“That
there
is a gap between Canadian court positions
and international human rights case law
positions is beyond dispute. ... At the
end of the day, can Canadian courts be
relied upon to live up to Canada’s
obligations
to “ensure” and to “give effect” to CCPR
and other key international treaty human
rights. Are further legal measures
required of Canada?
If so, what?”
“…
for this book the
focus is on the particular human rights
treaties binding on Canada
and the corresponding international
interpretation. An obligation does not
relate to international case law about a
more or less comparable right. It relates
to the precise wording of the text of the
treaty ratified …”
“In
1992, the Canadian Council of Churches had
put its defeated court action before the
Inter-American Commission on Human
Rights and facilitated individual
complaints. The Inter-American Commission
on Human Rights held a General Hearing in
Washington
D.C. in
1996 and then undertook an On Site Visit
to Canada
in 1997. The visit included
discussions by members of the
Inter-American Commission with Canadian
officials and judges as well as with NGOs,
refugees and other non-citizens in public
hearings in Toronto,
Ottawa and
Montreal.
Commission members visited jails and
talked to individuals detained.
Thus, it is reasonable to suppose that the
Supreme Court was aware of the
international obligations after 1997 and
certainly by 1999, the time of decisions
on the next two cases to be discussed.”
“The
Supreme
Court was the only organ of the State in a
position to ensure the right to an
effective judicial remedy for Baker who
was facing deportation and separation from
her child as a consequence of acts of
authority. The Court failed its obligation
to ensure an effective judicial remedy for
her. ... The ruling in Baker means that
one rather vague principle from one
international Convention ratified ten
years before – best interest of the child
- should play a role as a factor in
administrative decision-making. This does
not warrant much praise for ensuring
international rights.”
“There
is
a disquieting political convenience in
the approach taken in Burns. It
supported Canada's
abolished death penalty, it was
obliquely critical of the US
on the death penalty, it may have
inspired improved international
jurisprudence, but it avoided giving
effect to rights to due process that
might be costly and unpopular. It left
administrative discretion free to
exclude any selected 'exceptional'
individual. This possibility
underscores the need for a Court that
will ensure individual rights are
protected from acts of authority.”
“In
both Suresh and Ahani the Supreme Court
did not apply a formal human rights
analysis. The Supreme Court failed to give
effect to the international rights to
protection from torture. The right to
effective judicial protection from acts of
authority that may violate rights was not
given effect. To ensure the international
rights, the Supreme Court would have had
to require a different test for a
reviewing court. It would have required
all the elements of natural justice to be
applied, as Justices Cory and Major
argued in their dissenting opinion in
Pushpanathan. The Council of
Churches had put that position before
the Court.”
“To
ensure international rights requires more
than a reference in one or two laws whose
other detailed provisions challenge
international human rights obligations.
Making explicit in the Charter itself that
the Charter is intended to give effect to
Canada’s
international
human rights treaty obligations is
necessary to close much of the gap with
international jurisprudence. It
would restore the original expectations of
the Charter. It would allow the Court to
begin to change patterns arising in its
past case law.”
TOP Click 
