Proceedings of the Standing Senate Committee on
Human Rights
Issue 3 - Evidence, March 31, 2003
OTTAWA, Monday, March 31, 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; and to consider the report of Professor Nicole LaViolette on the principal international human rights instruments to which Canada has not yet acceded.
Senator Shirley Maheu (Chairman) in the Chair.
[English]
The Chairman: Professor McEvoy, I would ask you to begin, please.
Professor John McEvoy, Faculty of Law, University of New Brunswick: Honourable senators. I trust you have our written submission in hand.
My presentation will address four points. There is a table of contents available that may help in identifying the order in which we will be presenting.
In the article that we wrote some time ago, we addressed three areas of concern as to why Canada might not wish to accede to the American Convention on Human Rights, ACHR. Those concerns regarded freedom of expression and the right of reply under the convention, rights in relation to property, and the right to life, particularly in relation to abortion. I shall be addressing those three issues. I shall also be making a suggestion to the committee reflective of the present position of the Irish Human Rights Commission.
First, I shall speak to the right of reply. I would ask you to turn to page 6, point 3.3.1, of our written submission, if you wish.
One of the unique features of the ACHR is the right of reply under article 14, which must be read in conjunction with the article regarding freedom of expression. The right of reply exists to protect the human dignity of an individual, to protect their honour and personal reputation. One may think of this in terms of defamation.
We have indicated that there is not probably a real issue in Canadian accession to the convention solely on the basis of the right of reply — the reason being two Supreme Court of Canada cases. I forgot to mention these in the brief, but will mention them now.
The Slaight Communications decision was in the labour law area. In that case, an employer was ordered by an arbitrator to write a letter of reference on behalf of a dismissed employee. The Supreme Court held that, of course, that violates freedom of expression, but it is a limit on that freedom demonstrably justified in a free and democratic society.
Also of note is the case on tobacco advertising, RJR-MacDonald, in which the Supreme Court held that unattributed warnings in relation to health on cigarette packages violated section 2(b) of the Charter and was not justified under the section 1 analysis.
However, the attributed warnings are acceptable. Here you have a right of reply in the media. Of course, that right of reply will identify the particular individual. It will be identified as an exercise of the right of reply, just as we see corrections in newspapers and other media regularly.
The right of reply is not inconsistent with freedom of expression under the Canadian Charter of Rights and Freedoms, particularly in its justification under section 1. We bring that to your attention.
At page 7 of the brief, we refer to article 21, which is the right to property. We identified this as a concern in relation to socialist governments in Canada, and perhaps, elsewhere in the hemisphere, that may be very concerned about the right to property. If you look at the details of article 21, which is before you in that particular paragraph, you will see that it is a right to the enjoyment of property and compensation when that property is taken in the interests of the collectivity or the state.
When you look at the details, there does not appear to be an inconsistency with the basic law of Canada in relation to expropriation of property. Therefore, we do not have a concern with that. We understand the political decision in relation to recognition of a right to property. However, in terms of consistency of Canadian law, we are not overly concerned about that.
I would ask you to turn to page 12, please. The protection of the right to life is an ongoing concern. Article 4.1 of the ACHR expresses the right to life, in general, from the moment of conception. That phrasing is very important. There is a view among some members of the legal community, and women's groups, in particular, that this will require the protection of the fetus from the moment of conception, which means of course the prohibition of abortion. Is that a realistic interpretation?
In our article, we raised that issue, and then in a footnote we referred to the so-called Baby Boy case. In this particular element of our presentation, at 3.3.6, I have included not only the provision from article 4.1, but also an extensive excerpt from the decision in the Baby Boy case.
The Baby Boy case was presented by a group of individuals from the United States that opposed abortion. The baby boy had been aborted, an aborted fetus. Right to life individuals claimed that the death of this life in being was a violation of the right to life under the American Declaration. In interpreting the American Declaration, the Inter- American Commission on Human Rights looked at the travaux preparatoires and the interpretation of article 4.1 of the American Convention on Human Rights.
On page 14 of the document before you, you will find in the preliminary paragraphs the commission referring to the negotiations that led to the adoption by the drafting committee of the ACHR.
The argument had been made that, ``in general, from the moment of conception'' was a prohibition on abortion. This was the argument that was presented on behalf of Baby Boy by those who brought the complaint. The commission in these paragraphs discusses in detail the placing in of the phrase ``in general, from the moment of conception,'' and the arguments to take it away.
I turn your attention to the bottom of page 14, paragraph 30 in the excerpt. I will read that portion. Having given the detail of the history, the commission says:
In the light of this history, it is clear that the petitioners' interpretation of the definition given by the American Convention on the right of life is incorrect.
Again, their position, their argument, was that abortion was proscribed, that ``from the moment of conception'' meant exactly that. The commission looked to the history of the phrase ``in general,'' with the recognition that abortion was permitted in member states at this critical time.
I shall continue the quote:
The addition of the phrase ``in general, from the moment of conception'' does not mean that the drafters of the Convention intended to modify the concept of the right to life that prevailed in Bogota, when they approved the American Declaration. The legal implications of the clause ``in general, from the moment of conception'' are substantially different from the shorter clause ``from the moment of conception''...
They are simply stressing the qualifier ``in general.'' The Baby Boy case determined that the United States was not in violation of the American declaration.
I have reproduced this to show the discussions that would leave those who have doubts with some level of comfort that abortion will not be proscribed simply by Canada adhering or acceding to the American Convention on Human Rights. We would not be in violation, by our present abortion law.
The final point I want to address is at page 24, an alternative. In the appendices, I have reproduced the key provisions from the Human Rights Commission Act, 2000, as enacted by the Dáil in Ireland. In essence, the parliament of Ireland conferred upon the human rights commission the authority and jurisdiction to investigate complaints by any Irish citizen of a violation of any human right under any convention to which Ireland is a state party.
If you have concerns about acceding to the American Convention on Human Rights, this is a way, perhaps, to move forward and to provide a level of comfort. That is why it is presented as an alternative, that you could recommend an amendment to the Human Rights Code to provide that the Human Rights Commission could investigate complaints that federal Canada is in violation, not the provinces, of a human rights instrument and you could include the then- not-acceded-to American convention. That would provide, domestically, a comfort level through the interpretation of that instrument by our own procedures and processes. Eventually, perhaps, Canadians would agree to accede to the American Convention on Human Rights. That comfort level may well be a missing factor. We present that solely as an alternative.
The main thrust, as you will see, is that we are in favour of accession to the American convention.
Professor Don Fleming, Faculty of Law, University of New Brunswick: Our study is a cursory one, but I think that it has made us substantially certain that none of the rights contained in the American Convention on Human Rights pose any threat to Canada. The wording contained in them, as Professor McEvoy has mentioned in terms of right of reply, right of property and right to protection of life, certainly allow sufficient leeway that Canadian law, as it presently stands, would not be in violation. Our short study establishes for the other contentious rights that that is also the case. I will not bother reviewing those rights, unless you have specific questions on them.
I should like to point out that unique to the ACHR is the federal state clause. Normally, when Canada wants to ratify a human rights convention, it seeks to obtain the concurrence of all provinces. It has not always done so, but it has done so most frequently. The federal state clause eliminates the need for the federal government to do that. It merely means that the convention will apply to the areas of Canada where the federal government has jurisdiction or where any province that decides to obligate itself to those rights would have application as well.
When you look at the ratification of this convention, you will see that it is unique from other conventions on human rights that Canada has ratified because of the federal state clause.
Others were concerned that a large number of cases in the inter-American system deal with the massive, flagrant violations that military and authoritarian regimes have committed and that the Canadian input would not be valuable to it. Again, our study shows that, when the Charter first came into being and when the American declaration first came into being, that certainly was the case. The Inter-American Commission on Human Rights was primarily concerned with massive and flagrant violations of rights such as massive killings, disappearances, et cetera, of military and authoritarian regimes. That is no longer the case. There has been a move towards democracy in many of the states of Latin America and in the Caribbean. The statistics of cases now show that the normal concerns of western democracies apply. We believe that now is the time, more than ever, to ratify this convention because the Canadian experience can be used as a valuable learning tool by the new democracies that are still struggling for stability.
There is also an opportunity under the Organization of American States' American Convention on Human Rights to declare that we accept the jurisdiction of the Inter-American Court of Human Rights. Again, our examination of the jurisprudence of the court indicates that we should indeed declare that we recognize the jurisdiction of that court. Canadian law complies sufficiently with the inter-American human rights obligations that we have already undertaken and that we would undertake if we were to accede to the convention. It would be foolish for us not to accede to the jurisdiction of the court. We have done so to the Human Rights Committee under the optional protocol of the International Covenant on Civil and Political Rights. We should do so here.
We also suggest that, concerning the statistics of interstate complaints, we declare the right of interstate complaint. That merely means that another state that has made a similar declaration can complain about an alleged Canadian violation of human rights. A similar provision exists with the International Covenant on Civil and Political Rights. I do not believe that Canada has made a declaration under that body, but I think that under a regional convention it would be more useful for Canada to do so.
Therefore, our conclusions and recommendations are that the substantive rights of the convention would not interfere or would not substantially harm Canadian interests because our laws are in compliance. We can do so without reservations or declarations. We should ratify not only the convention but also declare the jurisdiction of the court, and we should declare the interstate petition.
We have prepared a fairly extensive comment on reservations and declarations because someone with whom we were speaking on the committee asked for a difference between reservations and declarations. I shall leave that for questions from senators.
The Chairman: Thank you, professor. I was a little surprised to learn how much you had reversed your opinion of 1998. Although I was not a member of the committee at that time, I have notes here that indicate your concern that Canada was not present when the convention was drafted. We played a founding role with the development of the United Nations' human rights instruments. We contributed a great deal to the development of the rights and the process. We had no direct influence on this one. What brought about the change in your comments from your 1998 position?
Mr. Fleming: If I may answer that, I do not really think it is a change of position. We were in favour of ratification of the American convention when we wrote the article. We were approaching the situation from a different perspective.
On your comment about lack of input, I would make two observations. The first is that we have gone halfway to committing ourselves to the OAS human rights body. By ratifying the Charter of the Organization of American States, becoming a member of the organization, we are obligated to the American Declaration of the Rights and Duties of Man. There have been two cases before the commission dealing with Canada. As you look at the statistics, there have been 17 complaints against Canada. Some are still outstanding; some have been closed off.
By ratifying the Charter of the Organization of American States, we took a half step in terms of the human rights system. We should take that other half step. The distinction between the rights set out in the American declaration and the rights set out in the American Convention on Human Rights is not so dramatic that we cannot accept it.
The second point I would make is that we did not have an input into the drafting of the American Convention on Human Rights because Canada, for foreign policy reasons, was not a member of the Organization of American States at the time. However, the convention does refer to the Universal Declaration of Human Rights. It is patterned on the European Convention on Human Rights, and it is very closely akin to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The statement we make in the introduction to the background of this paper is that the ACHR is substantially similar to those with which Canada is already a party. In that sense, we have had an indirect connection with the development of this convention.
Senator Beaudoin: I am in favour of Canada accession to this organization. Personally, I do not have a problem with the convention.
However, I cannot see how we do not need a reservation for article 4, because the Supreme Court of Canada has stated very clearly that the fetus is part of the mother until it is born. When it is born, it is a human being. I remember this constitutional problem when we studied Bill C-43 in the Senate. It is the decision of the Supreme Court; and, of course, the decision of the Supreme Court in constitutional law is part of the Constitution of Canada.
I think we should say ``yes'' to this interesting convention, but with respect to article 4 it is my opinion that we will need a reservation. How can you reconcile these two opposite theses, that the fetus is a human being and the decision of the Supreme Court?
You may agree or disagree with the decision of the Supreme Court, but it is there. If we say ``yes'' to the convention, I think that we need a reservation. If you can convince me that we do not need a reservation, I would accept it; but I would like to know how you will come to that conclusion legally.
Mr. McEvoy: Professor Fleming will address the issue of the reservation. I will address the issue of Morgentaler.
Senator Beaudoin: Morgentaler is clear-cut.
Mr. McEvoy: It is clear-cut. The focus was on the psychological security of the woman as well as her physical security under section 7 of the Charter. The focus was not on the viability of the fetus or the state's interest in the fetus. It was the security of the person.
In the Tremblay v. Daigle decision, which you also alluded to, it was very clear that the father and the fetus do not have rights in relation to the mother's personal decision under section 7 to terminate her pregnancy. If that is the law of Canada — which it is, as you and the Supreme Court have indicated, so we all agree with that — what is the violation then? What is the inconsistency with article 4.1? That is the question.
It is for this reason that I very clearly gave the lengthier excerpt from the Baby Boy case in which the commission, in addressing the issue, rejected the argument that was raised, that is, that the State of Massachusetts was in violation of the American declaration in the protection of the right to life, that the right to life meant also what it meant in the convention, ``from the moment of conception.'' That argument was rejected by the commission. That argument focused not on the words ``in general,'' but simply on the phrase ``from the moment of conception.''
The commission said, look at the travaux preparatoires, look at the negotiations, look at the votes, and came to the conclusion that I read in paragraph 30 of the document from the Baby Boy case, in which the court rejects the argument presented on behalf of baby boy, recognizing that abortion is, and was then, a medical procedure that was available in many American states and that it was not the intention of either the declaration or the framers of the convention to abolish that.
So there is that balance. The key phrase is ``in general.'' With that phrase, you can live with abortion legislation under the American Convention on Human Rights.
Senator Beaudoin: Is it the commission that said that, not the court?
Mr. McEvoy: The commission, not the court, and there has been no further case before the commission on abortion.
Senator Beaudoin: I am ready to take the risk, albeit a calculated risk. We had many witnesses here, and finally we came to the conclusion that it would be very difficult. I am in favour of the adherence. I have no problem with that. I follow you on the federal clause as well. We used the federal clause. We believe in the federal clause. However, if a province does not legislate to implement the treaty in its field, the federal authority cannot do it for the province, because, thank God, we are a federation. We have to respect the division of powers.
Anyway, they are ready to accept that. That is not a problem.
Mr. Fleming: If I might add, Madam Chairman and Senator Beaudoin, you have to look at article 4.1 very contextually. It is broken up into four discrete elements. The first element says that states must respect the right to life, which Canada does. The second element says that the state must protect the rights to life by law. Again, Canadian law does that. The third element says the state must protect life ``in general, from the moment of conception.'' It is the insertion of the phrase ``in general'' that provides states with the opportunity to compromise or to legislate to meet other needs rather than merely the definition of life from conception. The fourth element of article 4.1 is that the state must protect individuals from arbitrary deprivations of life.
So with our Canadian law, even our Supreme Court of Canada decisions, rather than legislation allowing freedom of choice for women, it is not an arbitrary deprivation of life.
Senator Beaudoin: What about the third condition?
Mr. Fleming: The third condition is that the phrase ``in general'' has been interpreted by the Inter-American Commission on Human Rights to give states the opportunity to permit choice. You ask why the court has not heard the case. The court has not heard the case because the United States has not ratified the charter and has not submitted itself to the jurisdiction of the court. Neither has Canada. No federation has had a situation where it has been able to go to the court to get this issue determined.
Senator Beaudoin: What do you do with the sentence ``from the moment of conception''?
Mr. Fleming: There is a recognition under the American convention that life does begin from the moment of conception, but the protection of that life is to protect the life in general. There can be exceptions to the rule. The rule of choice is a legitimate exception because it is not an arbitrary deprivation of life.
Senator Beaudoin: What do you mean there is a choice? There is a choice or no choice.
Mr. Fleming: It is not arbitrary. Law provides it.
I would desperately hate to see Canadian government get tied up in the intricacies of this, even though it is clear in our minds that we do not need any kind of stipulation on accession to the convention about this article. There is nothing wrong with Canadian accession to the article with a so-called interpretive declaration about article 4.1 indicating what Canada accepts to be the interpretation of that rule. Even if the worst-case scenario of an absolute interpretation of the right to life from the moment of conception is made, Canada could make an interpretive declaration, rather than a reservation to the convention, which I do not think is necessary. We have to say there is one article that we want to indicate is an article that we interpret in a certain way.
Senator Beaudoin: I hope you are right when you say it is enough to have a declaration.
Mr. Fleming: If you read the Baby Boy case, the preparation of that article and the arguments as to why the term ``in general'' was put only for the section of the right dealing with the moment of conception, you will see the opportunities that can be made for legitimate argument there. We are as convinced as anyone could be.
Senator Beaudoin: I hope that you are right. I will not be surprised if the court disagrees.
Mr. McEvoy: One of the responses to be made is that there is an institutional inertia in every group. For 20 years, the commission has taken the position that abortion is not inconsistent with the right under article 4.1. It is almost like it is common law age of majority — it is 22 years old now. They have believed this. This is how they interpret the convention. That is why there have not been more complaints from the United States or other cases brought to the commission. This is their interpretation.
Therefore, if it went to the court, it would be a very different situation for a court, within a structure where there has been a long-standing interpretation upon which people have relied, to suddenly have the members of the court take a different interpretation. Those persons are inculcated in the same interpretation of the convention.
Senator Beaudoin: I am ready to take the risk, but you will need a very good lawyer.
Senator Kinsella: I must say that from the science of human rights perspective I think you are correct and I agree with you.
Part of the science of human rights is the politics of human rights; therefore, it seems to be from a political point of view. I use the word ``political'' in the large sense of the term. We have been attempting to get the concurrence from the provinces and the federal authority for Canadian accession since 1990. This is one of the obstacles that has been articulated before the continuing committee of officials responsible for human rights, which has been the only body that has been formally studying this.
Now that we have brought it out into the public, through the work of this committee, should we provide politically for the margin of comfort that provinces and some in the federal authority may wish to have? If the goal is to get Canadian ratification, a reservation or an interpretive declaration on this clause and on others might be prudent to do it. What do you say to that?
Mr. Fleming: I think that is a worthy goal. If Canada feels comfortable making a reservation or interpretive declaration in order to ratify the convention, I would have no problem with that.
Senator Kinsella: I do not want to stick to article 4; however, strictly in terms of provincial jurisdiction, what would be the provincial legislation involved? I address this to our constitutionalist. Why would article 4 of the convention be a problem in terms of provincial jurisdiction?
Mr. McEvoy: That would be under the Mental Health Act or Hospitals Act for the funding of abortion. There are a number of Morgentaler decisions since the main Morgentaler decision in which the funding was an issue.
Senator Kinsella: I am curious as to whether or not, in Ireland, the exhaustion of domestic remedy was built upon an Irish citizen having first gone to the Irish Human Rights Commission with a complaint using the European convention?
Mr. McEvoy: I cannot answer that in a technical way, because I have not gone to Irish law to determine how that is incorporated. In terms of a general principle, the exhaustion of domestic remedies, that is a remedy that is available from the human rights commission to the courts. I think the normal processes that are accepted in international law in relation to that issue would govern. This is a domestication of that international right.
Senator Kinsella: Professor Fleming, you have underscored the federal state clause. What you are telling us is that the way the federal state clause is written in the ACHR could be used; in other words, an order of the Privy Council for Canadian ratification would apply to federal jurisdiction, but not to the provinces.
Does there not exist equally in Canada a constitutional convention, since the time of the labour convention case in the late 1930s, that the federal authority will not enter into international treaties without the concurrence of a substantial number of the provinces?
Mr. Fleming: I would accept that there is such a convention, and I would hope that the convention would continue to be respected. However, in ratification of the Convention on the Rights of the Child, for example, Canada was not able to obtain the consent of Alberta. Canada nevertheless went ahead and ratified it.
I hope that the federal government would not be so thick-skinned, if I might put it that way, to decide to ratify a human rights convention without concurring with the provinces. However, in this case, it is potentially an exception to the rule. Generally speaking, in international law, states do not accept the inclusion of a federal state clause. It is a very rare thing to find in any kind of treaty.
I have a feeling the federal state clause was put into the American convention in order to assure that the United States could ratify it. No one was thinking of Canada at the time, because Canada not a member of the Organization of American States, for political reasons.
After proper consultation with the provinces, given the fact that the rights set out in the convention are not substantially different from the rights that Canadian provinces have already agreed to adhere to in other international human rights conventions, one would not be twisting the convention of obtaining provincial consent if one were to ratify without provincial consent, in this particular issue.
We have not addressed that particular aspect of the federal state clause in this paper, and it must be investigated further. I have a feeling that, given the rights that the provinces have already accepted in other international instruments, the attempt at consultation and the existence of a federal state clause, the federal government would not be going out of its way and infringing on provincial rights were it to ratify the convention even with no provincial consent.
Senator Kinsella: There has been a federal provincial study going on over this convention for more a decade. Has your provincial government advised the Prime Minister as to whether the Government of New Brunswick concurs in this ratification? Did we ever receive the information as to which provinces have agreed?
The Chairman: We have the information. It is not just one province that disagrees.
Senator Kinsella: However, some provinces have agreed.
In the American Convention on Human Rights, there is a provision that deals with the right of every citizen to participate in government. Some citizens of Chile filed a communication or complaint with the Inter-American Commission of Human Rights alleging that Chile was in violation of the convention because of the provision in the amendment to the Constitution of Chile during the Pinochet era that provided for the appointment of a certain number of senators rather than the election of senators.
In Canada, senators are not elected but rather are appointed. It is my understanding that that complaint has been declared admissible by the human rights commission. This is partly a constitutional issue, and we have Professor McEvoy here, and partly a convention question, and we have Professor Fleming here. Do you think Canada should make a reservation around that clause in the convention, or do you think we do not have to?
Mr. Fleming: Senator Kinsella, you have probably done more research on that particular element of the question than have Professor McEvoy or I. Thinking just off the top of my head and without benefit of careful research, the political situation of governance in Chile at the time of Pinochet was far different than is the situation in Canada. I had referred earlier to a transformation of a number of Caribbean and Latin American states to democracies. It began in the middle 1980s and accelerated in the 1990s. Those governments, some of which are fairly unstable, are struggling democracies. Chile certainly was not a democracy during the Pinochet regime. I would guess that if there is a case to be made there it is because political positions that determined the governance of the country were based on appointed persons rather than on democratic elections. I would guess the situation would not apply in Canada's case.
Should you wish some research done on that, I will gladly look into the issue for you. I cannot answer the question in the specific legal way that I should like to at present.
Mr. McEvoy: A finding of admissibility does not mean a finding of violation.
The Senate has a very important role in the Canadian constitutional order. That role is not to represent the people. It is the role of the House of Commons to represent the people. The role and the function of the Senate is to represent the regions and the provinces. Very often, that role has not been respected as it should have been. That role perhaps is not always recognized. That does not mean that we need to have elected senators, that Parliament needs to be completely reformed so that there are two bodies like the House of Commons. That is not the function.
The Chairman: The Inter-American Commission on Human Rights addressed this issue during its meeting with the committee in San Jose last September. We have a copy of that, which we can forward to you.
Senator Chaput: If I understand, you did have some concerns a few years back, but you no longer have those concerns. You said that if we did accede to the convention it would not be in violation of the present Canadian law. You said it would not substantially harm Canadian law. My question is the following: What would the greatest advantage to Canada of adhering to this convention, and what would be the greatest advantage for the average Canadian?
Mr. McEvoy: In the late 1980s, I had a research assistant for the summer. She was a Rhodes scholar from New Brunswick. She was well versed in a number of academic areas. I had asked her to search through decisions to identify law. She came to see me after two days to say that she did not want to read those decisions any longer because she was mentally exhausted from reading about disappearances and torture and death. That is what the cases were about in the 1980s.
If you turn to page 23 of our submission, you will see that that is no longer the reality of the human rights commission. At the top of that page, it says that 13 of the 29 admissibility decisions reported in the 2001 annual report involve alleged death or torture in custody, and I give you the list of states there. That is a real problem.
What is more important is that other issues are dealt with — banking and commercial law, freedom of expression, immunity of politicians, labour and employment law. The world has changed. They are no longer subject to the tyranny of dictatorships throughout South America. Canada has an obligation to play its part in the international community in this hemisphere, to appear before the commission and the court, and to have its voice in the interpretation of human rights in this region. Canada has an obligation to be a model for these other countries, so the people there can look to Canada as a source of inspiration and a model for them to follow in whatever small way we can. We can learn from them as well.
Our view has always been to Europe, because of the history of our early founding peoples. Our view is now much broader. Our population is more multicultural, and we have a role in this hemisphere. It is perhaps time that we took our rightful place. The hesitancy before was not so much about the content, because we simply expressed concerns. We did not draw a conclusion. The world has changed so much, and unless we are there in those institutions and bodies to support those countries, to have our role, then we are abandoning human rights in this hemisphere.
Senator Chaput: You said it would not substantially harm Canadian law. I am concerned about the word ``substantially.'' How could it harm Canadian law and not be substantial harm? Do you have an example?
Mr. Fleming: I think I made that comment. Perhaps I should have been reading from a script. I did not mean to harm; I meant to draw attention to irregularities in Canadian law. With the International Covenant on Civil and Political Rights, we have cases and recommendations that have gone against Canadian law. Ultimately, in the majority of instances, Canada has changed its law. Really, that is what a human rights treaty is all about.
Further, I would like to complement Professor McEvoy's comment on what value to Canada. He has mentioned that the OAS system has developed and it is now founded fundamentally on Western democratic rights and culture, and the Latin American and Caribbean countries are desperately looking for a state to be their guide. They cannot get it from the United States of America, which will not ratify these treaties, especially when there is some obligation they might have to meet to change their own laws. Canada is an ideal candidate to step in there.
I would also remind the committee — and again, it is in the conclusion to our paper, which I wish we had been able to present to you earlier than today. I take note of one element of that conclusion, and it is the observation that within the past few weeks the American dismay with the Security Council and its decision to invade Iraq without council authorization has posed a serious threat to the post-World War II multilateral system of international relations. Canada has long supported that.
Canada cannot compete with the United States regionally from any perspective other than the rights perspective. If we become involved in the Organization of American States, fully committed and fully involved in the Organization of American States from the human rights perspective, if we ratify the convention, if we declare the jurisdiction of this accord, if we declare the right of interstate petition, Latin American and Caribbean states will be looking to Canada for guidance and our foreign policy influence will be stronger from that.
We will not have to compete with American interests in so doing because that is one area where the Americans have isolated themselves. They might exercise military power — God forbid that it be done in the Americas — they might exercise economic influence, but the most essential element of the inter-American system that they are not going to influence that Canada can influence is in the human rights area. Through that human rights area, we can become a major player in Latin America and in the Caribbean in a way that we have not been able to do before. That is our conclusion from a political perspective, and I think it is important for the Canadian government to look at the ratification from that perspective.
The Chairman: Professor Fleming, let me go back for a couple of minutes to your declaration on the ratification issue. You said you hoped the federal government would not be so thick-skinned as to not ratify because of the provincial objections. You talked about Alberta being one province that had objected to the declaration on the rights of the child. In this particular issue, we have had responses from all but three, who did not even bother to reply at all, when we talked about this federal-provincial committee that meets apparently once a year, where none agreed to tell the committee what their provinces would recommend to the federal government. It is secret. It is confidential. We have no way of finding out why or what they would do if we asked for their opinion on ratification. Since we would have no provincial input, would you still recommend or feel that the government would be thick-skinned not ratify?
Mr. Fleming: What I meant there is that the government would be thick-skinned if it had not sought consultation before deciding to ratify, and I stand corrected if I did not say it in that way, but the reference to thick-skinned was that the government should not merely ratify and ignore provincial concerns. It should do its best to deal with provincial concerns.
On the continuing committee of human rights, I must speak with a little bit of historic authority here. I was a delegate on that committee in the mid-1970s and early 1980s. The committee was very active at the time because a number of provincial human rights commissions and certain federal authorities were keen on ratification of treaties. I can remember in negotiations, for example, on the treaty for the elimination of discrimination against women there was strong but isolated provincial discord with ratification. It only came about because there was a driving force by some provinces, and certainly by the federal government, to ratify.
I have not been a member or affiliated with the continuing committee for a number of years, nor do I know where it is standing right now, but I mentioned in our report that, in 1989, when then Prime Minister Mulroney announced that Canada would join the OAS by ratifying the charter there was a commitment made at the time to ratify the American convention. At least annually, Foreign Affairs said for a number of years, and they mentioned it to, of all people, international lawyers each year at the annual meeting of the Canadian Council on International Law, that ratification of the convention was imminent. After a number of years, it finally admitted that it is off the table. No reasons were given, but I have a feeling that it is just the lack of drive by an initiating governmental force that has put the thing into suspension.
I strongly submit that perhaps even a committee outside the continuing committee on human rights, a committee such as this one, if it were to become the driving force toward fomenting the idea within government circles of ratification, you might get it. I do not know what your provincial findings were. I submit to you, though, that a little bit of discussion with provinces from a committed group that wants to ratify could change their minds, or at least could change the minds of a great number of them. That is what a federal state clause is for. That is why it is an ideal instrument for a federation like Canada.
The Chairman: If there are no other comments, I would like to thank you for your presentation. It was greatly appreciated. Should you have anything that you feel was not covered today, or that you would like to add to our discussions, I would ask you to advise us as soon as possible.
Mr. McEvoy: I have two small points. We teach students at their moot courts when they leave to remind the judges that there are matters that they have not had time to address in their written submissions. I should do that, and also indicate that in the appendices we have included some charts to indicate the workload of the commission. Canada is identified there, the number of cases and petitions. Petitions are obviously the petitions that are received. In regard to cases, you have had a determination on admissibility and then you open the file on the case.
I also have produced a crude — and I apologize for its crudeness — comparison between the American declaration and the American convention, and a comparison between the International Covenant on Civil and Political Rights and the American convention, as well as the other documentation.
I should also indicate that last week I took the opportunity to speak to a legal affairs officer at the commission. That person e-mailed me, and I left a copy of that e-mail with the clerk, that if the committee wishes to invite a member of the commission staff to come and explain anything, they are more than willing to send someone. I have left that contact information, if you want to follow up on that.
Otherwise, I thank you for your invitation and your kindness to us today.
The Chairman: I wish to thank our witnesses from the University of New Brunswick for their presentation.
[Translation]
The Chairman: Our next witness is Professor Nicole LaViolette, who is anxious to present her report to us.
Ms. Nicole Laviolette, Assistant Professor, Faculty of Law, Common Law Section: Thank you for inviting me to present a document that the committee asked me to prepare last summer. I will try to make a brief presentation of the report. I have also prepared a short document for you, which I will be referring to. I will try to present to you, in concise form, some of the conclusions that can be drawn from my report. My presentation is made up of three sections. I will provide a general introduction to the research project and the report. I will discuss the research methodology I used for my research and, finally, the conclusions I reached. I will be making my comments, in part in French, and in English.
In June of 2002 your committee asked me to conduct research on international human rights instruments to which Canada had still not acceded. The research was to lead to a final report, which I submitted in September 2002.
As you know, this project was initiated by your committee, in particular, by Senator Andreychuk, who was the chair of the committee at the time.
I believe that the idea for the report was the result of hearings that had been held on the American Human Rights Convention, which was the subject of the presentation before mine.
In sponsoring this report, the committee was interested in not only the convention, but also other human rights instruments that Canada has yet to ratify. The committee wanted to know if there were other instruments that could be studied or that should be ratified. However, it was clear that there was no list of all of the human rights instruments that had not been ratified. That is what I was asked to do, to identify instruments that Canada had not ratified and then to try to identify the reasons for this. That is why I did in the report.
The report contains a list of all of the treaties, conventions, protocols that remain to be ratified by Canada.
I only looked at international instruments that create rights and obligations. I did not look at declarations, for example. I limited myself to conventions that create legal rights and obligations. That is the introduction to the report.
I would like to talk about the methodology that I used for the research and the report. The report identifies each instrument. There is also a brief description of the contents of the treaties, and well as a delimitation of the reasons for non-ratification.
In order to do this, I divided the research project into two stages. The committee had asked me to review all of the written documentation, including government documents and Parliamentary proceedings, in order to identify the reasons for Canada's failure to ratify each of the instruments listed.
I proceeded with interviews with stakeholders from government and non-governmental organizations. I also conducted interviews to complete the written documentation.
You will notice that for some conventions, I was unable, in the end, to identify the reasons for non-ratification. I will come back to this point a bit later.
I first reviewed the written documentation and conducted interviews with representatives from the Department of Foreign Affairs, in particular with the multilateral section of the Human Rights Division, with respect to issues involving the UN.
I contacted other departments, including Human Resources Development Canada. This department has an office for international labour affairs that looks after labour law conventions, for example. I also contacted certain government organizations, such as the Council of Ministers of Education, Canada, which was involved in certain conventions and obviously, non-governmental organizations such as Amnesty International, the Canadian Council for Refugees and several others. I also spoke with legal experts, lawyers and law professors who specialize in the areas related to these conventions.
In carrying out this work I realized that there has never been a study or listing of all of the conventions that Canada has not ratified. Your initiative is a welcome one. That is what the people I contacted felt. They have been waiting a long time for such a study.
Even the Human Rights Division of the Department of Foreign Affairs had never compiled a list and identified the conventions. This division was unable to give me the reasons why there had not been ratification, despite all of the department's assistance.
I will now move to the contents of the report and the conclusions that can be drawn from them.
I was not asked to draw broad conclusions in this report, but instead to identify the reasons for Canada's failure to ratify each instrument. As a result, the report contains a list of conventions, their description and the reasons for non- ratification of these conventions.
For the purposes of this evening's presentation, I will avoid giving a detailed description of each convention individually. I will instead present overall conclusions on the issue of non-ratification of the conventions listed in hopes that these conclusions will help you proceed with hearings, if that is the case, or include a more in-depth study of certain conventions in your report.
[English]
In the four-page document I distributed, I tried to group the 30 or so international conventions into larger categories to try to put a hierarchy on some of these instruments. Rather than the form and subject matter classification that I used in the report, this is a different way in which some of these conventions can be grouped.
I regrouped them today for presentation. I had fairly short notice, and I would like to do a bit more work on these general groupings, but I tried to put something together for you tonight that I think will help you to understand some of what is in the report.
It should be noted, before I get to those groupings, that one of the conventions in the report has since been ratified, that being the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women that I refer to in the English report on page 45. That now has been ratified, although in my report I indicated that ratification was imminent. The others have not yet been ratified.
I have grouped these into three general categories that have a bit of a hierarchy. The first is the treaties that I have referred to as ones that I think are less important in terms of eventual ratification, and that is for two reasons. Some of them I would classify as outdated treaties. A second group under that general category is treaties that conflict with other international conventions or treaties that Canada has ratified.
Let us look briefly at these two groupings under the ones that I think are of a less urgent priority. For the three treaties that I have listed under outdated treaties, either the subject matter is no longer relevant or the subject matter or content of these treaties has been displaced by other conventions that Canada has ratified.
I should note that it is generally the view of the Canadian government that these are no longer relevant. There may be some NGOs that believe there is still some value to these, and I will identify that in the report for you. However, for tonight's purposes, I wanted to give you the information that the reason we are not ratifying some treaties is that they no longer seem to be relevant.
The second grouping includes treaties that conflict with other international instruments that Canada has ratified, and you see here a listing of four conventions on asylum. These are inter-American conventions. Some of them are quite old and actually predate the international convention on refugees. Canada is committed to the international convention on refugees, whereas these four create a completely different system.
You may be aware there was for a long time a regional convention in Latin America around political asylum. There were a lot of coups after which political leaders were suddenly granted political asylum in either embassies or other countries. There was a kind of custom regarding this built up in Latin America. Some of these conventions reflect that, and it is not necessarily what is now seen as the asylum approach in international law.
That is the first category, and I would suggest that in terms of the work you might do in the future these might be of less interest to you because there does not seem to be an urgent need to ratify these.
The second category is the treaties for which the reasons for non-ratification seem to be unknown or unclear. Here again, I have two general groupings. The first is treaties that no longer have any incompatibility with Canadian internal law. These two are of quite a bit of interest. The first is this optional protocol to the International Covenant on Civil and Political Rights that aims to abolish the death penalty. The second one is also on the death penalty, but it is the American Convention on Human Rights to abolish the death penalty.
I have grouped them under this category of unknown or unclear because, for the longest time, Canada refused to ratify these conventions since, until 1998, we still had the death penalty under the National Defence Act and also still had some issues around extradition to death penalty jurisdictions.
Canada was concerned that by ratifying these two conventions we would be limited in our ability to return fugitives to death penalty jurisdictions. However, in my view and certainly in the view of many NGOs, these are no longer relevant justifications. First, we abolished the death penalty in 1988 under the National Defence Act. Therefore, we no longer have any law that includes the death penalty. The second reason is the Supreme Court decision in Burns, with which you may be familiar. Burns was an extradition case of two young Canadians. The issue was whether the Minister of Justice had an obligation under the Extradition Act to seek guarantees from a jurisdiction that has the death penalty that it would not be imposed on Canadian citizens. You will remember that the Supreme Court said that the minister does have the obligation to seek guarantees.
Given that case, the ratification of these two conventions will not limit us because the Supreme Court of Canada under our Constitution has already placed those limits.
Some of the NGOs with whom I spoke said that it is not clear now why we are not proceeding with ratification of these two conventions on the death penalty. We have already signed other conventions that limit the use of death penalty. By virtue of the Convention on the Rights of the Child, we cannot use the death penalty for any child.
There are other ways in which we have already made these commitments in some form. I put them under a question mark, and it may be of interest to the committee at some point to look into why we are not proceeding, now that the obstacles have been removed.
The second grouping is a list of conventions and treaties for which I was unable to find the reasons for non- ratification. I could probably guess that some of them fall under the category of conventions that are no longer relevant. Some of these are old, such as the status of aliens at the turn of the century. Some are inter-American conventions and the Canadian government will not ratify them until they make a decision on the general American Convention on Human Rights.
Those might be the reasons, but to be honest with you, no one at Foreign Affairs was able to confirm any official reasons for non-ratification. I was not able to find any reasons in written documentation or during interviews.
The last category holds those conventions for which ratification remains highly relevant. In some cases, there are NGOs actively campaigning for ratification. In some cases, the federal government is engaged in consultations with the goal of ratification. In other cases, we are still actively studying these treaties.
I have several groupings here. I would not consider them yet scientific.
As a first grouping are the treaties whose ratifications are currently the subject of consultations with provincial governments. From indications that I have had, the federal government is in the process of trying to get to the ratification point, but there is still work that needs to be done with the provincial governments. These fall under provincial areas of jurisdiction.
I would like to say a few words about the two UNESCO conventions that are listed there. They are on discrimination in education, and they clearly fall under provincial jurisdiction. However, the Canadian commission on UNESCO, and some of the other people with whom I have talked, have felt that these have been stalled for no obvious reasons. These people were probably the group that was most interested in my report, because they had hopes that if someone started paying attention to these two conventions it might lead to the provinces and the federal government doing something towards ratification.
The unusual thing about these two is that, at the same time as there were conventions on eliminating discrimination in education, they also developed a non-binding declaration that Canada has signed. Under that declaration, Canada submits reports as to how it is conforming to the declaration, which is identical to the convention.
We are doing work to ensure that we are not in violation of these principles, but we have done nothing to ratify. My sense is that it is not for content or subject matter reasons. There is no principled reason. As it requires consultation and work with the provinces, nobody is doing it.
The Council of education ministers should be doing this. As far as I could tell, they were not doing any work towards ratification. They are busy reporting every several years on the declaration as opposed to trying to get the provinces to get on board on the ratification.
I flag that for you, as there are some people quite interested in having some progress made on those two conventions.
A second grouping here is treaties that substantially conflict with Canadian internal laws, either federal or provincial. These are the most contentious ones. The one of which you are most aware is the American Convention on Human Rights. You have been studying this for quite a while. You are very familiar with the issues.
I have listed some other treaties that do not seem to be moving towards ratification because there are still too many substantial differences between the international convention and our internal laws. There does not seem to be a willingness on the part of the provincial governments or the federal government to make those changes.
It is not very hard to make such changes. One need only look at the ILO Convention concerning indigenous and tribal peoples to imagine the kinds of concerns that would come up under that kind of convention.
Those are the ones that may be of interest in terms of further study. Is there any hope that we could move towards ratification of these conventions?
The ILO considers the two ILO ones regarding bargaining rights and minimum age for employment to be part of their fundamental conventions. ILO wants every state to ratify these two.
Canada has yet to ratify three of nine fundamental conventions. The ILO has hundreds of conventions, but they have identified nine of them that they want every state to ratify. It may be worth pursuing that to try to understand why Canada is still reticent to do the work to get to the point of ratification.
The next category is an interesting one. It comes from my interviews with Foreign Affairs.
There is a group of conventions where there seems to be a division between developing and developed world states. Foreign Affairs referred to these as ``the group of 77 treaties,'' referring to the non-aligned countries.
Canada's concerns regarding these treaties would appear to be in step with other industrial countries, which also have not ratified these. Most of the ratifying states are part of the developing world. There are some principal reasons why Canada has refused to do ratify this group of treaties.
I would highlight that the one on migrant workers is of huge interest to the NGO human rights community in Canada. There is a campaign to try to get ratification of this convention. Only one ratification is missing for the convention to come into force internationally. Canadian NGOs would like Canada to be that additional ratification. Canadian NGOs feel this is a really important convention.
I would think that that would be an interesting one for further study, because there is a lot of interest in Canada about this convention. I should add that you have in the report all the citations and references for the people who I interviewed. Therefore, you have a list of potential witnesses, if you decide to pursue any of this.
The final category is treaties that await the ratification of another treaty. There are probably a few others that I could add here, but these are mostly the inter-American treaties on human rights where Canada's position is that until we decide about the main one, the American Convention on Human Rights, we will not ratify these other ones.
Certainly some of the NGOs do not feel that is necessarily a good justification. They feel that one way to slowly get into the American system is to ratify the ones with which we do not have issues.
That is something to think about. There may be a couple more that I could have put under that category.
The report is actually more under a subject matter listing than the manner in which I presented it tonight. However, it was my understanding that the committee wished to pursue hearings on more than just the American convention and that there might be other treaties that would be of interest to the Canadian community generally that the committee might wish to pursue.
I hope that I have highlighted some of the more interesting parts of the work. That concludes my prepared remarks. I would be happy to answer any questions.
The Chairman: Thank you. Under ``B'' on page 2, the protocol to the American Convention on Human Rights to abolish the death penalty is not a stand-alone protocol until the American convention is ratified.
Ms. LaViolette: That would be a good point attached to the main convention. That is another that could have gone in that last category.
[Translation]
Senator Beaudoin: We wish to thank you for this most useful report. I only have one problem. In law, a treaty is signed, ratified and implemented. In your report, you use the words, ``The principal international human rights instruments to which Canada has not yet acceded.'' In legal terms this is not clear. It is possible to support a treaty and sign it. However, this treaty must then be ratified and implemented in order to change the country's laws. Canadian jurisprudence is very clear on this point. Where did you find the word ``acceded?'' What do you mean by this term?
Ms. LaViolette: I did not want to use a technical term in the title of the report, because some of the conventions have not been signed. There were some cases that were ratified immediately. Sometimes, the principles of a convention are implemented before it is ratified.
As for the title, I did not want to use a legal technical term. However, you are right. I fully understand your comment.
Senator Beaudoin: If the treaty appears on the list, does that mean that we acceded to it, or that we signed it, at least?
Ms. LaViolette: No, many of these conventions have not been signed and some of them have been signed without being ratified. Because of this, we cannot say that there has been ratification, because in these cases, there has been no signing.
Senator Beaudoin: In that case, I think there should be more work. We should draw up a list of the treaties that we have signed, the treaties we have not signed, and that could be of interest to us, the treaties we have ratified and the treaties we have not ratified. Then it would all be clear.
Ms. LaViolette: The report does indicate whether the convention was signed or ratified, whether Canada has signed and ratified each convention.
Senator Beaudoin: Is this indicated for each one?
Ms. LaViolette: Yes. In fact, when we negotiated the research project, we considered including the conventions ratified by Canada that were not implemented. However, we felt that would widen the scope of the study too much and that it would be difficult, if not impossible, to assess to what extend a convention that was signed had been implemented. We therefore excluded conventions that were ratified but not necessarily implemented, from this report. What we have here is only a list of conventions that were not signed, or were not signed and ratified.
Senator Beaudoin: So it says for each treaty whether it has been signed or ratified?
Ms. LaViolette: Yes.
Senator Beaudoin: In 1997 or 1998, the Senate Standing Committee on Legal and Constitutional Affairs abolished capital punishment. The Armed Forces had abolished capital punishment in 1976. We are one of the most advanced countries when it comes to this.
You have indicated what the case is for each treaty, and that is enough for me. We need to distinguish between signing, ratifying and implementing. In fact, our score, when it comes to the implementation stage is not that high.
[English]
Senator Beaudoin: The implementation of treaties is not moving along smoothly.
However, this is truly interesting and will be extremely useful. Thank you for the information.
The Chairman: I wanted to return to treaties for which ratification remains relevant. Education is totally provincial, even though we have signed declarations. I would be interested in knowing why you did that, because it is almost a no- no for the federal government to touch education, in any way, shape or form, except for the declaration that has been signed. Why did you list the two UNESCO ones, or was it pressure from NGOs?
Ms. LaViolette: No. My departure point is a UNESCO document that UNESCO actually puts out every two years. It is a listing of all the major international human rights treaties and their ratification and signature status for every state.
That was my initial point. One needed to define an ``international human rights convention'' because one could have gone beyond that and talked about Geneva conventions and international humanitarian law. I was trying to have a definition that might be used more generally. Everyone refers to this document as the listing of all human rights conventions. They include in that the two UNESCO ones on discrimination because they include any human rights treaty that touches on discrimination. The two UNESCO treaties are on that list. I was not mandated to exclude treaties that completely fell under provincial jurisdiction. I was asked to look at all of them and to identify the reasons.
You may think that because they are provincial you may not want to pursue any further study of these two. However, there is an interest in the NGO community to pursue this, and they are not getting it from the provinces. You would have no problems having witnesses appear on this issue, but it is up to you. I certainly agree that it is a provincial matter.
The Chairman: I am trying to recall: Did we not just sign a convention on the rights of the child?
Ms. LaViolette: We ratified that one. It would not have been part of my study.
Senator Poy: Professor LaViolette, I need some clarification, please. Under ``B'' in the report, where you talked about the death penalty, you said that the Supreme Court's decision supersedes the ratification. Could you clarify that?
Ms. LaViolette: I may not have expressed myself properly. Canada seemed to hesitate to ratify these two — certainly the first one and the second optional protocol — because Canada did not want to limit itself in cases of extradition. It wanted to be able to extradite to jurisdictions that have a death penalty. There was concern that this would prohibit that.
Since then, we had a Supreme Court decision using our own Constitution that has limited Canada's ability to extradite to jurisdictions with the death penalty. My point was that we already have that limit. It was imposed not by this treaty but by our own Supreme Court based on our own Constitution. That no longer seems to be a relevant justification to refuse to go ahead with ratification, because we are already limited.
[Translation]
Senator Chaput: Congratulations Ms. LaViolette. I look forward to reading the report in its entirety. This report will help us understand the situation.
The Chairman: Thank you so much, Professor LaViolette.
Ms. LaViolette: It has been my pleasure. I very much appreciated the work. This was a study that had never been done. I hope that you will look into the area further.
The Chairman: It is now a public document.
The committee adjourned.