Canada and the Inter-American Court of Human Rights

Kelly O’ConnorBy Kelly O’Connor

On May 8th I flew to San José, Costa Rica to start my internship at the Inter-American Court of Human Rights. Despite arriving at the beginning of Costa Rica’s rainy season – which Costa Ricans call invierno (winter) – the warmth and humidity was a welcome change from Montreal’s still-lingering winter. I spent my first days here settling in: finding the nearest supermarket, exploring the San Pedro neighbourhood where I live, and making new contacts with friends-of-friends who live in the city.

The Inter-American Court of Human Rights has a permanent internship program, which runs in three sessions: September-December, January-April, and May-August. The Court allows the interns to choose their start and end dates, so the interns all have slightly different start dates. The coordinator of the internship program put all the interns for the May-August period in touch via email, and we have since been corresponding through a WhatsApp group chat (if you’ve spent any time in Latin America, you know that WhatsApp groups are the preferred method of communication… even in a professional context, to my great surprise!). Most of the approximately 25 interns had already started their internships, 5 of us starting on Monday, May 13th.

My first day at the Inter-American Court of Human Rights

On the Friday before starting my internship, my future colleagues who had already begun wrote in the WhatsApp group that they were planning to meet up for a sort of 5 à 7 at a Venezuelan restaurant in the trendy Escalante neighbourhood. Having already arrived in San José, I decided to join them. I was nervous to meet all my future colleagues for the first time (not to mention to chat with them in my third language!) but I felt immediately welcomed into the group. I haven’t met all the other interns yet, but those who I met hailed from Argentina, Colombia, Costa Rica, Mexico, and Peru.

At the event, my new colleague, Manuel from Argentina, asked me if Canada recognized the competence of the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights. To my great embarrassment, I realized I didn’t definitively know the answer, despite spending the last two years learning about the Court and immersing myself in its jurisprudence. I knew that Canada was not a member of the Court, but I was not sure of its relationship to the Commission. So, I decided to inform myself, and hopefully any future intern who might read this post!

With Manuel and some other colleagues, taking a break to taste Argentinean mate (a kind of tea)

To this end, I consulted an article called “Canada and the inter-American human rights system: Time to become a full player” by Bernard Duhaime, one of the most well-known Canadian legal scholars who focuses on human rights in the Americas. [1] It’s a great starting point for anyone who wants to know more about Canada’s place in the Inter-American Human Rights System.

I already knew, of course, that Canada has been a full member of the Organization of American States (OAS) since 1990. As a member of the OAS, Canada has an obligation to respect human rights contained in the OAS Charter and the American Declaration of the Rights and Duties of Man. I also knew that Canada has not signed or ratified the American Convention on Human Rights, which is the main international human rights instrument for the Americas and also establishes the Inter-American Court of Human Rights.

What I did not know was that when Canada became a member of the OAS, it also accepted the competence of the Inter-American Commission to “formulate recommendations to member states and to receive and process individual petitions” against states. [2] However, since Canada has not ratified the American Convention, the Commission can only consider petitions that claim violations of provisions of the American Declaration. Many provisions in these two instruments are similar.

Actions against Canada make up only 0.4% of the petitions presented before the Commission. In another, more recent article, Duhaime presents a brief overview of reports by the Commission that concern Canada:

Very few individual actions have been brought against Canada before the Commission, which has only adopted three Canadian decisions on the merits, six on admissibility, and three on inadmissibility. The IACHR has also published two thematic reports on Canada, the first concerning the Canadian Refugee Determination System (2000) and the second on Missing and Murdered Indigenous Women in British Columbia (2014). [3]

Of these, the Commission has only decided one case against Canada: Manickavasagam Suresh v Canada (2016), which concerned judicial review of immigration detention for a refugee found inadmissible to Canada on the grounds of national security, but who would risk torture upon return to his country of origin.

I brought this information back to Manuel, but he immediately asked me: Why? Why did Canada decide to join the OAS and ratify the American Declaration, but did not adhere to the American Convention? I had a feeling that the reason was political: as a student of human rights I am aware of some of the hot-button human rights issues in Canada, such as the state’s relationship to Indigenous peoples and our immigration and refugee system. I thought that maybe Canada wanted to avoid having its dirty laundry displayed on the world stage, with possible repercussions for its image as a human rights defender. I found that the answer is much more complicated than I thought.

In researching this topic I happened upon a special issue of the Revue générale de droit entitled “Canada’s Role in Protecting Human Rights in the Americas.” In this issue, the Honourable Marie Deschamps, former justice of the Supreme Court of Canada, warns of problems that Canada could face if it were to join the system in “L’approche canadienne : assurer la protection des droits de la personne de façon distinctive.” [4]

Deschamps points out that Canada has long hesitated to get involved in the Inter-American system. While the OAS Charter was adopted by in Bogotá in 1948, Canada didn’t join the OAS as an observer until 1972, and not a as a full member until 1990. The American Convention has been in effect since 1978, but Canada has still not signed, let alone ratified it. [5]

Deschamps argues that there are good reasons for Canada’s reticence, pointing out problems with the Inter-American Human Rights System and identifying potential problems of incompatibility with Canadian law. [6] Her main issues are:

  1. The IACtHR’s use of “creative” remedies to human rights violations and its procedures for monitoring compliance with its decisions
  2. Long delays between first complaint and final decision from the IACtHR

First, Deschamps points out that the IACtHR has a history of identifying “creative” remedies for human rights violations beyond pecuniary damages. For example, in the case Favela Nova Brasilia v Brazil, the Court required Brazil to undertake some unconventional remedies such as publishing a summary of the decision on the government’s Twitter and Facebook pages and creating and implementing a training program on sexual violence for police officers and health care workers. Deschamps suggests that these types of “creative” remedies are not compatible with Canada’s separation of powers, citing Canada c Khadr (2010) [7]. On a similar note, Deschamps observes that, while supervision of compliance with Court decisions is de rigueur in the Inter-American System, such actions are only undertaken by Canadian courts in very exceptional circumstances, per Doucet-Boudreau v Nova Scotia (Minister of Education) (2003), also due to the separation of powers [8].

Second, Deschamps cites long delays between the first complaint and the Court’s decision, which can stretch more than 20 years in the Inter-American System. These fall well outside the “reasonable” 18-month deadline set by the Supreme Court of Canada in R v Jordan (2016) [9]. I also found out that in 2003 there was a Senate Commission on Canada’s involvement in the Inter-American system, which cited these long delays as a worry but ultimately recommended that Canada join the system. [9]

In addition to the above, the Senate report expresses concern about Article 4(1) of the American Convention, which protects the right to life, “in general, from the moment of conception” and which appears prima facie to contradict Canadian jurisprudence on the subject of abortion as provided in R v Morgentaler (1988). [10]

Visiting San José’s Parque Metropolitano La Sabana on the weekend

Through my research for this blog post, I discovered that the question of whether Canada should adhere to the American Convention and recognize the competence of the Inter-American Court of Human Rights was much more complicated than I had thought. I was persuaded by some of the arguments presented by Justice Deschamps, and I find myself particularly concerned about Article 4(1) of the Convention. I guess my next step would be to research the arguments in favour of Canada’s adherence to the Convention and the potential impact of Article 4(1). I think I would like to dive more deeply into my internship, the jurisprudence, and arguments for and against before I make a decision on this topic.

In the meantime, I will keep learning and exploring. Until next time!

 

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[1] Bernard Duhaime, “Canada and the inter-American human rights system: Time to become a full player,” International Journal, Summer 2012.

[2] Ibid, at p 641.

[3] Bernard Duhaime, “Ten Reasons Why Canada Should Join the ACHR,” Revue générale de droit, Vol. 49 (2019), at p 189.

[4] Marie Deschamps, “L’approche canadienne : assurer la protection des droits de la personne de façon distinctive,” Revue générale de droit, Vol. 49 (2019).

[5] Ibid, at p 37.

[6] Ibid, at p 38.

[7] Ibid, at p 39.

[8] Ibid, at p 39.

[9] Senate, Report of the Standing Senate Committee on Human Rights, “Enhancing Canada’s Role in the OAS: Canadian Adherence to the American Convention on Human Rights (May 2003), online: <https://sencanada.ca/content/sen/Committee/372/huma/rep/rep04may03-e.pdf >.

[10] Ibid.

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