Dangling
Rights: The
Constitutional Gap
January 2016
Click square for index
Last year (2015)
was the 30th year after the
Supreme Court 1985 Singh
decision. The decision is heralded as
a high point for non-citizen access to
rights in the Canadian
Charter of Rights and Freedoms. After
more than thirty years of Supreme Court
case law and sober reflection by the legal
profession, the rights in the Canadian
Charter of Rights and Freedoms still
dangle disconnected from the civil rights
promised to non-citizens - and indeed to
everyone - by the international treaties
solemnly ratified.
Legal opinion
largely rejoices in references to
international rights in the nuances of
the Supreme Court Baker
and Kathsamany
decisions that make minute
adjustments to federal guidelines and
notions of fairness in discretionary
administrative decision-making. While
not denying the elegance of some
academic thinking and small useful
advances, the sad truth is that such
discretionary decisions can still
result in non-citizens’ being returned
to a plausible risk of at least cruel
treatment, without an impartial
adjudication of their situation. When
Charter
rights common to international
treaty rights, such as “no torture”,
were before it, the Supreme Court
failed to give the international
treaty rights their force. In its
early days the Charter
was intended to give effect to
international treaty rights. Thirty
years of waiting by non-citizens shows
that the Charter
has not given that effect. The
situation remains as it was described
in the early Charter
days – the court picks and chooses
from international human rights law
seemingly to suit a conclusion and
political posture reached otherwise.
The more
law-learned tell us that international
law needs to be expressly incorporated
into Canadian law by parliament and
that parliament is distinct from the
executive. They reason around how
international law might be read in
through the common law. The basic
thinking would be more convincing if
it fitted the distinctive Canadian
Constitutional reality. Canada had a
new beginning in 1982 with a
Constitution and a distinctive legal
process amongst common law countries.
And as a common law country, rarely,
only when there has been a minority
government, has there been any
difference between the wishes of the
federal prime minister’s office – the
executive - and the outcome of
parliamentary law-making.
The
Constitution can play a role in
federal law-making as the Harper
government era showed. A majority
government could make laws through the
parliament it controlled but the
Supreme Court could moderate those
laws. A special majority approval of
provincial legislatures is needed for
the wider authority a federal
government needs for Constitutional
changes. That wider authority was the
original authority for the
Constitution with its Charter.
This is the Canadian Constitutional
check and balance process at work. The
Charter
can function as the supreme law,
but there is no principled link
between the Charter
rights and the related rights in
ratified international human rights
treaties that inspired them.
Moreover, the
international human rights treaties
were not ratified by Canada like most
international treaties. It seems
almost every international human
rights treaty was entered by Canada
with the approval of every province.
This means that treaties like the
Convention against Torture and the UN
Covenant on Civil and Political Rights
have a bigger majority of support in
the distinctive Canadian
Constitutional process than the
Constitution itself. So as I see it,
Canadians have a Charter
based on international treaty
rights and those international
treaties themselves were endorsed by
substantially the same process as the
Constitution with its Charter.
The Charter was supposedly based on
the treaty civil rights, and the civil
rights treaties promise rights for
Canadians. Yet there is no formal link
requiring the courts to relate the
promised treaty rights to the Charter
rights.
It is
puzzling that international treaty
rights have not been recognized as
rights promised and given effect
through corresponding Charter
rights. Why, after every province
had agreed to a Convention against
Torture that clearly intends the
absolute prohibition of torture, would
the Supreme Court fail to recognize
the absolute prohibition of torture in
its Suresh
case when it interpreted Canadian
Charter protection from torture?
How could the Court talk of procedural
fairness and then go on to consider it
a fair procedure when the same
Minister who was trying to deport
Suresh managed the procedure to
protect him from torture?
Due process
improvements like an independent
appeal on the merits did arrive in
Canada for some groups governed by the
Immigration
and
Refugee Protection Act 2002. Yet
this appeal did not come because the
Supreme Court gave effect to the
procedural rights from the
Inter-American Human Rights system. It
has yet to reference these in its
decisions. Rather, change came to
Canadian law by published reports
about Canada, non-citizens and the
treaty rights by the Inter-American
Commission on Human Rights and others,
and by advocacy. It may have helped
that appeals were being provided in
the laws of other Western countries
with which Canada coordinates policies
to manage asylum seekers. Yet it
should be our Constitution and the
treaties all our provinces endorsed
that should ensure protection of the
promised rights.
Thirty years
of waiting for the Supreme Court to
move on the dangling rights must be
interpreted as meaning that the Court
needs direction. It calls for a formal
Constitutional amendment to tell it
what to do with respect to rights in
ratified international human rights
treaties and how to do it. The British
incorporated the European Convention
of Human Rights into UK law. That
makes less sense for Canada. We have
regional treaty rights obligations,
but our Constitution was based more on
the UN Covenant on Civil and Political
Rights. This Covenant enjoys a special
place among Western and Eastern
countries from the process that ended
the Cold War. There has been useful
academic thought on responding to the
wider question of implementing the
treaty rights in Canada. Yet the best
approach for the dangling Charter
rights could be simpler. Perhaps
a paragraph added at the beginning of
the Charter
to the effect that unless the
Canadian Charter
expressly provides otherwise,
rights from international treaties
ratified by Canada should be given
effect by means of the corresponding Charter
right. It might also help to
suggest that the Court give particular
weight to ensuring the Charter
rights for an individual whose
case has come before it when it is
carrying out its general concern of
shaping the law. Minor amendments to
the Constitution have been made before
and are in the realm of the possible.
