Beyond Self-Congratulations: the Charter at 25 in an International Perspective by Louise Arbour, United Nations High Commissioner for Human Rights

“25th Anniversary of the Charter Symposium:
A Tribute to Chief Justice
R. Roy McMurtry”


Toronto, 12 April 2007



Chief Justice McMurtry,
Dean Monahan,
Dear friends,

Introduction

As always, I am delighted to be with you. Particularly so this time as this event is also a tribute to Chief Justice McMurtry. I feel very privileged to have served, although very briefly, under his leadership in the Ontario Court of Appeal, and to be associated today with an event that celebrates his spectacular accomplishments in the legal profession, and above all, his immense contribution to this province and this country. It is fitting that this tribute be incorporated as part of an event that also celebrates the 25th anniversary of the Canadian Charter of Rights and Freedoms (Charter). Particularly for our younger colleagues sitting in this room, it must feel like having lunch with the fathers of confederation.

I am indeed grateful that you have given me this opportunity to share with you a few reflections on where we are, 25 years into a constitutional democracy anchored in the protection of human rights. I speak of course from an interesting vantage point, with bi-focals, so to speak, having gone to where we came from, that is the international human rights framework. This link between our Charter work and the founding international document which inspired it was interestingly put in a recent issue of the Western Standard (January 15, 2007, p. 37) by a Mr Terry O’Neill who suggested that the late John Humphrey, whose work was so instrumental to the elaboration of the Universal Declaration of Human Rights, would probably feel betrayed by the fact that I, a left wing Canadian judicial activist, who as a judge routinely acted as though I was above the law and the constitution, was now at the center of a storm engulfing the United Nations human rights work.

I believe that John Humphrey would be immensely pleased to see how the Universal Declaration has taken roots, both internationally and in Canada, and that he would only deplore the lack of robust implementation mechanisms internationally, in parallel to those provided by judicial review in Canada.


Ladies and Gentlemen,

At this important occasion of the 25th anniversary of the Canadian Charter of Rights and Freedoms (Charter), I intend to situate the Canadian human rights evolution in an international context, noting that next year there will be the celebrations for the 60th anniversary of the Universal Declaration of Human Rights Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948., which marked the international community’s commitment to fundamentally alter the relationship between the state and the individual and which sparked the steady and fast-growing development of international law as it relates to persons, new subjects of international law.

I wish to reflect on the influence that the “rights revolution” See inter alia Lorraine E. Weinrib, “Canada’s Charter: Comparative Influences, International Stature”, in The Charter at twenty : law and practice 2002, ed. Debra M McAllister and Adam M Dodek (Canadian Bar Association, Ontario Branch, 2002), 491; Michael Ignatieff, “Challenges for the Future”, (2001) The Canadian Bar Review 209, 211. at the international level continues to have on the Canadian Charter. I propose to first look at the context of adoption of the Charter and the characteristics that make it the agent of positive social change that it has become. Secondly, I will reflect on two areas where the interaction between international legal values and our domestic human rights system can be rendered more effective. I will conclude by identifying some key challenges ahead for enhanced rights protection in this country.

1- The Charter: a Domestic Instrument with an International Purpose and Stature

a) 1982: Impetus for an Entrenched Charter of Rights: The Rise of Rights and the Rise of Law

The Charter situates itself in a post-war momentum at the international level that saw a proliferation of national and international rights-protection instruments, starting with the Universal Declaration. The international community expresses in the Declaration in powerful and somewhat symbolic language its repulsion at the excesses and barbarity of the war itself and of fascism.

Though Canada was part of the post World War II move for rights development before the enactment of the Charter, through legislation such as the Canadian Bill of Rights and provincial human rights codes, the evolution of human rights law had become stagnant and many areas were at a standstill, notably in the field of equality rights. The Charter marks a significant move from Parliamentary to constitutional democracy and a desire to prevent, by empowering disadvantaged and minority groups, a possible rupture of the country’s fabric and unity - a threat which was, two years after Quebec’s first referendum, deeply influencing the political climate in Canada. While distinctive in ways that characterize Canada’s particular historical and political features, the content of the Charter was heavily influenced by international rights-protection instruments and one of its primary purpose was to bring Canada in compliance with international law. Ibid, at 495.

The interconnectedness of domestic efforts worldwide to move to new rights-based democracies with similar developments at the supra-national level has sparked the will to draw from international human rights instruments as well as undertake comparative research in other jurisdictions. Canada has become an exporter of its home-made human rights system and solutions, and a growing importer of international and foreign human rights experiences and standards. As Ignatieff rightly pointed out, “the world is interested in us because we have the world’s problems - how to make a multi-cultural, multi-ethnic, multi-national, multi-lingual state cohere in an age of rights”. Michael Ignatieff, “Challenges for the Future”, at 212. And for the same reasons, I would add, so should we be interested in the world.

The adoption of the Charter also situates itself in a period which has seen a sharp increase in the use of legislative action to effect societal changes. See Mary Jane Mossman, ‘The Charter and Access to Justice in Canada’, in Charting the Consequences: The Impact of Charter Rights on Canadian Law and Politics, ed. David Schneiderman and Kate Sutherland (Toronto: University of Toronto Press 1997), 274. Notably coinciding with the development at the international level of the law of human rights, post-war legislation was focused on the needs of groups previously disadvantaged by law or unprotected by it, and designed to “promote social change on behalf of the “have-nots”, as one commentator put it. M. Cappelletti and Bryant Garth, ‘Access to Justice as a Focus for Research’, Windsor Yearbook of Access to Justice, vol. 1 (1981), xvi-xvii, cited in Mary Jane Mossman, ‘The Charter and Access to Justice in Canada’, op. cit., 274. At an accrued pace, the establishment of law reform commissions in the 1970s in Canada showed the importance of the process of reform through the legal system and the possibilities of using the law to affect positively the lives of ordinary citizens.

Arguably, the pre-Charter law-based initiatives aimed at social change, such as the law reform commissions, as well as the development of federal and provincial human rights legislation and specialized agencies and tribunals - including the disappointing performance of the Canadian Bill of Rights - have contributed significantly to a political climate open to an entrenched rights document and, later, to a judicial climate receptive to generous interpretations of the Charter guarantees. See Mary Jane Mossman, supra, at 275.

The Charter is thus Canada’s response to various trends that developed world-wide after the Second World War. It is fundamentally an internationally-oriented document that found its own ways to respond to the country’s domestic specificities. Let us now see briefly how (or whether) the Charter has been a catalyst for positive social change in the country and which of its features allowed it to play that role.

b) The Charter as a Catalyst for Positive Social Change in Canada: the Rise of Democracy and of Judicial Review

If the patriation of the Constitution represented for some an expression of self-determination by the country, the Charter represented a greater consensus as a statement of the fundamental values that that country would endeavour to defend. See inter alia remarks of the Right Honourable Beverley McLachlin, Canadian Rights and Freedoms: 20 Years Under the Charter, “Coming of Age: Canadian Nationhood and the Charter of Rights”, 17 April 2002. In the 25 years since its adoption, we have seen a growing will by citizens and civil society organizations to meet the challenge of building a more just, more democratic and more humane country, and world, in conformity with the principles of the Charter. The Charter has operated a “local” translation of internationally recognized minimal common denominators. It has permitted rights-holders to assert ownership of these rights and has allowed those tasked to protect or interpret these rights to consider them as our home-made response to discrimination, unfairness or abuse.

The Charter has in my view clearly been a catalyst for positive social change in the country, in line with similar developments at the international level triggered by the post-war “rights revolution”. Some features of the Charter however mark a clearly distinctive Canadian approach and have contributed greatly to the social change it has stimulated in the last 25 years. Indeed, though the normative content is very much in line with international standards, with some notable exceptions such as the absence of property rights, the implementation structure of the Charter was truly imaginative, and has contributed greatly to its early and lasting impact.

Strikingly, the Charter begins by articulating the framework for the outer limits of the exercise of rights. The early jurisprudential development of the s. 1 limitations framework proved critical in the further development of the broader rights jurisprudence. Hesitancy and false starts there could indeed have paralysed the generous expression of substantive rights. Moreover, s.33, the “political trump card” has proven to be a more theoretical than real impediment to rights protection, but has served to preserve the notional preference for the tyranny of the majority over the potential tyranny of the judiciary.

The three years moratorium on equality rights also proved very farsighted. It allowed judges to flex their intellectual muscles and express a new found audacity in the familiar terrain of criminal procedure and fair trial standards, a field in which they had not historically been afraid to stand up to Parliaments in the protection of the vulnerable. It is on the strength of those early but easier decisions that they could tackle the more challenging s. 15 issues which were seen to involve the kind of social engineering that judges would have been hesitant to embark upon. On the strength of three years of work on legal rights and s. 1, truly progressive development of human rights law became possible. It is far from certain that we would be where we are today if the first Charter challenges had called on expanding the enumerated list in s.15 or had impeached formal equality. The notable contribution of the Court Challenges Program, unfortunately cancelled recently, as well as the remarkable contribution of the Women’s Legal Education and Action Fund (LEAF) and others to the articulation of fundamental jurisprudential concepts such as substantive equality also led the way for the evolution of the Charter as a solid instrument of social progress in the country.

Apart from these features of the Charter’s structure and the particularities of its early implementation, we can safely advance that the driving force of the development of human rights law in Canada has been judicial review. Many early landmark cases became the solid pillars for the meaningful judicial development of substantive human rights. In that regard, none was probably more significant, then and now, than the BC Motor Vehicle Reference Reference re Section 94(2) of the Motor Vehicle Act, [1985] 2 S.C.R. 486, to get the courts out of process and into substance. Not that process should be discredited altogether. In fact, criminal procedure and evidence litigation, like judicial review on federalism grounds, were common features of our legal system, and often a proxy for a true “rights” debate. See for instance Roncarelli v. Duplessis, [1959] S.C.R. 121 ++++++

But the Charter has clearly expanded the fields and depth of judicial intervention, thereby opening the door to an appearance of activism or increased politicization. The constitutional power of the courts, criticized by some as undemocratic, represents in my view a fundamentally democratic choice, that of articulating the constraints under which the majority can impose its will, and the limits to its potential override of protected interests. Judicial review is therefore the democratic choice to be governed by the Rule of law. See, generally, A. Barak, The Judge in a Democracy (Princeton University Press: Princeton, 2006) That choice effectively provides a megaphone to the voices of those who are not otherwise always heard loudly enough in other democratic institutions. Lacking a broad political base and faced with a lack of good faith or will by governments to negotiate on sensitive issues, many groups have chosen the courts as a forum of choice for the advancement of their rights. Land claims of indigenous peoples or social demands by gays and lesbians are good examples.

Of course, this judicial influence on the development of the law has not acted in isolation. The particularities of the Charter, notably its limitation and override clauses call for the active role of the other branches of the governance and allow for the so called dialogue between the judges and the legislatures. The Charter has also contributed to the development of a rights consciousness at the administrative level, which, in the view of some J. B. Kelly, Governing with the Charter: Legislative and Judicial Activism and Framers’ Intent (UBC Press : Vancouver, 2005), adds a layer of protection for legislation to be in compliance with Charter rights, and in the view of others McGill Conference : The Charter @ 25, February 2007, presentation by Andrew Petter, unpublished., legalizes politics and grants unprecedented powers to lawyers within the governance structure.

Today’s conference will cover various aspects of this interesting issue. Allow me simply to contrast the advances that are made possible by the adjudicative power of courts in Canada with the non-adjudicative international framework. A quarter century has sufficed to assure the irreversible impact of human rights in Canada, whereas similar progress has taken some 60 years in the non-coercitive international setting.

The structure espoused by the Charter highlights that judicial review is an essential feature of effective rights protection, one that is missing in many countries who work under the same substantive standards, but with less successful implementation outcomes. The same can be said about the international arena.

Indeed, international human rights law is somewhat limited in its development by the absence of effectively binding jurisprudence. The reporting system to the treaty bodies, the expert committees that monitor implementation of international human rights treaties, has proved a useful mechanism for the improvement of states’ compliance with international standards, or at least a useful mechanism to stimulate discussion and invite explanation for human rights shortcomings. Decisions on individual complaints have also proved valuable and have allowed for increased dialogue between states and the international bodies, though the individual complaints mechanism remains severely under-utilized.

However, it is clear that the binding nature of decisions by domestic courts, or by regional human rights courts such as the European Court of Human Rights The High Contracting Parties to the European Convention on Human Rights have committed themselves to secure to everyone within their jurisdiction the rights and freedoms defined in Section I of the Convention and, in this respect, have undertaken to “abide by the final judgments of the Court in any case to which they are parties” (Article 46 paragraph 1, of the European Convention on Human Rights). In accordance with Article 46 paragraph 2, the Committee of Ministers of the Council of Europe is responsible for the supervision of the execution of the judgments of the European Court of Human Rights. Compare with the less demanding undertaking by State Parties to the ICCPR “to submit reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made in the enjoyment of those rights” (article 46 (1)). or the Inter-American Court of Human Rights Article 68 (1) of the American Convention on Human Rights states: “The States Parties to the Convention undertake to comply with the judgment of the Court in any case to which they are parties.”, allows for a more sustained and rigorous development of the law.

Having said that, the dialogue stirred up by the reporting process at the international level is highly useful. In addition to the government report, the treaty bodies may receive information on a country’s human rights situation from other sources, including non-governmental organizations, UN agencies, other intergovernmental organizations, academic institutions and the press. Even accounting for generous intervention access, this inclusive process is very different from the judicial process, where the court is asked to determine specific issues relating to the situation of one group or individual, though the judgement effectively impacts on many. The broader and more consensual international process may have contributed to the development of certain rights at the international level that have suffered from a lack of judicial recognition in domestic courts. Economic, social and cultural rights (ESCR), for example, are significantly more advanced at the international level than in Canada. I shall come back briefly to that.

The Charter and the considerable impact of judicial review on the development of human rights law may have obscured the relevance and usefulness of parallel processes of consultation and dialogue on human rights issues, like the ones that had been successfully conducted in the past by the Law Reform Commission of Canada (LRCC).

Though the Charter has raised the rights consciousness in Canada, the country still lacks an entity tasked to evaluate human rights compliance. The federal human rights commission has a very targeted mandate, and Senate and Parliament standing committees, as well as administrative sensitivity, can only fulfill part of the task. Commissions of inquiry, true Canadian features, sit somewhere between courts and other oversight mechanisms and have played a crucial role on many important human rights issues, but they remain ad hoc initiatives. Countries such as Australia, New Zealand and Britain where courts cannot invalidate legislation for violation of human rights usually have, perhaps consequentially, strong legislatures and mechanisms to ensure that bills conform to rights guarantees. See generally J. B. Kelly, Governing with the Charter: Legislative and Judicial Activism and Framers’ Intent (UBC Press : Vancouver, 2005), p. 5. But there is no valid reason not to have both: strong judicial oversight and strong formal mechanisms to ensure legislative compliance.

Ladies and Gentlemen,

The Charter was not born out of a sudden and unique Canadian human rights impulse nor is it evolving in an isolated twenty-first century Canada. International human rights law was launched in an attempt to address universal concerns anchored in the desire to sustain peace and security and to affirm the dignity and worth of every human being. Half a century later, the same pursuits have not lost their acuity, either internationally or in Canada. Canada has much to gain and nothing to loose in turning to international tools for resolving increasingly complex or subtle domestic issues. This can be done by using more systematically international principles in the interpretation of the Charter. International monitoring bodies have frequently highlighted the need for courts, within limits of appropriate exercise of their functions of judicial review, to take account of rights protected by international treaties, particularly where those rights are not explicitly protected by the Charter. It is notably the case with the rights protected by the International Covenant on Economic, Social and Cultural Rights (ICESCR), as Canada was reminded recently by the relevant Committee in line with its general comment No. 9 (1998). E/C.12/CAN/CO/4 E/C.12/CAN/CO/5 (CESCR, 2006), para. 36

Opening up to the importance of the international standards also plays out in how Canada succeeds in implementing at home the norms to which it commits abroad and in how it interacts with the international and regional human rights protection systems, two issues to which I now turn.

2. Implementation of Universal Values and Involvement in Regional and International Protection Systems

a) Domestic Implementation of International Human Rights Obligations

Canada often prides itself of being a party to “all 6 major international human rights conventions” (my addition) See for instance Department of Foreign Affaires’ website : http://www.dfait-maeci.gc.ca/foreign_policy/human-rights/hr1-rights-en.asp Well, that is missing one small point: there are 9, not 6, major human rights treaties, and Canada has not yet ratified the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, nor has it, for that matter, ratified other important instruments such as the Optional Protocol to the UN Convention against Torture and other forms of Cruel, Inhuma

Having said that, ratification can be partly window-dressing if it cannot be translated in actual domestic implementation of the international norm. In that regard, Canada’s constitutional structure presents particular challenges, which have often been highlighted by courts and commentators, and which, at times, have been argued disingenuously by Canada to justify indefensible positions regarding certain rights at the international level. See LaFontaine-Baldwin Symposium 2005 Lecture by Louise Arbour, available online at http://www.lafontaine-baldwin.com/speeches/2005/ (last visited 19 February 2007): “The low-water mark in Canada's international stance on social and economic rights occurred towards the final stages of the negotiation process on the Draft Universal Declaration, when Canada elected to abstain from a critical vote on the Declaration in the Committee of the U.N General Assembly charged with human rights issues, one of only a small handful of countries to do so While ultimately Canada did vote in favour of the Declaration in the full General Assembly, the initial abstention decision embarrassed Canada internationally The reasons for the abstention related very directly to misgivings which prevailed then in official circles in Canada at the inclusion of socio-economic rights in the Declaration In Pearson's statement to the General Assembly on 10 December 1948, however, the true nature of these misgivings were not apparent on the face of his words Rather, Pearson challenged the vague and "imprecise" nature of the language used in the draft Declaration, and noted that Canada had abstained on certain articles - notably, the right to education and the right to cultural life - on the basis that these matters were within provincial rather than Federal jurisdiction While true that there were provincial administrations that were concerned about Federal interference, the stated justifications for the Canadian abstention simply do not hold up to critical scrutiny.” (my emphasis) However, these constitutional specificities should not bar the fulfilment of Canada’s international obligations Creative ways can be found to alleviate any existing hurdles

Without entering into the complex intricacies of Canada’s relationship to international law, I want to mention briefly some of Canada’s constitutional particularities that impact on the implementation of international human rights norms and which, in my view, need to be counterbalanced with creative solutions. Those particularities include the fact that treaty ratification is an Executive act not formally requiring Parliamentary approval or involvement, hence the burdensome need for legislative incorporation. However, human rights treaties are typically adhered to on the basis that existing laws already conform to the treaty obligations. Whereas the Executive can assert, and so reports to international treaty bodies, that the international norm is already implemented, courts, as Stephen Toope puts it, “have to find the mechanism of implementation in the interpretation of legislative texts or of the common law created before the ratification of the supposedly implemented treaty”. S. J. Toope, “The Uses of Metaphor: International Law and the Supreme Court of Canada”, 2001 Canadian Bar Review 534, 538. This situation has proven complex, and despite the existence of rules and presumptions aimed at regulating the use of international law before Canadian courts, these have not been used systematically, nor have they followed a consistent methodological framework.

Another complexity of the Canadian system is of course the fact that the division of powers within the federation gives no power to the federal Executive, who is alone empowered to enter into international treaties, to implement them in areas of provincial jurisdiction. “Labour Conventions case”, Canada (A-G) v. Ontario (A-G), [1937] A.C. 326 at 347 (P.C.)

Needless to say, internationally, such internal jurisdictional constraints do not excuse a country from fulfilling its legal obligations.

The existing consultative federal-provincial-territorial Continuing Committees of Officials for Human Rights could be expanded to more fully address these issues. In any event, there should more systematic review of new legislation for consistency with conventional obligations following adherence to a treaty.

It may be perceived at times from the Canadian perspective that UN treaty bodies’ recommendations are difficult to implement. They sometimes may appear to be disconnected from the Canadian reality, for instance where the international body recommends a modification of the Constitution, seemingly ignoring the inherent complexity of such a process. For instance, see the recommendation of the Committee on the Elimination of Racial Discrimination (CERD), A/57/18(SUPP) (2002): “The Committee notes that the Canadian Charter of Rights and Freedoms does not impose obligations on non-State actors and suggests that the possibility of enlarging the scope of this instrument in that respect be considered. “ (para. 327). It is sometimes suggested less explicitly, like in the Waldman decision, supra, where the Committee ordered Canada to provide a remedy for a violation of the Covenant, while recognizing the violation had at its source a constitutional requirement: “The Committee begins by noting that the fact that a distinction is enshrined in the Constitution does not render it reasonable and objective.” (para. 10.4) The decisions of treaty bodies can also be resented by the Canadian authorities when they contradict not only their position but also the valued decisions of Canadian quasi-judicial or judicial bodies. The quality of Canada’s domestic adjudicative process may thus become a justification for non-compliance with international decisions. See for instance some Committee against Torture (CAT) cases in which Interim Measures were not respected: T.P.S. v. Canada (99/1997) - Committee found no violation of any article of the Convention. However, the complainant had been deported in spite of the interim measures request it expressed that it was "deeply concerned" by the fact that the State party did not accede to its request for interim measures; see also a CAT case in which Canada rejected merits finding of the Committee: Dadar v. Canada (258/2004) - State Party had acceded to the Interim Measures not to expel request. However, it rejected the Committee's Views on a violation of article 3 in the event of removal, and deported the complainant subsequent to the Decision. See also a case from the Human Rights Committee, Ahani v. Canada (1051/2002) - where Canada refused to comply with a request fro interim measures, attracting severe criticism from the Committee: “ 8.2 Interim measures pursuant to rule 86 of the Committee's rules adopted in conformity with article 39 of the Covenant, are essential to the Committee's role under the Protocol. Flouting of the Rule, especially by irreversible measures such as the execution of the alleged victim or his/her deportation from a State party to face torture or death in another country, undermines the protection of Covenant rights through the Optional Protocol.” These difficulties should be addressed through the ongoing dialogue between these bodies and Canada that is created by the very process of reporting. This dialogue is not a metaphor, such as that employed by Peter Hogg to reflect the activities of the legislatures and the courts on a given constitutional issue. It is actually an interactive dialogue with the reporting government.

As credible commentators in Canada have pointed out See inter alia Second Report of the Standing Senate Committee on Human Rights of December 2001 entitled “Promises to Keep: Implementing Canada’s Human Rights Obligations”, available online at http://www.parl.gc.ca/37/1/parlbus/commbus/senate/com-e/huma-e/rep-e/rep02dec01-e.htm (last visited 19 February 2007) and as was recently observed by the UN Human Rights Committee, there is still in Canada a lack of transparent, accountable and inclusive procedures by which oversight of the implementation of the international human rights obligations is ensured, with a view, in particular, to reporting publicly on any deficiencies CCPR/C/CAN/CO/5, 20 April 2006, available online at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/7616e3478238be01c12570ae00397f5d?Opendocument (last visited 19 February 2007); this has been echoed inter alia by the Committee on Economic, Social and Cultural Rights, E/C.12/CAN/CO/4 E/C.12/CAN/CO/5, May 2006, para 12, and the Report of the Committee on the Elimination of Discrimination against Women, Twenty-eighth session
(2003) (CEDAW), A/58/38, para. 349: “The Committee acknowledges the State party’s complex federal, provincial and territorial political and legal structures. However, it underlines the federal Government’s principal responsibility in implementing the Convention. The Committee is concerned that the federal Government does not seem to have the power to ensure that governments establish legal and other measures in order to fully implement the Convention in a coherent and consistent manner.”

While in certain areas Canadian law surpasses international human rights requirements (such as non-discrimination on the basis of sexual orientation), Canada needs to find creative ways to be respectful of both its constitutional specificity and of its international obligations. Without meaningful implementation of international norms here, Canada impairs its credibility as an advocate of the expansion of international human rights standards abroad.

This holds true also for its involvement within the regional human rights system.

b) Full Integration to the Human Rights System of the Americas

Ladies and Gentlemen,

Canada’s international human rights reputation derives in part from its support of the international human rights protection system. However, Canada’s omission to accede to the key human rights instrument of this region, the American Convention on Human Rights (American Convention), is a conspicuous omission, and a hardly consistent and credible one.

It is sometimes advanced that Canada does not need to ratify the American Convention because Canadians’ human rights would not be better protected, the Charter affording a higher level of protection. This is hardly a persuasive argument.

Ratification of international human rights treaties and the recognition of the competence of their monitoring bodies bring another level of protection, particularly in a country like Canada where the incorporation practice of international human rights treaties limits claimants’ possibilities to invoke the rights protected therein directly before Canadian courts. As the Europe-wide ratification of the European Convention on Human Rights has demonstrated, the universal adoption of common norms is essential to the credibility and efficiency of any legal system, and for the development of a regional human rights culture. Canada's full participation in the inter-American human rights system is central to its strengthening. See inter alia Eighteenth Report of the Standing Senate Committee on Human Rights entitled "Canadian Adherence to the American Convention on Human Rights: It is Time to Proceed” (May 2005), available online at http://www.parl.gc.ca/38/1/parlbus/commbus/senate/Com-e/huma-e/rep-e/rep18may05-e.htm (last visited 19 February 2007); the Government Response to the Eighteenth Report of the Standing Senate Committee on Human Rights (November 2005), available online at http://geo.international.gc.ca/latin-america/latinamerica/whats_new/default-en.asp?id=3957&content_type=2 (last visited 19 February 2007), and the May 2003 Fourth Report of the Standing Senate Committee on Human Rights entitled "Enhancing Canada's Role in the OAS: Canadian Adherence to the American Convention on Human Rights", available online at http://www.parl.gc.ca/37/2/parlbus/commbus/senate/com-e/huma-e/rep-e/rep04may03-e.htm (last visited 19 February 2007) As civil society organizations have pointed out:

“Canada remains a key hemispheric player in advancing both the economic and security agendas. However, Canadian contributions to the emerging Community of the Americas have not been accompanied by a consistent effort to clarify and strengthen Canada's commitment to the inter-American human rights system. The important subject of the Canadian ratification of inter-American human rights instruments has not been openly debated and confusion reigns about the respective concerns of provincial and federal governments.” Joint “letter concerning Canada's commitment to the inter-American human rights system” by Amnesty International Canada, Rights & Democracy and l'Association Québécoise des organismes de coopération internationale, 12 January 2004, available online at http://www.amnesty.ca/canada/news/view.php?load=arcview&article=1188&c=Canada-News (last visited 19 February 2007); see also joint letter by Rights & Democracy and Amnesty International to The Honourable Bill Graham Minister of Foreign Affairs of Canada, May 2004, available online http://www.ichrdd.ca/site/who_we_are/index.php?lang=en&subsection=president&subsubsection=letters_and_speeches&id=649 (last visited 19 Febuary 2007)

Particularly on the upcoming occasion of the 50th anniversary of the entry into force of the American Convention, which will be celebrated in July 2008, I would sincerely encourage Canada to give serious consideration to ratifying this important treaty, its two additional Protocols (on the abolition of the death penalty and on economic, social and cultural rights), as well as the other inter-American instruments for human rights protection (on violence against women, on torture and on forced disappearances), as it has undertaken to do in a timely fashion a little more than a year ago. Government Response to the Eighteenth Report of the Standing Senate Committee on Human Rights,
November 2005, available online at http://geo.international.gc.ca/latin-america/latinamerica/whats_new/default-en.asp?id=3957&content_type=2 (last visited 19 February 2007) I am confident that solutions can be found to existing difficulties, such as that related to women’s reproductive rights It is widely acknowledged that the wording of Article 4.1 of the ACHR on the Right to Life is problematic This article of the ACHR explicitly guarantees the right to life "in general, from the moment of conception" It is a shared view that Article 4.1 stands as a serious obstacle to ratification of the ACHR since it can be interpreted in a manner that seriously interferes with a woman's right to life, liberty and security of the person as understood in Canadian law Ratification would thus have to be made while ensuring that women's rights to reproductive and sexual autonomy are preserved, implying an objective evaluation of the respective merits of reservations, interpretive declarations, conditional interpretive declarations

3) To Live Up to the “Living Tree” Metaphor: Some Critical Challenges Ahead for Rights Protection in Canada

Ladies and Gentlemen,

While we are justified to celebrate the many ways in which the Charter has made our society evolve, I believe that we must acknowledge that it has not yet brought Canada where it committed itself to be in some critical areas such as the protection of ESCR and access to justice for all.

In Canada, social and economic rights have not have been appropriately recognized as rights, and continue, in my view, to be inadequately protected. This accounts for poverty and inequities that are incompatible with the level of social justice that is within our reach. I have discussed this failure before LaFontaine-Baldwin Symposium 2005 Lecture, supra, note X. and have frequently made the case at the international level about the importance of the indivisibility of all human rights and the absence of justification for the historical hesitation of western countries to provide equal protection to ESCR. See for instance Second Annual Transitional Justice Lecture, “Economic and Social Justice for Societies in Transition, New York University School of Law, 25 October 2006, available online at www.ohchr.org International monitoring bodies have often criticized Canada on its ESCR record The Committee on Economic, Social and Cultural Rights (CESCR) has been quite critical, including in its last report, E/C.12/CAN/CO/4 E/C.12/CAN/CO/5, of May 2006, noting that “ most of its 1993 and 1998 recommendations in relation to the second and third periodic reports have not been implemented” and that Canada has not addressed in an effective manner seven principal subjects of concern (para. 11). and I truly believe that recognition of ESCR is the “next frontier” of Charter rights-protection. Debra Parkes, “Social and Economic Rights: The Next Frontier”, in The Charter: Twenty Years and Beyond, the 2002 Isaac Pitblado Lectures, 2002, at II-1.

There is no doubt that the Charter has created a culture of expectations, perhaps even of entitlements. In Canada, the “rights revolution” could not have happened without rights-holders’ access to justice. With the disappointing winding up of the Court Challenges Program, serious difficulties ahead for legal aid programs and the high bar imposed on litigants for obtaining interim costs in Charter litigation See the recent Supreme Court decision in Little Sisters 2, 2007 SCC 2, imposing strict conditions in applying the test for the awarding of interim costs, i.e. advance costs to cover legal expenses, that was formulated in British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371., it may be a good time for the legal profession to come united on the issue of access to justice. I note that Chief Justice McLaughlin and the Canadian Bar Association have put that critical issue on top of their priority list. It is largely through the ingenuity of litigants that protection of human rights in Canada has progressed this far. There is no reason to disempower them in the face of the challenges that lie ahead, be it on environmental issues, minority protection, the reach of equality or the ever present security concerns.

Conclusion

Ladies and Gentlemen,

Central to the position of the Charter in Canadian federalism is the idea that - perhaps counter-intuitively - the greatest protection for individual rights and freedoms comes in large, pluralistic environments. Conversely, the greater danger comes from small, homogeneous communities who lack the imagination and the means to deal effectively with the competing individual claims from within, specially the claims that question the apparent homogeneity.

This also speaks loudly in favour of strong regional and international human rights protection systems, as they serve to push back narrow national horizons to put in full view the claims and aspirations of the whole of the human race.

Thank you. or Degrading Treatment or Punishment Happily, Canada signed, along with 80 other countries the newly adopted Convention on the Rights of Persons with Disabilities when it opened for signature in New York on 30 March Canada however noticeably omitted to sign in Paris in early February 2007 the new and important International Convention for the Protection of All Persons From Enforced Disappearance Ratification of treaties is not only an international symbolic gesture showing Canada’s commitment to human rights It also sends a powerful message at home that Canada is willing to provide a protection of all human rights at least as strong as the basic common standards agreed to by the community of states or other means aimed at the same rights protection objective Not only would Canadians benefit from fully joining the inter-American human rights system, but undoubtedly people from across the Americas would gain from Canada's active engagement with the regional human rights system, as the wider international community has benefited over the years from such involvement