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The American Convention on Human Rights: Canada's Present Law and the Effect of Ratification
Published online by Cambridge University Press: 09 March 2016
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INTRODUCTION
On november 13, 1989, Canada signed the Charter of the Organization of the American States and became a member of the Inter-American system upon depositing its instrument of ratification on January 8, 1990. Though Canada held observer status since 1972, until recently it played a passive role with respect to the Organization of American States (OAS). With the growing significance of regional systems in such matters as free trade, economic and ecosystem interdependence, and human rights, however, Canada has decided to become more involved in the Inter-American system.
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- Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 30 , 1993 , pp. 233 - 260
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- Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1992
References
1 Although not participating in the OAS, Canada was an active member of six hemispheric organizations, such as the Pan-American Health Organization.
2 Address by Prime Minister Mulroney, Meeting of Hemispheric Leaders, San Jose, Costa Rica, Oct. 27, 1989; Remarks of the Secretary of State for External Affairs at the Meeting of the Council of the Organization of American States, Washington, DC, Nov. 13, 1989; Canada’s First Year in the Organization of the American States: Implementing the Strategy for Latin America, Jan. 1991.
3 American Convention on Human Rights, adopted Nov. 22, 196g, OAS Doc. A/ser. K/XVI/1.1, doc. 65 rev. 1 corr. 1 ( 1970), OAS Treaty Series 36 (entered into force July 18, 1978 upon deposit of eleventh instrument of ratification).
4 International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, 993 UNTS 3 (in force for Canada Aug. 19, 1976).
5 Although it refers to the American Declaration on the Rights and Duties of Man, not the American Convention, see the memorandum of the Legal Bureau, Department of External Affairs, Dec. 14, 1989, in 28 Canadian Yearbook of International Law 496 ( 1990), which states:
Canadian compliance with the human rights provisions of the OAS Charter and the 1948 American Declaration should not pose any major difficulties since these provisions largely correspond to rights enshrined in the Canadian Charter of Rights and Freedoms and to Canada’s existing international obligations.
6 American Convention on Human Rights, supra note 3, Art. 4(1).
7 Ibid., Art. 4(2)–(6).
8 Inter-American Court of Human Rights, Advisory Opinion OC-10/89, Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, OAS Doc. OAS/Ser.L/V/III.21 doc. 14 (1989).
9 For an explanation of the human rights obligations of OAS member states that are not party to the American Convention, see Buergenthal, Thomas, “The Inter-American System for the Protection of Human Rights,” in Meron, Theodor (ed.), Human Rights in International Law: Legal and Policy Issues 439 (1984)Google Scholar; in relation to Canada, see Schabas, William A., “Substantive and Procedural Hurdles to Canada’s Ratification of the American Convention on Human Rights,” 12 H.R.L.J. 405 (1991).Google Scholar
10 American Convention on Human Rights, supra note 3, Art. 44.
11 Ibid., Art. 45.
12 Ibid., Art. 62.
13 Ibid., Art. 62(1), (2).
14 Ibid., Art. 64.
l5 Buergenthal, supra note g, at 470.
16 As of December 1991, there were eleven advisory opinions by the Inter-American Court on Human Rights.
17 Buergenthal, T., Norris, R., Shelton, D., Protecting Human Rights in the Americas, Selected Problems 3rd ed., 9 (Engel, N.D., 1990).Google Scholar
18 The Canadian Charter of Rights and Freedoms, set forth in the Constitution Act, 1982, s. 7 states: “Everyone has the right to life, liberty and security of the person and the right not to be deprived therof except in accordance with the principles of fundamental justice.”
19 Irwin Toy Ltd. v. A.G. Quebec, [1989] 1 S.C.R. 927, 1001.
20 [1989] 1 S.C.R. 21, 37.
21 The Canadian Charter of Rights and Freedoms, supra note 18, s.11 states: “Any person charged with an offence has the right… (c) not to be compelled to be a witness in proceedings against that person in respect of the offence; … (e) not to be denied reasonable bail without just cause.”
22 R v. C.I.P. Inc., [1992] 1 S.C.R. 843.
23 OAS Off. Rec. OEA/Ser.L/V/II.23 doc. 21. rev. 6 (1948), Art. 1.
24 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention), Nov. 4, 1950, 213 UN Treaty Series 221, Art. 2.
25 Supra note 4, Art. 6.
26 Ibid., Art. 28.
27 Supra note 24, Art. 19(2).
28 Although the European Court of Human Rights has yet to deal with abortion under Art. 2, right to life, it is faced with issues concerning restrictions on abortion. Presently pending before the European Court is an application concerning the legality of restrictions in Ireland on the counselling of pregnant women on the availability of abortions in foreign clinics, see “Open Door Counselling Ltd. and Dublin Well Woman Centre Ltd. and Others v. Ireland,” 12 H.R.LJ. 479 (1991).
29 App. No. 8416/78, 19 Eur. Comm’n H.R. Dec. & Rep. 244 (1980).
30 Nov. 20, 1989, UN Doc. A/RES/44/25.
31 G.A. Res. 1386, UN Doc. A/4354 (1959).
32 Department of External Affairs, Memorandum of the Legal Bureau, Mar. 30, 1989, in 27 Canadian Yearbook of International Law 376, 377 (1989).
33 Ibid., 377.
34 Protection of Life Prior to Birth, Resolution No. 23/81, Case 2141 (United States of America), 1ACHR Annual Report, 1980–81, OAS Doc. OEA/Ser.L/V/ 11.54, doc. 9 rev. 1, 2 H.R.L.J. 110 (1981).
35 American Declaration on the Rights and Duties of Man, supra note 23, Art. 1.
36 2 H.R.L.J. no, 110, 117 (1981).
37 For a more thorough review of the history of the drafting of the right to life in the American Convention, see Schabas, supra note 9; Colon-Collazo, J., “A Legislative History of the Right to Life in the Inter-American System,” in Ramcharan, B.G. (ed.), The Right to life in International Law (1985).Google Scholar
38 See Francisco Aguilar-Urbina, Jose, “An Overview of the Main Differences between the Systems Established by the Optional Protocol to the ICCPR and the ACHR As Regards Individual Communications,” [1991–1992] Can. H.R.Y.B. 127, 134, n. 26,Google Scholar in which Prof. Aguilar-Urbina, a member of the UN Human Rights Committee, puts forward this position.
39 [1988] 1 S.C.R. 30.
40 S. 287 (previously s. 251 )of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (as amended), was struck down by reason of its violation of s. 7 of the Charter.
41 Art. 75 states: “This 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.” The Vienna Convention on the Law of Treaties, Art. 19, prohibits reservations where they would be incompatible with the object and purpose of the Convention.
42 American Convention on Human Rights, supra note 3, Art. 27.
43 Restrictions to the Death Penalty (Art. 4(2), (4) American Convention on Human Rights), Advisory Opinion OC-3/83, Sept. 8, 1983, Series A, No. 3.
44 Ibid., 63 (emphasis added).
45 OAS Doc. OEA/Ser.Lv/ll.71, Doc. 6 rev. 1, at 62.
46 S.C. 1974-75-76. c- 105
47 R.S.C. 1985, c. N-5, Parts IV-IX “Code of Service Discipline.”
48 Supra note 4, Art. 6(5).
49 International Covenant on Civil and Political Rights: Report of Canada on Implementation of the Provisions of the Covenant, Mar. 1979, No. S2-83-1979 (Ottawa: Supply and Services Canada, 1979).
50 Ibid., 22.
51 Supplementary Report of Canada on die Application of die Provisions of the International Covenant on Civil and Political Rights in Response to Questions Posed by the Human Rights Committee in March 1980, Mar. 1983 (Ottawa: Secretary of State, Canada, 1983).
52 Ibid., 29.
53 Ibid., 30.
54 Second and Third Reports of Canada, International Covenant on Civil and Political Rights, No. Ci96-54/1990E (Ottawa: Human Rights Directorate, Multiculturalism and Citizenship, Canada, 1990).
55 Ibid., 5.
56 See Application of the Death Penalty on Juveniles in the United States, Res. No. 3/87, Case 9647 (United States), Mar. 27, 1987, 8 H.R.L.J. 345 (1987). At present there are only six countries that impose the death penalty for criminal offences on individuals who were under the age of eighteen years old at the time of the offence: Bangladesh, Pakistan, Iran, Iraq, Nigeria, and the United States. Assuming there is a rule of customary international law, Canada would not be in a position to claim persistent objector status.
57 Ibid., 345. The Inter-American Commission drew two conclusions regarding the characterization of this rule as a peremptory norm: first, that it was a peremptory norm of the member states of the OAS (which may be questioned on the basis that it is not derived from the international community as a whole), and second, that the age of this prohibition had not been conclusively determined.
58 Second Optional Protocol to the International Covenant on Civil and Political Rights Aimed at Abolition of Death Penalty, Off. Doc. G.A., 44th Sess., A/Res/44/128; Protocol 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty (European Convention), E.T.S. 114; Additional Protocol to the American Convention on Human Rights to Abolish the Death Penalty, 29 I.L.M. ’447 (1990).
59 There have been two free votes in the Canadian House of Commons on the issue of capital punishment. The first was in 1976 when capital punishment was abolished for criminal offences, and the second on June 30, 1987, when a motion for the reinstatement of capital punishment was defeated.
60 In the UN Economic and Social Council in December 1971, Canada voted in favour of a resolution affirming the goal of abolishing capital punishment. Canada also voted in the UN General Assembly in favour of the Second Optional Protocol to the International Covenant on Civil and Political Rights, which called for measures to abolish the death penalty: G.A. Res. 44/128 adopted Dec. 15, 1989. See also Kindler v. Canada (Minister of Justice) (1991), 67 C.C.C. (3d) 1, 29–30 per Cory, J.(dissenting) (discussion of Canada’s international commitments).
61 See comments by Justices of the Supreme Court of Canada on the appropriateness of capital punishment in Canadian society, in Kindler v. Canada (Minister of Justice), supra note 60 per La Forest, J. at 10–11; per Sopinka, J.(dissenting) at 16–17; per Cory, J. (dissenting) at 27–38. See also recent developments in international human rights law, supra note 58.
62 4 H.R.L.J. 339, 353 (1983).
63 Criminal Code of Canada, R.S.C. 1985, c. C-46, s. 503. Pursuant to s. 515 of the Criminal Code, a justice cannot grant release to an accused charged with an offence (e.g., murder) that is listed in s. 469 of the Criminal Code; such an accused is subject to a different release procedure.
64 Ibid., s. 515(4). See e.g. R.v. Bielefeld, (1981), 64 C.C.C.(2d) 216 (B.C.S.C.), in which it was held that a condition related to the prevention of the commisssion of further offences was validly imposed.
65 Supra note 4, Art. 14(3)(d).
66 Supranote 24, Art. 6(3)(c).
67 Exceptions to the Exhaustion of Domestic Remedies, Advisory Opinion OC-1 1/90, Aug. 10, 1990, Series A, No. 11, 12 H.R.L.J. 20, 22 (1991).
68 [1990] 1 S.C.R. 190.
69 Ibid., 214–15.
70 R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. CA.).
71 See Deutsch v. Law Society of Upper Canada Legal Aid Fund (1985), 11 O.A.C. 30 (Ont. Div. Ct.) (reference to the Hays Joyal Committee Minutes in which Justice Minister Jean Chretien argued that free legal assistance was adequately covered by provincial legal aid plans and that the right to free legal assistance should not be entrenched in the Charter).
72 American Convention on Human Rights, supra note 3, Art. 15(1).
73 Ibid., Art. 9.
74 Re Mitchell and R. (1984), 6 C.C.C. (3d) 193 (Ont. H.C.).
75 [1987] 2 S.C.R. 512.
76 Ibid., 527.
77 In responding to two communications submitted to the Human Rights Committee concerning the right to retroactivity of a lighter penalty in Canada, the Committee essentially held that Art. 15 of the ICCPR was inapplicable in the circumstances of each case. See Van Duzenv. CanadaNo. 50/1979, Apr. 7, 1982, 3 H.R.LJ. 181 (1982); Maclsaac v. Canada No. 55/ 1979, Oct. 14, 1982, 3 H.R.L.J. 218 (1982).
78 Second and Third Reports of Canada, International Covenant on Civil and Political Rights, supra note 54, at 14.
79 [1990] 2 S.C.R. 633.
80 [1987] 2 S.C.R. 636.
81 Supra note 63, ss. 229(c), 230.
82 See R.v. Sarson ( 1992), 73 C.C.C. (3d) 1 (Ont. Ct. Gen. Div.); André Chartrand ν. Director of luciere Detention Centre (Quebec Court of Appeal, unreported, July 29, 1992; leave to apply to S.C.C, filed Oct. 6, 1992).
83 E.g., Smith v. The Queen, [1987] ι S.C.R. 1045.
84 See the Charter, supra note 18, s. 1. Although s. ι of the Charter applies to all rights, its application is limited with respect to certain rights. For example, it is hard to imagine a punishment found to be cruel and unusual being demonstrably justified in a free and democratic society.
85 Ibid.
86 American Convention on Human Rights, supra note 3, Arts. 8(5), 12(3), 13(a). (5). 15. 16(2), 21(2), 22(3), (4).
87 Ibid., Art. 30. For the Inter-American Court’s interpretation of “in accordance with laws” in Art. go of the American Convention, see “The Word ’Laws’ in Article 30 of the American Convention on Human Rights,” Advisory Opinion OC-6/86, Series A, No. 6, in 7 H.R.L.J. 231 (1986).
88 Habeas Corpus in Emergency Situations (Non Derogable Guarantee), Advisory Opinion OC-8/87, Series A, No. 8, in 9 H.R.L.J. 94 (1988).
89 See Ford v. Qhiebec (Attorney Generat), [1988] 2 S.C.R. 712.
90 An Act Respecting the Constitution Act, 1982, S.Q. 1982, c. 21; S.G.E.U. Dispute Settlement Act, S.S. 1984-85-86, c. 1 11 ; An Act to Amend the Act to Promote the Development of Agricultural Operations, S.Q. 1986, c. 54; An Act to Again Amend the Education Act and the Act Respecting the Conseil Supérieur de l’Éducation and to Amend the Act Respecting the Ministère de l’Éducation, S.Q. 1986, c. 101; An Act to Amend Various Legislation Respecting the Pension Plans of the Public and Parapublic Sectors, S.Q. 1987, c. 47.
91 An Act to Amend the Charter of the French Language, S.Q. 1988, c. 54.
92 Schabas, William A., International Human Rights Law and the Canadian Charier 9 (Carswell, 1991).Google Scholar
93 S.C. 1988, c. 29.
94 For a comprehensive analysis of domestic law as implementing legislation, see Anne F. Bayefsky, International Human Rights Law: Use in Canadian Charter of Rights and Freedoms Litigation 23–105 (Toronto: Butterworths, 1992).
95 3 Canadian Yearbook of International Law 336, 340 (1965).
96 See the Department of the Secretary of State, Memorandum of Legal Bureau, Oct. 26, 1980, ibid.,vol. 19,335, 335–37 (1981) ; Department of the Secretary of State, Memorandum of Legal Bureau, Jan. 19, 1988, ibid., vol. 26, 328, 328–29 (1988); Department of the Secretary of State, Memorandum of Legal Bureau, Apr. 4, 1989, ibid., vol. 27, 389, 389–390 (1989).
97 Ibid., vol. 7, 324, 325 (1969).
98 Department of the Secretary of State, Letter of Legal Bureau, Mar. 17, 1982, ibid., vol. 21, 319, 320 (1983).
99 Statement of Canada’s Ambassador to the United Nations, Geneva, Mar. 25, 1980, Ibid., vol. 19, 338 (1981).
100 Adopted Dec. 21, 1965, 660 UN Treaty Series 195.
101 Adopted Dec. 18, 1979, [1982] Can. T.S. 31.
102 Buergenthal, supra note 9, at 445.
103 Ibid., 446.
104 Canada’s First Year in the Organization of American States: Implementing the Strategy for Latin America, Jan. 1991.
105 Report of Canada’s First Year in the Organization of American States, Jan. 1991, at 6,13.
106 Hubert, Jean-Paul, “Canada’s Initial Experience as a New Member of the OAS,” Canada in the Americas: Agenda for the 90s, A Report of a Conference On Canada’s Foreign Policy by the Group of 78, at 18, (Ottawa, 1991).Google Scholar