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ENHANCING CANADA'S ROLE IN THE OAS:

CANADIAN ADHERENCE TO THE AMERICAN CONVENTION ON HUMAN RIGHTS

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IV. DISCUSSION OF ISSUES RAISED WITH THE COMMITTEE

    A. Government Concerns  

Canadian government Officials have said [105]that the Convention has an impact on matters of provincial jurisdiction, making it difficult for Canada to proceed without the support of the provinces and territories.  However, no details were given as to specific provincial issues because of concerns that the federal-provincial consultation process remain confidential.  Some insight into federal and provincial concerns was provided by one witness, who believed they were unfounded[106].  The concerns were said to be:

·        Lower standards than those of other international instruments.  However, as pointed out by the witness, article 29 of the Convention provides that if there is a higher standard, it applies.

·        Article 22 prohibiting the expulsion of nationals could be considered incompatible with Canadian law and practice authorizing the extradition of Canadians.  However, as pointed out by the witness, expulsion is not synonymous with extradition and article 22 does not prevent the extradition of nationals.[107]

·        Article 13, prohibiting prior censorship could be considered incompatible with Canadian legislation on hate propaganda.  However, the Convention makes an exception in the case of hate propaganda.  The witness also suggested that an interpretive declaration could be added.

·        Article 14, providing for the right of reply when one is injured by inaccurate or offensive statements, unknown in Canadian legislation.  The witness suggested that since Canadian legislation does provide for reparation, the risk of a successful petition against Canada is minimal.  This issue was the subject of further study by the Committee, as discussed below.[108]

Senior Canadian government officials expressed some more general concerns and provided reasons why the Government of Canada is reluctant to ratify the American Convention.

    1.  Ratification of the Convention will have little impact on Canadians  

Canadian government representatives have suggested that ratification of the Convention would have little impact on Canadians as Canada has a Charter of Rights and Freedoms as well as provincial and federal legislation protecting the human rights of Canadians.[109]

Although it is true that Canadians already enjoy protection under the Charter as well as federal and provincial human rights legislation, this Committee believes that human right norms and complaint mechanisms are developed for the benefit of individuals, not the State.  It cannot be said that people have so much protection that they do not need any more.  In addition, ratification of international treaties and recognition of the jurisdiction of the bodies created to oversee their implementation give another level of protection not afforded by domestic courts, especially in Canada where the absence of legislation implementing international treaties seriously limits the possibility of invoking them before the courts.

 

2.  Ratification will raise the issue of the jurisdiction of the Inter-American Court

Canadian government representatives alluded to the non-binding nature of the decisions from the human rights bodies to which Canada is subject, including the Inter-American Commission, as opposed to the binding decisions of the Inter-American Court.[110] 

 

3.  Canada is already subject to the jurisdiction of the Inter-American   Commission  

In this regard, officials expressed concerns about the lengthy delays in getting a decision from the Commission.  This was said to be both a resource issue and an issue of the credibility of the Commission.  The example given was that of the precautionary measures imposed on Canada with respect to immigration, requesting a stay of removal pending the Commission’s consideration of a petition.  Years later, Canada still awaits the Commission’s conclusions.  

The following example would tend to indicate that the Commission is not necessarily entirely responsible for delays, but that both Canada and the petitioners may contribute to them.  On February 27, 2002, the Commission declared admissible a petition against Canada which had been filed on July 26, 1996.  The petition alleged that the government of Canada bore international responsibility for the denial of fundamental human rights to a refugee from Sri Lanka.[111]  It would appear, according to the Commission’s report, that several requests for information were addressed to the Canadian government between August of 1996 and April of 1997, when the Commission granted Canada an extension until the end of June 1997.  Canada presented its submission on the admissibility of the petition on July 31, 1997.  The Commission forwarded it to the petitioners a few days later, giving them 30 days to respond.  On October 23, 1997, the petitioners requested an extension until mid-November. On January 16, 1998, the Commission requested Canada to stay the pending deportation of Mr. Suresh from Canada until it had an opportunity to investigate the allegations made in his petition.  The Commission held a hearing on February 23, 1998.  Subsequent developments in Mr. Suresh’s case in Canada, including a decision of the Supreme Court of Canada which held that Mr. Suresh was entitled to a new deportation hearing, led to the withdrawal of most of the issues raised in the initial petition, with the exception of those pertaining to the compatibility of his detention with the American Declaration.  

In addition, as noted above, Committee members learned that the Commission is evolving and making an effort to address the issues that could adversely affect its credibility and effectiveness.  As a Party to the American Convention, Canada would increase its chances of having a Canadian Commissioner, thereby enhancing the role it could play in bringing about necessary changes to improve the Inter-American system.

 

    B. Concerns of Non-Governmental Witnesses  

Article 4 and particularly paragraph 1 protecting the right to life “in general from the moment of conception” was raised by most of the witnesses as the main source of concern.  Other provisions of the Convention raise questions which appear easier to address.

 

1. The Right to Life  

Article 4(1) of the American Convention on Human Rights guarantees the right to life “in general from the moment of conception”.  The Inter-American Commission on Human Rights held, in a case against the United States, that the terms “in general” were added as a result of a compromise between OAS member States, and that article 4(1) did not impose any specific obligation on States with respect to abortion.[112]  However, the Inter-American Court has not yet pronounced on this issue.  Although one cannot discount the possibility that the Baby Boy decision be challenged in the future, one witness before the Committee suggested that it would not be easy to bring the issue before the Court as it would raise questions as to who is the alleged “victim” in such a case.[113]

No matter how difficult it may be, it cannot be denied that the issue could be raised again before the Commission[114], or before the Court, if not by means of an individual petition, then through a request for an advisory opinion.  Therefore, one cannot dismiss the concerns expressed by many witnesses about article 4(1) in the light of the current absence of Canadian legislation on the matter of abortion.  Representatives from women’s associations in particular feared that the provisions of article 4(1) could be used to prohibit abortions in Canada,[115] or even prevent access to some contraceptives such as the “morning-after pill”, intra-uterine devices or RU-486, which act after conception.[116]  Even though article 4(1) does not impose an obligation to prohibit abortions, it may impose an obligation to regulate them.  However, at the moment, there is no Canadian legislation or regulation with respect to abortions.  The Supreme Court of Canada found in R. v. Morgentaler[117] that the procedure created under section 251 of the criminal Code for obtaining an abortion was incompatible with a woman’s right to the security of her person.  No new provision has been adopted to replace s. 251.

One witness[118] suggested that in the light of subsequent developments in international law since the adoption of the American Convention, as well as the interpretation by the Human Rights Committee of article 6 of the International Covenant on Civil and Political Rights guaranteeing the right to life, a woman’s right to abortion and access to adequate reproductive health services is an essential component of the right to life, security, and equality under international law.  These developments have to be taken into account in order to interpret the scope and content of article 4(1) of the American Convention, given the requirement, under article 29, not to restrict the enjoyment of exercise of any right of freedom recognized by virtue of the laws of any State party or by virtue of another convention to which the State is a party.  However, as underlined by Professor Lamarche, this analysis does not entirely resolve the issue for Canada.

In addition, research conducted by the Committee into the reports of various human rights treaty monitoring bodies concerning Latin-American States tends to indicate that the criminalization of abortion is considered to be incompatible with the rights of women to health and life.[119]  However, these reports do not indicate recognition of a general right to abortion.  The human rights treaty monitoring bodies are not suggesting that States take the necessary measures to give women access to abortion.  Rather, they are asking States to remove any criminal penalty imposed on women who undergo abortions so as to protect them from unsafe clandestine abortions.   There does not seem to be any rule preventing States from regulating abortions.  

The consensus among the witnesses who appeared before the Committee was that the American Convention should not be ratified without a reservation or an interpretative declaration regarding article 4(1).  Experts consulted by the Committee, including members of the Inter-American Court and the Inter-American Commission share Canada’s position as to the undesirability of reservations in general.  However, they indicated that the Convention does not prohibit them from doing so and that as long as they are drafted in such a way as to preserve the object and purpose of the American Convention, reservations may be justifiable, especially in the case of a State that did not participate in the negotiation and the drafting of the Convention.  This issue is discussed at greater length below.

 

2. Article 13: Freedom of Expression and Prohibition of Prior Censorship  

One witness suggested that closer analysis of the compatibility of Canadian legislation with the provisions of article 13 prohibiting prior censorship might be required.[120]  One witness[121] provided further insight into the scope of article 13 which prohibits prior censorship except for public entertainments, “for the sole purpose of moral protection of childhood and adolescence”, under the terms of its paragraph 4.  This Committee feels that the concept of “public entertainment” is vague and would recommend a statement of understanding of this provision as meaning any form of entertainment including, but not limited to, the Internet.

Article 13 allows others restrictions to freedom of expression by prescribing that hate propaganda as well as other forms of propaganda must be “considered as offences punishable by law”.  In addition, the Inter-American Court of Human Rights judges restrictions to freedom of expression “by reference to the legitimate needs of democratic societies” and requires that the restrictions “follow a compelling government interest”, and that they “do not limit the right more than necessary”[122].  Canadian legislation with respect to hate propaganda has to meet similar standards in order to be constitutional.  Article 13 should not affect Canadian hate propaganda legislation.  However, any remaining concern in this respect can be addressed by means of an interpretive declaration.  

 

3. Article 14: Right of Reply  

One witness stated that there are two ways of reading article 14: literally or in context.  Although Canadian law does not appear to fully conform to the provisions of article 14, Canadian law does offer useful and effective remedies to victims of libel.[123]  The witness suggested that compatibility with international law should not be analysed literally but rather in the context of their interdependence. 

Subsequently, the Committee heard from an attorney with experience in freedom of the press, who expressed concerns about article 14, which in his view provides for an automatic and mandatory right of reply that is not provided for in provincial statutes. [124]  Even the Quebec Press Act, which was said to offer the best protection to victims of erroneous or libellous statements, could be incompatible with the provisions of article 14.  The Quebec Press Act provides an opportunity to reply, but it is optional and, if exercised, extinguishes the right to take legal action.  On the other hand, the witness believes that article 14 gives an “automatic right of reply to anyone who happens to disagree with an article or an opinion published in a news medium”.  He also expressed concern about the term “ideas” in the English version of article 14, which is very wide and subject to interpretation.  He questioned the constitutionality of a mandatory right of reply and suggested a reservation to article 14.

Another witness heard by the Committee disagreed and stated that in her opinion, the right of reply is indeed mandatory, but it is not absolute.  Article 14 contains an express reference to domestic law which states that the right to reply shall be exercised “under such conditions as the law may establish”.  She believes that the inaccuracy or offensive nature of a statement would be decided by an objective, rather than subjective test.[125]  As far as the inclusion of the term “ideas” in article 14, the witness pointed out that it does not appear in the Spanish, French or Portuguese versions.  Canada could maintain that it is an incorrect translation of the original Spanish and include an interpretive declaration to this effect in ratifying the Convention.

There are, therefore, two issues related to article 14: the term “ideas” in the English version and the scope of the right of reply.  With respect to the first issue, this Committee believes that Canada should make an interpretive declaration expressing its understanding that only offensive statements, not ideas, may trigger a right of reply.  The second issue was the object of contradictory testimony, as indicated above.

During their fact-finding mission, Committee members heard from the Inter-American Commission’s Special Rapporteur on Freedom of Expression that article 14 had been included so as to balance the very broad freedom of expression in the American Convention.  However, the manner in which this right is to be exercised is left to the discretion of States, according to their own laws and regulations.  The Convention does not prescribe any particular mechanism and does not contemplate an automatic right of reply whenever anyone feels offended by a statement.  In Guatemala, for example, a tribunal must first establish the offensive, incorrect or libellous nature of the statement.

It should be noted that unlike the United Nations Convention on the International Right of Correction (the “United Nations Convention”), which aims at the protection of States against “false or distorted reports likely to injure friendly relations between States”, the provisions of article 14 aim at the protection of individuals.  The United Nations Convention virtually gives a State the right to demand that its correcting statement be published if it contends that a news dispatch will harm its relations with other States or its national prestige or dignity.  However, this mechanism was put in place because, according to the Preamble of the United Nations Convention, the Contracting States felt that “it is not at present practicable to institute, on the international level, a procedure for verifying the accuracy of a report which might lead to the imposition of penalties for the publication of false or distorted reports”.  Such an impracticality does not exist at the national level.  There does not appear, therefore, to be any analogy between the right of reply under article 14 of the American Convention and the “Right of correction” in the United Nations Convention.

This Committee believes that the concern about the scope of the right of reply can be addressed by an interpretive declaration expressing Canada’s understanding that the right of reply is not absolute and is exercised according to applicable domestic legislation.

 

4. Property Rights  

Questions were raised about the possible incompatibility of the individual right to property protected under article 21 of the American Convention and property rights of aboriginal peoples, which have been held by the Supreme Court of Canada to be collective in nature.  However, the Inter-American Court of Human Rights has interpreted article 21 as including the collective property rights of indigenous communities.  

It is the opinion of this Court that article 21 of the Convention protects the right to property in a sense which includes, among others, the rights of members of the indigenous communities within the framework of communal property, which is also recognized by the Constitution of Nicaragua.[126]

Therefore, it is this Committee’s opinion that there is no incompatibility between the provisions of Canadian law respecting aboriginal title to land including section 35 of the Constitution Act, 1982 and article 21 of the American Convention.

 

    5. Article 22(5): Expulsion of Nationals

Although article 22 did not generate much debate, one witness referred to the concern expressed by the Canadian government that the guarantee that “no one can be expelled from the territory of a State of which he is a national or be deprived of the right to enter it” could prevent the extradition of Canadian nationals.[127]  However, the witness stated that this concern is unfounded because “the Inter-American system has already said that that article does not apply to extradition”.[128]

The distinction between the terms “expulsion” and “extradition” in the reports of the Inter-American Commission does not appear to be very clear although it seems that “expulsion” is used in reference to aliens while “extradition” is used in reference to nationals.[129]  In any event, this can easily be addressed by means of an interpretive declaration.

One witness suggested that the decision of the Supreme Court of Canada in the Suresh case meets the requirements of article 22(8) concerning the prohibition of deportation of foreigners back to their country of origin where they face the risk of violation of their right to life or personal freedom.[130]

 

    6. Article 24:  Equality Rights  

Concerns were expressed about the formulation of equality rights in the Convention, which does not seem to contemplate affirmative action programs.  The International Centre for Rights and Democracy suggested that affirmative action is part of the right to equality under international law.  This interpretation is shared by the Inter-American Commission on Human Rights.

The Committee’s research found that equality does not mean identical treatment for all under international law.  The following Comment from the United Nations Human Rights Committee reflects the status of international law on this issue:

The Committee also wishes to point out that the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions, which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant.[131]  

In fact, the Human Rights Committee has on occasion expressly recommended that affirmative action programs be implemented when necessary to ensure effective equality: 

The Committee emphasizes the need for the government to increase its efforts to prevent and eliminate persisting discriminatory attitudes and prejudices against persons belonging to minority groups and women including, where appropriate, through the adoption of affirmative action.[132] 

Given that article 29 (b) of the American Convention expressly provides that the Convention cannot be interpreted so as to offer less protection than other human rights treaties such as the International Covenant on Civil and Political Rights to which Canada is a Party, there would not appear to be any reason why article 29 should be interpreted as excluding affirmative action programs.  In fact, members of the Inter-American Commission referred the Committee to the work of the Human Rights Committee as reflecting the status of international law on this issue.  In addition, as pointed out to the Committee by members of the Inter-American Commission, there are no references to affirmative action programs in other general human rights treaties, included the International Covenant on Civil and Political Rights, which Canada has ratified.

 

7. Article 28:  Federal Clause  

Committee members wondered about the federal clause in article 28 of the Convention.  When asked if there were problems in the United States given the federal state principle, Professor Cassel referred to the case against Mexico where the Commission found that article 28 of the Convention requires that the central government take responsibility for compliance with the Convention by its constituent units.  The United States has a standard declaration on federalism that says that the federal government takes responsibility for compliance in its areas of jurisdiction only.

Professor Shelton explained that the federal clause in the American Convention was included at the insistence of the United States and her interpretation is that it preserves the division of powers and governance structures of federal States such as Canada.[133]  However, concerns remain in the light of the interpretation of article 28 by the Inter-American Commission.

The Inter-American Commission has interpreted article 28 of the American Convention, in two cases concerning Mexico, as imposing on the central government responsibility for implementing the Convention regardless of its constitutional division of powers. It has applied the same interpretation to Brazil.  This interpretation would appear inconsistent with the wording of article 28(1) of the Convention: 

Where a State Party is constituted as a federal State, the national government of such State Party shall implement all the provisions of the Convention over whose subject matter it exercises legislative and judicial jurisdiction. 

With respect to its constituent units, the responsibility of the central government seems to be limited to taking “suitable measures in accordance with its constitution and its laws, to the end that the competent authorities of the constituent units may adopt appropriate provisions for the fulfilment of this Convention.”

However, it is worth recalling that, although hesitant at first, Canada did ratify the International Covenant on Civil and Political Rights, which expressly confirms the responsibility of the federal government for the application of the Covenant throughout the entire Canadian territory regardless of the country’s internal structure.  This led the Canadian government to sign an agreement with the provinces in order to address, inter alia, the situation where provincial legislation or institutions are said to be the source of violations alleged in a petition before an international body.   Canada therefore does not need a federal clause to become a party to an international human rights treaty, and the narrow interpretation of article 28 by both the Inter-American Commission and the Inter-American Court should not be an obstacle to Canadian ratification of the Convention. 

 

    C. Discussion of Interpretive Declarations and Reservations  

The Department of Foreign Affairs and International trade (DFAIT) has stated that the Convention was negotiated without Canada’s participation.  The Department of Justice added that the Convention was drafted in old language that does not reflect Canadian understanding of the law.[134]  Consequently, a large number of reservations and statements of understanding would be required before Canada could ratify the American Convention.

The Committee was told that ratifying the Convention with numerous reservations and interpretive declarations, which the government views as necessary, would be a departure from Canada’s position and would reduce Canada’s credibility as well as undermine its ability to convince others to withdraw their reservations. [135].  However, non ratification of the Convention could also undermine Canada’s credibility.  One witness pointed out that non ratification limited Canada’s ability to convince Trinidad and Tobago and Peru to reconsider when they threatened to withdraw from the Convention.[136]  Indeed, Committee members were reminded of this incident when they met the Inter-American Commission on Human Rights. Peru’s objection to Canada’s interference, arguing that it was in no position to tell anyone what to do, placed Canada in the embarrassing situation of having to explain why it had not yet ratified the Convention.

Some witnesses before the Committee favoured an interpretive declaration with respect to article 4(1), rather than a reservation.  Some felt that a reservation would be inadmissible because of the fundamental nature of the right to life,[137] while others believed that because of its purpose, an interpretive declaration might be interpreted as a reservation.[138]  One witness suggested a conditional interpretive declaration that would make Canada’s ratification of the Convention conditional upon acceptance of its understanding of article 4(1).[139]

Mr. Leuprecht was of the opinion that reservations could be justified even if, in principle, Canada does not like to make reservations.[140]  He does not believe that distinctions between reservations and interpretive declarations are important and does not favour one over the other.  His opinion is that it is preferable to ratify the Convention with interpretive statements or reservations than not to ratify it at all.  He believes the debate around article 4 to be “artificial” in that it can be overcome easily by means of a reservation or an interpretive declaration.  He added that in his opinion there is little risk of a case being made against Canada for not taking any legislative action with respect to abortion[141]. 

The Committee conducted its own research and found that according to the International Law Commission, the body entrusted with the codification of international law:

“Interpretative declaration" means a unilateral statement, however phrased or named, made by a State or by an international organization whereby that State or that organization purports to specify or clarify the meaning or scope attributed by the declarant to a treaty or to certain of its provisions.[142]  

In theory, an interpretive declaration differs from a reservation to the extent that it does not attempt to suspend or alter the application of certain provisions of a treaty, but rather to explain the meaning that a State intends to give them.

In addition, the International Law Commission distinguishes between simple and conditional interpretive declarations.  A conditional interpretive declaration is a unilateral statement whereby the State “subjects its consent to be bound by the treaty to a specific interpretation of the treaty or certain provisions thereof”.[143]  Whereas simple interpretive declarations may theoretically be formulated at any time,[144] conditional declarations can only be made at the time of ratification, adherence or accession to the treaty.[145]

Under the terms of article 2(d) of the Vienna Convention on the Law of Treaties: 

“Reservation” means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.

The Vienna Convention has codified and expanded upon the principles established by the International Court of Justice in its advisory opinion of May 28, 1951, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide: 

·        Reservations are valid if the treaty concerned permits them.  In this case, no formal acceptance by other State Parties is required. 

·        If the treaty is silent on the issue, reservations are valid only if they are compatible with the object and purpose of the treaty.  In such cases, State Parties will be deemed to have accepted the reservation unless they express their objections within a period of twelve months following notification.

Under article 75, of the American Convention on Human Rights, reservations are permitted:

The Convention shall be subject to reservations only in conformity with the provisions of the Vienna Convention on the Law of Treaties signed on May 23, 1969.

In its advisory opinion of September 25, 1982, the Inter-American Court of Human Rights has held that in view of the reference to the Vienna Convention on the Law of Treaties, article 75 of the American Convention “must be deemed to permit States to ratify or adhere to the Convention with whatever reservations they wish to make, provided only that such reservations are not incompatible with the object and purpose of the Convention.”[146]  The Court also held that although as a general principle, a reservation to a fundamental right such as the right to life (non derogable right) would be incompatible with the object and purpose of the Convention, “the situation would be different if a reservation sought merely to restrict certain aspects of a non-derogable right without depriving the right as a whole of its basic purpose”.[147]

It would appear that both the option of an interpretive declaration and of a reservation are open to Canada.   However, one should be aware of the jurisprudence of the European Court of Human Rights with respect to interpretive declarations that seem to have been made in order to avoid the rules regarding reservations or the criticism usually associated with them.  The Court decided to treat as a reservation a declaration which purported to exclude certain categories of proceedings from the scope of the right to a fair trial, so as to avoid a broad judicial interpretation of the right.  It applied the rules relative to reservations to assess the validity of the interpretive declaration:

In order to establish the legal character of such a declaration, one must look behind the title given to it and seek to determine the substantive content.

[…]
Accordingly, it will examine the validity of the interpretative declaration in question, as in the case of a reservation, in the context of this provision.[148]

This means, inter alia, that the interpretive declaration has to be compatible with the object and purpose of the treaty in question and that it can only be made at the time of ratification, adhesion or accession to the treaty.  This precedent is reflected in the Draft Guidelines on Reservations to Treaties developed by the International Law Commission:

·        Under article 1.1.4 of the Draft Guidelines, “A unilateral statement formulated by a State or an international organization when that State or that organization expresses its consent to be bound by a treaty by which its authors purports to limit the obligations imposed on it by the treaty constitutes a reservation.”

·        Under article 1.3 of the Draft Guidelines, “the character of a unilateral statement as a reservation or an interpretative declaration is determined by the legal effect it purports to produce”.

·        Under article 1.3.1, “To determine whether a unilateral statement formulated by a State or an international organization in respect of a treaty is a reservation or an interpretative declaration, it is appropriate to interpret the statement in good faith in accordance with the ordinary meaning to be given to its terms, in light of the treaty to which it refers. Due regard shall be given to the intention of the State or the international organization concerned at the time the statement was formulated.”[149]  

All these elements should be taken into account to decide whether to make a reservation or an interpretive declaration to article 4, to ensure that it can withstand the scrutiny of the Inter-American Commission and the Inter-American Court.

 

    D.  Advantages to Ratification  

    1. Strengthening the Inter-American system  

Canada’s leadership can be important in solidifying democracy and human rights.  As a bilingual country it could be an important source of leadership both for the English-speaking Caribbean countries and for Haiti.[150]  With increasing talk of expanding the free trade area in the Americas, the need for regional human rights has never been greater.  Canadian participation would strengthen the Inter-American system and increase both Canada’s credibility in the general area of human rights and our ability to bring about any required reforms.[151] 

Although Canada is by no means inactive in the area of human rights in the Americas, as a party to the Convention, it could play a more effective role.  As stated by one witness: “once you are inside a club, you are taken much more seriously if you have recommendations about how that club should improve its practices”.[152] 

As Canada becomes increasingly “part of” the Americas and builds closer political and economic ties with its OAS partners, human rights must be part of the equation. Strengthening the system is also achieved through compliance with the decisions of its institutions.  Ratification of the Convention would allow recognition of the Court’s jurisdiction over contentious matters.  Canada would enhance its role as a human rights champion if it showed willingness to stand with the other States Parties and accept the judgment of the Inter-American Court when it finds that Canada is not fulfilling its obligations.[153]  Canada could also contribute to the Court’s voluntary fund for contributions thereby significantly increasing the Court’s budget and its material capacity.[154]

As a party to the Convention Canada would be able to nominate candidates for election to the Inter-American Commission and the Inter-American Court.  Committee members were told that Canadian judges and commissioners could contribute tremendously by bringing a common law perspective to the jurisprudence of the Court.[155]   

 

2. Increased Protection of Human Rights for Canadians  

Ratification of the American Convention would make it possible for Canada to ratify the San Salvador Protocol on social, economic and cultural rights.  This would trigger the reporting obligations States Parties undertake under article 19 of the Protocol, which requires that they “submit periodic reports on the progressive measures they have taken to ensure due respect for the rights set forth in this Protocol”.  It would also give Canadians access to the Inter-American Commission in cases of violations of trade union rights as well as the right to education.[156]

Ratification of the Convention would also enhance human rights protection in Canada in other ways.  One witness referred to social origin as a prohibited ground of discrimination in the American Convention[157], also to be found in the International Covenant on Civil and Political Rights to which Canada is a party.  In addition, Canadians would enjoy protection of the right to property under the American Convention.  One witness referred to a recent decision of the Inter-American Court, which relied on the right to property to conclude that States have specific obligations with respect to aboriginal lands[158].

 

3. Increased Protection of Women’s Rights in the Americas

The Committee heard about the role Canada could play to enhance the protection of women’s rights in the Americas from the witnesses who appeared before it[159], and from the officials and NGO representatives it met during its fact-finding mission.

One example given was that of a Canadian interpretive declaration or reservation to article 4, which could benefit Latin-American women[160] as the Canadian interpretation of the right to life with respect to abortion made its way into the Inter-American Court’s jurisprudence.

Another witness referred to the Canadian constitutional standards with respect to equality rights, which feminist groups in Latin America hope they would benefit from as a result of Canadian ratification of the Convention.[161]

 

4. Stimulating United States and Caribbean participation  

United States ratification of the Convention is not out of the question and although it may not be high in the priorities of the current administration, this could change later.  One US argument is that Canada has not ratified so why should the US.  By removing this argument Canada could perhaps help any future move towards US ratification of the Convention.[162]  Canadian ratification of the Convention, bringing another common law country “on board” could also stimulate participation of the Caribbean countries.

 

5. Greater Precision of the American Convention

Professor Shelton stated that the American Declaration, which was not intended to be legally binding, was not drafted as a treaty and that its terms are therefore broad and often vague.  Its provisions required allowing a great deal of interpretation to the Inter-American Commission on Human Rights, which has broad and quite considerable powers.  The more precise formulation of the Convention leaves less room for interpretation.[163]

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V. The Committee’s Conclusions and Recommendations  

All the witnesses who appeared before the Committee as well as the persons and organisations who expressed their position at the roundtable organised by the League of Rights and Freedoms for Saguenay-Lac-Saint-Jean were in favour of Canadian ratification of the Convention.[164]

Few, if any, of the Government concerns seem to pose an insurmountable obstacle to Canadian ratification of the Convention.  This conclusion is, however, based on limited information from Government sources.  Although officials of the Federal Government did appear before the Committee, they said that they could not give any information concerning possible provincial and territorial concerns, invoking the confidentiality of the federal-provincial-territorial consultation process.  The provincial and territorial governments have declined the Committee’s invitation to appear and although some indicated that they may forward a written response, thus far the Committee has not had the benefit of  any information from provincial and territorial sources.  In fact, the Committee has had no indication that the federal-provincial-territorial Continuing Committee of Officials on Human Rights is actually meeting regularly to discuss the American Convention.  The arguments put forward by the Government of Canada to justify not ratifying the Convention are essentially the same arguments we have been hearing over the past thirteen years, since Canada joined the Organization of American States.

Canada is proud of its well-deserved reputation as a world leader in human rights and yet, it is still standing on the sidelines of the Inter-American system for the protection of human rights.  Without wishing to downplay the Canada’s role since 1990, the fact remains that Canada is not party to the American Convention and its Protocols.  Canada has not recognized the jurisdiction of the Inter-American Court over contentious matters thereby depriving Canadians of full access to the Inter-American system.  Canada claims that it has concerns, but it has not availed itself of the possibility to request the advisory opinion of the Inter-American Court of Human Rights.  There is no Canadian judge or Canadian commissioner, and although at the moment Canadian lawyers are assisting the Inter-American Commission on Human Rights, no Canadian lawyer works with the Inter-American Court.  Canada may not be totally inactive with respect to human rights in the Americas, but it clearly is not doing all that it could. 

Unless a timeframe is put in place, this Committee fears that little progress will be made towards ratification of the Convention.  

Recommendation:
The Committee recommends that the Government of Canada take all necessary action to ratify the American Convention on Human Rights, with a view to achieving ratification by July 18, 2008, which is the thirtieth anniversary of the entry into force of the American Convention.  

Ratification of the Convention would be incomplete if it did not include a declaration that Canada recognizes the jurisdiction of the Court on all matters relating to the interpretation or application of the American Convention.

Recommendation:  
The Committee recommends that Canada make such a declaration upon depositing its instruments of ratification or adherence, as provided for under article 62 of the Convention.

The Committee deplores the mystery surrounding the federal-provincial-territorial consultation process.  There can be no public debate if the public does not know what the concerns of the respective governments are.  Nor can there be academic analysis and deliberation.  Government officials claim that ratifying the American Convention will have little impact on Canadians but though the hearings, the Committee discovered that few Canadians actually know about the Convention.  Members of the Inter-American Court asked the Committee what was the perception of the Canadian population with respect to the Convention and underlined the importance of the participation of civil society in the debate.  The Committee agrees.

 

Recommendation:
The Committee recommends that the federal-provincial-territorial Continuing Committee of Officials on Human Rights identify specific provisions of the Convention that raise concerns and inform the Canadian public about them so as to foster debate and a search for solutions.  

It is possible that the study of the compatibility of federal, provincial and territorial legislation may leave some concerns unresolved.  If so, the Committee believes that Canada should make the necessary interpretative statements or reservations.  Interpretive statements would seem more in keeping with the Canadian tradition of limiting the use of reservations, and may be adequate with respect to some provisions such as the prohibition on prior censorship under article 13 and the right of reply under article 14.  The issue of article 4(1) and more precisely of the scope and content of the right to life with respect to abortion, is admittedly more complex.

The opinion stated by several experts before the Committee to the effect that Canada could justify making a reservation since it had not participated in the negotiation and drafting of the Convention seemed to be shared by members of the Inter-American Commission and the Inter-American Court.  As long as it is drafted in a way that is compatible with the object and purpose of the Convention, a reservation can be justified.  Senior Canadian officials argued that Canada’s credibility was at stake.  However, Canada may be losing more credibility by giving the impression that it is using its position on reservations as an excuse not to ratify the Convention.

Recommendations:  
The Committee recommends that the Government of Canada consider making an interpretive declaration to article 13 to express its understanding that the expression “public entertainment” includes, inter alia, the Internet.  The declaration could also include Canada’s understanding that the provisions of article 13 do not affect Canadian hate propaganda legislation, if deemed necessary.   

The Committee further recommends that the Government of Canada consider making an interpretive declaration to express its understanding that the right of reply under article 14 is not absolute and that it is exercised according to applicable provincial legislation.  

The Committee also recommends that Canada consider making a reservation to article 4(1) in order to address concerns related to the preservation of the status quo, in Canadian law, with respect to abortion.  This reservation should be drafted so as to make it clear that Canada does not seek to deprive the right to life as a whole of its basic purpose, but merely to restrict certain aspects of it, as suggested by the Inter-American Court of Human Rights.

Finally, although Canada claims to be an active participant in the Inter-American system for the protection of human rights, it has done little at home to promote the system.  The fiftieth anniversary of the American Declaration of the Rights and Duties of Man went virtually unnoticed in Canada.  Several witnesses before the Committee admitted to having only recently become interested in the American Convention only because they knew little about it until recently.  The Committee had difficulty finding Canadian experts on the Inter-American system and the Convention.  Although the Study of this Committee has fostered some interest, more needs to be done, especially if all sectors of civil society are to be able to participate in public discussions concerning the American Convention. 

Recommendation:  

The Committee recommends that as the Government of Canada takes appropriate steps towards ratification of the American Convention, it should actively engage in the promotion of the Convention and of the entire Inter-American system for the protection of human rights.  

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APPENDIX A:  WITNESSES 

First Session, Thirty-Seventh Parliament 

March 18, 2002           From the Department of Foreign Affairs and International Trade:

                                            Alexandra Bugailiskis, Director General, Latin America and Caribbean Bureau
                                            John Holmes, Director, United Nations, Criminal and Treaty Law Division 

From the Department of Justice:

Elisabeth Eid, Acting Director, Human Rights Law Section

 

As an individual:

Timothy Ross Wilson

 

April 15, 2002              As individuals:

The Right Honourable Antonio Lamer, P.C.

The Very Reverend the Honourable Lois Wilson

Professor A. Wayne MacKay, President, Mount Allison University

Professor Pierre Foucher, Faculty of Law, University of Moncton

Professor Martha Jackman, Faculty of Law, University of Ottawa

 

April 29, 2002: From Rights & Democracy:

The Honourable Warren Allmand, P.C., Q.C., President

Geneviève Lessard, Assistant Coordinator, Democratic Development Programme

 

As an individual:

Douglas Cassel, Director, Centre for International Human Rights, Northwestern University, Illinois

 

May 6, 2002                As an individual:

Professor Lucie Lamarche, Faculty of Law, University of Quebec at Montreal

 

From the Canadian Foundation for the Americas (FOCAL):

            John W. Graham, Chairman of the Board of Directors

            Sharon O’Regan, Deputy Director

 

May 27, 2002                From the Fédération des femmes du Québec:

                                                  Diana Matte, Coordinator, World March of Women

                                                  Gisèle Bourret, Representative

 

                                      From the National Association of Women and the Law:

                                                  Andrée Côté, Director of Legislation and Law Reform

 

                                      As an individual:

John W. Foster, Principal Researcher (Civil Society), North-South Institute

 

From Amnesty International Canada:

            Alex Neve, Secretary General

            Andrew Thompson, Chile / Peru Coordinator

 

June 3, 2002                From Action Canada for Population and Development:

Jennifer Kitts, Senior Advisor, Sexual and Reproductive Rights

Katherine McDonald, Executive Director

 

From the National Action Committee on the Status of Women:

Sungee John, Secretary, Executive Board

 

As an individual:

Dinah L. Shelton, University of Notre Dame Law School, Indiana

 

June 17, 2002              As an individual:

Peter Leuprecht, Dean, Faculty of Law, McGill University

 

From the Grand Council of the Crees (Eeyou Istchee):

Roméo Saganash, Director of Quebec Relations

Brian Craik, Director of Federal Relations

Robert Epstein, Consultant

 

 

Fact-Finding Visit to San José, Costa Rica, September 4 to 7, 2002 

September 4, 2002       From the Canadian Embassy in Costa Rica:

                                                H.E. Louise Léger, Ambassador

                                                Ted Mackay, First Secretary

                                                David Morris, Counsellor, Development Aid

                                                Sylvie Gariepy, First Secretary (Commercial)

                                                David Smart, First Secretary (Administration) and Consul

                                                Jean Sénécal, Third Secretary (Administration) and Vice-Consul

                                                Elaine Iraegui, Attaché

 

                                    Members of the Legal Affairs Committee:

                                                José Miguel Corrales Bolaños, Chair

                                                Ruth Montoya Rojas, Secretary

                                                Emilia Maria Rodriguez Arias

                                                Federico Malavassi Calvo

                                                Laura Chinchilla Miranda

                                                Carlos Benavides Jiménez

                                                Federico Vaargas Ulloa

                                                Gloria Valerin Rodriguez

                                                Mario Redondon Poveda

 

                                    Members of the International Affairs Committee:

                                                Ligi Zúñiga Clachar

                                                Maria des Rocio Ulloa Solana

                                                Julián Watson Pomear

                                                Juan José Vargas Fall

                                                Frederico Malavassi Calvo

 

                                    From the Inter-American Court of Human Rights:

                                                Judges:                                               

Antõnio A. Cançado Trinidade, President (Brazil)

                                                Alirio Abreu Burelli, Vice President (Venezuela)

                                                Oliver Jackman, Justice (Barbados)

                                                Hernán Salgado Pesantes, Justice (Ecuador)

                                                Sergio García Ramírez, Justice (Mexico)

                                                Carlos Vicente de Roux Rengifo, Justice (Colombia)

                                                Court Personnel:       

                                                Manuel E. Ventura Robles, Secretary

                                                Pablo Saavedra Alessandri, Assistant Secretary

 

September 5, 2002       From the Inter-American Commission on Human Rights:

                                                Commissioners:

                                                Juan Méndez, President (Argentina)

                                                Marta Atolaguirerre Larraondo, First Vice-President (Guatemala)

                                                José Zalaquett, Second Vice-President (Chile)

                                                Robert K. Goldman, Commissioner (U.S.)

                                                Clare Kamau Roberts, Commissioner (Antigua and Barbuda)

                                                Julio Prado Vallejo, Commissioner (Ecuador)

                                                Susana Villarána, Commissioner (Peru)

                                                Commission Staff:

                                                Santiago Canton, Executive Secretary

                                                Ariel Dulitzky, Senior Specialist and Legal Director

                                                Christina Cerna, Commission Specialist

                                                Brian Tittemore, Commission Specialist

                                                Ignacio Alvarez, Commission Specialist

                                                Mario Lopez, Commission Specialist

                                    From the Office of the Ombudsman for Costa Rica:

José Manuel Echandi, Ombudsman (Defensor de los habitantes)        

Max Esquivel, Assistant Ombudsman

 

 

                                    From the Inter-American Institute of Human Rights:

Elizabeth Odio, Member of the Board of Directors

Gilda Pacheco, Interim Director

Gerardo Sánchez, Program Officer Ombudsman

Lorena González, Program Officer Ombudsman

 

From the Centre for Justice and International Law (CEJIL):

           

September 6, 2002       Round table discussion – participating groups:

                                                Casa Alianza (Covenant House) - Street Children

                                                Fundación Pan y Amor (Bread and Love Foundation) - Child Labour

                                                CIDA Gender Coordinator

                                                Office of the United Nations High Commissioner for Refugees

                                                Mesa Indigena (National Indigenous Roundtable)

 

 

Second Session, Thirty-Seventh Parliament 

March 17, 2003           From Gowling Lafleur Henderson:

                                                Mark Bantey

 

                                    On behalf of the Canadian Lawyers for International Human Rights:

Joanna Harrington, Assistant Professor, Faculty of Law, University of Western Ontario

Allan McChesney, Consultant

 

March 31, 2003           From the University of New Brunswick, Faculty of Law:

                                                Professor Don Fleming

                                                Professor John McEvoy

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APPENDIX B: SELECTED DOCUMENTS PREPARED FOR OR RECEIVED BY THE COMMITTEE DURING THIS STUDY

Briefs and Other Documents Received from Witnesses and Other Individuals 

1.                  Action Canada for Population and Development, Presentation of Jennifer Kitts and Katherine MacDonald and accompanying documents, June 3, 2002

2.                  Action Canada for Population and Development, Article from the Globe and Mail, “Not telling them won’t help” by Katherine MacDonald

3.                  Action Canada for Population and Development, Canadian Medical Association Journal, April 30, 2002, Vol. 166, No. 9

4.                  Action Canada for Population and Development, Statement made by Gilbert Laurin,      Minister Counsellor, Permanent Mission of Canada to the United Nations, at the 27^th      Special Session of the General Assembly, Special Session on Children, May 10, 2002

5.                  Amnesty International, Presentation of Alex Neve,

6.                  Canadian Foundation for the Americas (FOCAL), Presentation of John Graham and accompanying documents, May 6, 2002

7.                  Professor Douglass Cassell, Presentation and accompanying documents, April 29, 2002

8.                  Department of Foreign Affairs and International Trade, Presentations of Alexandra Bugailiskis and John Holmes and accompanying documents, March 18, 2002

9.                  John W. Foster, Presentation and accompanying documents, May 7, 2002

10.              Professor Pierre Foucher, Presentation and accompanying documents, April 15, 2002

11.              Grand Council of the Crees (Eeyou Istchee), Presentation of Roméo Saganash, June 17, 2002

12.              Professor Martha Jackman, “What’s Wrong With Social and Economic Rights?”, (2000) 11 National Journal of Constitutional Law 235-46

13.              Department of Justice Canada, Presentation of Elisabeth Eid, March 18, 2002

14.              Professor Lucie Lamarche, Presentation (French only)

15.              Professor A. Wayne MacKay “The Legislature, the Executive and the Courts: The Delicate Balance of Power” or “Who Is Running This Country Anyway?”

16.              National Association of Women and the Law, Presentation of Andrée Côté, May 27, 2002

17.              Rassemblement canadien pour le Liban “Human Rights Abuse and Democracy Deterioration in Lebanon” February 2002

18.              Rights & Democracy, Note on the “Baby Boy” case

19.              Rights & Democracy, Letter from Professor Rebecca Cook of the University of Toronto to Rights & Democracy regarding Canadian ratification of the American Convention on Human Rights

20.              Rights & Democracy, Paper prepared by John Foster on the San Salvador Protocol and its possible benefits for Canadians

21.              Rights & Democracy, General Comment 28 of the International Covenant on Civil and Political Rights of the United Nations

22.              Rights & Democracy, Short summary of the Awas Tingni case

23.              Rights & Democracy, Brief to the Canadian government regarding ratification of the American Convention on Human Rights, May 19, 2000

24.              Rights & Democracy, “Canadian Ratification of the American Convention on Human Rights” by William A. Schabas

25.              Rights & Democracy, “Understanding and Reservations” by David Matas

26.              Rights & Democracy, “Canadian Ratification of the American Convention on Human Rights: Draft Interpretative Declaration”, As proposed by Professor Rebecca Cook of the University of Toronto in February 2002

27.              Rights & Democracy, Latin American women’s rights organizations’ representatives on Canadian ratification of the American Convention on Human Rights

28.              Rights & Democracy, Letter from David Kilgour, Secretary of State (Latin America and Africa), Department of Foreign Affairs and International Trade, to Warren Allmand, President of Rights & Democracy

29.              The Very Reverend the Honourable Lois Wilson, “Human Rights Linkages Initiative”  Fall 1999 National Consultation, Final Report

30.              Timothy Ross Wilson, Presentation, March 18, 2002

 

Other Documents

1.                  Canada’s position with respect to the American Convention on Human Rights

2.                  The American Convention on Human Rights

3.                  Report on the Fact-Finding Mission to Costa Rica, September 3-7, 2002

4.                  Study of the American Convention on Human Rights: Issues identified and concerns 

raised by the members of the Committee – Suggested topics of discussion

5.                  Summary of Testimony on the American Convention on Human Rights

6.                  The Inter-American System for the Protection of Human Rights:  An overview through

the 2000 Annual Reports of the Inter-American Commission and the Inter-American Courts of Human Rights

7.                  “Action Canada for Population and Development: 2001 Monitoring Report on Children and Adolescents”

8.                  c/o Action Canada for Population and Development: “International Sexual and Reproductive Rights Coalition; A Fact Sheet Series – Basic Information, Key Actions and International Commitments”

9.                  Amnesty International Canada – “Real Security: A Human Rights Agenda for Canada”

10.              Canadian Foundation for the Americas – “Organization of American States: Inter- American Democratic Charter”

11.              “Description, Analysis and Evaluation of the Interamerican Human Rights System from the Viewpoint of a Canadian and a Costa Rican” by Timothy Ross Wilson

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APPENDIX C: SIGNATURES AND CURRENT STATUS OF RATIFICATIONS

AMERICAN CONVENTION ON HUMAN RIGHTS "PACT OF SAN JOSE, COSTA RICA"  

(Adopted at the Inter-American Specialized Conference on Human Rights, 
San José, Costa Rica, 22 November 1969) 

ENTRY INTO FORCE: 18 July 1978, in accordance with Article 74.2 of the Convention. 

DEPOSITORY: OAS General Secretariat (Original instrument and ratifications). 

TEXT: OAS, Treaty Series, Nº 36. 

UN REGISTRATION: 27 August 1979, Nº 17955 *

(* Source: www.cidh.org/basicos/basic4.htm)