Tom Clark

The Globe’s editorial on June 28 used spurious reasoning to set aside the appeal by former Supreme Court justice Louse Arbour that States not deport terror suspects to States where they face torture. Her plea as the UN High Commissioner for Human Rights has become an excuse for the Globe to promote its own views that treaties, justice and fundamental international human rights can be brushed aside for State expediency. Canadians deserve better insights.

The Globe confused international rights protecting an individual from torture with the rights (or lack of them) in Canadian law and the Canadian Charter of Rights and Freedoms which the courts interpret. It has confused Louise Arbour’s role as former justice in the Supreme Court of Canada applying Canadian law and the Canadian Charter, with her role as UN High Commissioner for Human Rights advising governments on their responsibilities viz a viz international rights. There is no clear connection between international treaty rights and the Canadian Charter. Maybe there should be – but that would be another editorial. There is no right to protection from torture set out in the Canadian Charter. There is a limited protection from cruel treatment or punishment. Parliaments and courts have failed to find ways of allowing Canadians to fully enjoy the international rights promised them when Canada, with the support of the Provinces, ratified international human rights treaties like the Convention against Torture.

Instead of lamenting the lack of effect of the ratified international human rights treaties in Canada, the Globe further muddied the waters by misinterpreting the approach by Britain. If, by agreement, Britain can ensure that there will be no substantial risk of torture for a deportee, it will have satisfied its international obligations. So Britain is trying this route. The role for a court is not to say – with the Globe - that justice and rights can be set aside for political convenience. The appropriate role of a court is to protect the individual from a substantial risk of torture. The role is to advise Tony Blair whether Britain’s efforts to advance State interests by deportation, with assurances from a receiving State, satisfy the test of protecting the individual from a substantial probability of consequential torture.

The call for no deportation to substantial risk of torture is more than a request from Louise Arbour. Countries like Canada, in their more reflective moments, all agreed that the protection from torture is a fundamental absolute international right and they ratified a treaty saying so. Beyond this, even other rights like family rights should not be set aside when there is no obvious purpose. Nowhere is the case made why deporting persons accused of terrorism is a solution for terrorism. Even if there is a legitmate purpose, rights should not be impared if there is another way of achieving the legitimate purpose. Why is deporting so necessary? Is there no alternative? Should this need to deport trump the international rights impaired? For a court to examine these principles is the just treatment owed to those in Canada whom the governments wants to deport.

States enter a wide range of treaty agreements and our world depends on them being honored. I fail to see how the Globe can be so cavalier about setting aside treaties, ignoring fundamental and absolute international rights for the so poorly justified administrative act of deporting.

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Deportation, Torture, Canada and the UN June 2006 Click square for index The Globe’s editorial on June 28 used spurious reasoning to set aside the appeal by former Supreme Court justice Louse Arbour that States not deport terror suspects to States where they face torture. Her plea as the UN High Commissioner for Human Rights has become an excuse for the Globe to promote its own views that treaties, justice and fundamental international human rights can be brushed aside for State expediency. Canadians deserve better insights. The Globe confused international rights protecting an individual from torture with the rights (or lack of them) in Canadian law and the Canadian Charter of Rights and Freedoms which the courts interpret. It has confused Louise Arbour’s role as former justice in the Supreme Court of Canada applying Canadian law and the Canadian Charter, with her role as UN High Commissioner for Human Rights advising governments on their responsibilities viz a viz international rights. There is no clear connection between international treaty rights and the Canadian Charter. Maybe there should be – but that would be another editorial. There is no right to protection from torture set out in the Canadian Charter. There is a limited protection from cruel treatment or punishment. Parliaments and courts have failed to find ways of allowing Canadians to fully enjoy the international rights promised them when Canada, with the support of the Provinces, ratified international human rights treaties like the Convention against Torture. Instead of lamenting the lack of effect of the ratified international human rights treaties in Canada, the Globe further muddied the waters by misinterpreting the approach by Britain. If, by agreement, Britain can ensure that there will be no substantial risk of torture for a deportee, it will have satisfied its international obligations. So Britain is trying this route. The role for a court is not to say – with the Globe - that justice and rights can be set aside for political convenience. The appropriate role of a court is to protect the individual from a substantial risk of torture. The role is to advise Tony Blair whether Britain’s efforts to advance State interests by deportation, with assurances from a receiving State, satisfy the test of protecting the individual from a substantial probability of consequential torture. The call for no deportation to substantial risk of torture is more than a request from Louise Arbour. Countries like Canada, in their more reflective moments, all agreed that the protection from torture is a fundamental absolute international right and they ratified a treaty saying so. Beyond this, even other rights like family rights should not be set aside when there is no obvious purpose. Nowhere is the case made why deporting persons accused of terrorism is a solution for terrorism. Even if there is a legitmate purpose, rights should not be impared if there is another way of achieving the legitimate purpose. Why is deporting so necessary? Is there no alternative? Should this need to deport trump the international rights impaired? For a court to examine these principles is the just treatment owed to those in Canada whom the governments wants to deport. States enter a wide range of treaty agreements and our world depends on them being honored. I fail to see how the Globe can be so cavalier about setting aside treaties, ignoring fundamental and absolute international rights for the so poorly justified administrative act of deporting. TOP Click:
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