoin: We have already stated that we would have a reservation, although some states do not have reservations in this. I understand the problem.
What about the debate that we had previously with the other expert witness? Do you agree or disagree?
Ms. Harrington: With all due respect, I disagree. We must start with an examination of the text of Article 14, the right of reply. It is crucial to point out that the right of reply was described as a mandatory right. Article 14(1) states that the state is so required ``under such conditions as the law may establish.'' It is not as absolute as the previous speaker had mentioned. The provision in the treaty refers to anyone injured by inaccurate or offensive statements having a right to reply, but it goes on further to say, ``under such conditions as the law may establish.'' That is referring to domestic law.
I would also highlight the point made by Professor Shelton that injury by inaccurate or offensive statements would be decided by an objective test, rather than a subjective test. It is not the person thinking he or she is offended that automatically triggers the right. The argument is that all of these rights are typically interpreted in an objective way, rather than in a subjective way.
Last, in international human rights generally, these conventions show the notion of balance, of proportionality. We see that in the common law as well. One should not use a sledgehammer to crack a nut. We apply the same balance to human rights conventions, whether the European Convention on Human Rights or the American convention. One does not have an absolute right to free speech; it must be balanced against the rights of others. That would be the spirit in which these provisions would be interpreted.
Senator Beaudoin: You seem to say that we should modernize our implementation of the treaties system. In 1937 the Privy Council said that, to change the law in Canada after a treaty, we have to legislate. However, we do not do that, or at least not very often. You agree that we should modernize our system, do you not?
Ms. Harrington: Yes. Here I speak on my own behalf since I have not consulted with every member of CLAIHR. There have been debates in the literature about a need to reconsider the Labour Conventions case. In another comparable federation, Australia, the high court said that, if the federal government has the competence to enter into a treaty, then the competence to implement the treaty must surely follow. There is some sense to that.
However, on the occasions when the Supreme Court of Canada has reconsidered the Privy Council's view, the court has not taken up that view. We are still stuck with a division in implementation.
Senator Beaudoin: Australia did change their system. They gave ratification to the central authority, the federal authority. In my opinion, Canada should not do that. Ratification is not good enough for us because we have two systems of law. There are still obligations to legislate to give effect to the treaties. We have to recognize the division of powers. In Australia, everything is common law. In Canada, not everything is common law. Ratification is good but not enough. There should be implementation according to the division of powers.
Ms. Harrington: Yes. I would not want my comments to mean that I am disrespectful of the division of powers in Canada. It is a difficult issue in Canada as to how we implement treaties. It is clearly a problem. As your own report rightly said, we do not want to have promises to keep. We do not want to have promises on the international record that are not being implemented domestically. To best achieve that, it is important to recognize that international human rights law gives you freedom in how to implement domestically. We can do it through administration, programs, legislation or the Charter. It need not be constitutional or statutory. It can be achieved through other means. There are means of cooperation between the provinces and the federal government as to how to implement these responsibilities.
From an international law point of view, yes, the buck stops with Canada as Canada, rather than with the individual constituent units of the state.
The Chairman: I understand that you have another colleague from CLAIHR with you. Would you care to introduce him to us?
Ms. Harrington: With me is Mr. Alan McChesney, a member of the board of directors of CLAIHR. I had hoped he would sit beside me to prompt me.
The Chairman: Please do so, sir.
Senator Fraser: With regard to Article 14, Ms. Harrington, I would come back to the question raised by the previous witness: Who is to determine what constitutes an offensive idea? How can you possibly set out a law? How can you possibly have laws that establish conditions under which ideas may be considered offensive? To me, that is an offensive idea, if I ever heard one, but that is what this would have us do.
Ms. Harrington: It is the nature of such a document as an international human rights document or a domestic bill of rights to have generally phrased provisions that clearly can lead to concerns about their interpretation. However, when we look at how they are interpreted in concrete cases, at least when we look at other bills of rights and other international human rights treaties, then the concern subsides.
Senator Fraser: Are there any examples of laws anywhere that make it an offence to publish an offensive idea?
Ms. Harrington: I am thinking along the line of obscenities and pornography, but I can see what you are getting at.
Senator Fraser: That comes under Article 13. We are now dealing with Article 14, which is there for a reason, and that is because Article 13 was not considered sufficient.
Ms. Harrington: I can only say that I would have to look into the issue further.
Senator Fraser: Forgive me if I sound pent up. You will gather that this is something I do care about, but I also take seriously the points you are making.
Ms. Harrington: I am not appearing as a free speech expert.
Senator Fraser: If you have any further thoughts on that issue, I would be grateful to hear them.
Ms. Harrington: I would point out again that it states, ``...under such conditions as the law may establish.'' Presumably, it is under such conditions as Canada, once it becomes a party, may establish.
Senator Poy: Do I take it that the main problem CLAIHR has relates to Article 4(1)? Obviously you do not have a problem with Articles 13 or 14. Would Article 4(1) be your major obstacle?
Ms. Harrington: In terms of substantive rights in the convention, yes. Our overall concern is that we do not just ratify into thin air, but that we ratify and actually implement, so we have made recommendations with respect to the need for publicization and education. Our theme is: If you are going to do it, then do it right.
Senator Poy: You also mention there should be clarification, instead of just reservation. If you want a reservation regarding Article 4(1), you also want clarification of what the reservation means. Is that what you were saying?
Ms. Harrington: I know that people have testified before the committee about an interpretive declaration. In fact, I know that one witness testified about something called a ``conditional interpretive declaration.'' At the end of the day, international law looks at substance, not form. It does not matter what you call it; what matters is what you do with it. In that sense, I am arguing for clarification of the intent. If your intent is to reserve on Article 4, should it be interpreted so as to create a difficulty with Canadian abortion law, then CLAIHR's position is that you should be clear that that is what you are doing. It does not help to confuse things.
Senator Poy: Do I understand we do not have a law on abortion?
Ms. Harrington: That is correct.
Senator Poy: What do we do, in that case? We do not have a law.
Ms. Harrington: We have given you a suggestion as it relates to what happened in Mexico, where they put down what they called a declaration. My point is that it does not matter what you call it, but when you are making a statement at the time of adherence you should make clear your intention behind the statement. When I say ``you,'' I am referring to the Government of Canada.
Senator Poy: In light of the fact that we do not have a law and there were problems in even having a law passed on abortion, will we not be creating bigger problems by having clarification in this case?
Ms. Harrington: I do not think so. The history of challenges to Roe v. Wade by lawyers taking the Baby Boy case to the inter-American commission is well known. Members of the committee have heard about this. It is clear where the commission was going with respect to that. We are merely putting down, which is why we could argue it is a declaration, a statement to preserve what we understand the position to be following the Baby Boy case. What I was trying to get at is that it does not matter what you call it; you want to be clear as to your intention. International law is not tricked by statements of declaration versus reservation.
Senator Poy: I agree with you that there is no point in doing anything unless there is substance behind it, and that there is money behind it to ensure it works.
Senator Beaudoin: That is a most interesting question. It is true that the Supreme Court set aside the provisions in the Criminal Code related to abortion. However, that does not mean — although it is very unlikely — that one day a government will not decide to legislate in that field. It is up to Parliament to legislate criminal law. Of course, since the decisions of the Supreme Court in the field of abortion, neither the Conservatives nor the Liberals have said they will intervene. They will leave it as it is.
However, many other countries do laws relating to abortion. We studied Article 4(1) in depth several months ago. We concluded that, if we adhere to this convention, we would probably be under a certain obligation to have some reservation on this. That is not the end of the world. Why not?
As far as Article 4 and the question of the right to life is concerned, I think we have probably heard enough.
On the other subject we are hearing about tonight, we do have a reservation. Speaking for myself, I would take a certain risk because I am confident that our Supreme Court will deal with this problem. What is your conclusion? Would you suggest a reservation?
Ms. Harrington: Are you asking about the right to reply?
Senator Beaudoin: Yes.
Ms. Harrington: No. I would not. It has to be recognized that Canada has a different legal-cultural approach to freedom of expression. We are not the same as the United States, and nor are certain other countries. There was mention of the Sullivan principle, but that is not the position followed in Reynolds by the House of Lords in the U.K, nor followed by the Privy Council in Lange, a New Zealand case. There are different legal approaches. Canada does not necessarily have the same approach as the United States with respect to freedom of expression. My own feeling is that Canada is more akin to the European Convention on Human Rights approach, which makes sense, since the Charter borrows from the European convention the idea of where you have a right, and then you have a reasonable limitation that is justified in a free and democratic society. That is found throughout the thrust of the European system and the international system as it is throughout our Charter.
I am not as fearful as the previous speaker with respect to the implications for the freedom of expression and the right to reply in the American Convention on Human Rights, which borrows from the European system.
Senator Beaudoin: This would not stop you from suggesting an adherence to the convention.
Ms. Harrington: That is correct.
The Chairman: Ms. Harrington and Mr. Bantey, thank you for your presentations this evening.
The committee adjourned.