LaFontaine-Baldwin Lecture

FREEDOM FROM WANT

A staunch UN High Commissioner calls for enforcing human rights in Canada

LOUISE ARBOUR March 14 2005
LaFontaine-Baldwin Lecture

FREEDOM FROM WANT

A staunch UN High Commissioner calls for enforcing human rights in Canada

LOUISE ARBOUR March 14 2005

FREEDOM FROM WANT

A staunch UN High Commissioner calls for enforcing human rights in Canada

LaFontaine-Baldwin Lecture

LOUISE ARBOUR

Louise Arbour has a lifelong reputation for challenging authority in the pursuit of justice. She was fearless as prosecutor for the International Criminal Tribunal for the former Yugoslavia and Rwanda, and now regularly challenges world leaders as UN High Commissioner for Human Rights. In between those two jobs, she sat on the Supreme Court of Canada, where she had time to consider the true meaning of human rights—the subject of her lecture to the sixth annual LaFontaine-Baldwin symposium. Named after two pre-Confederation leaders who helped establish the Canadian democratic framework, the symposium is sponsored by the Dominion Institute and His Excellency John Ralston Saul. Edited excerpts from Arbour’s speech, delivered March 4 in Quebec City:

DURING THE 1990s, as a nation we were quick to celebrate our No. 1 ranking on the United Nations Development Programme’s Human Development Index. The indexreflecting indicators including life expectancy at birth, literacy and gross domestic product—gives a snapshot of well-being at an aggregate level. It is a long way, however, from reflecting the experiences of a country’s most vulnerable citizens.

Despite our international standing, it is evident that poverty and gross inequalities persist in our own backyard. Other reports, studies and indicators, from home and abroad, reveal that First Peoples, singleparent families headed by women, persons with disabilities and many other groups con-

tinue to face conditions that amount to a denial of economic, social, civil, political and cultural human rights, the birthrights of all human beings under international law.

How can such glaring disparities prevail in a country such as this, a wealthy, culturally diverse, cosmopolitan democracy? For its own part, Canada has consistently por-

trayed itself as an active promoter and defender of international human rights, and has—no doubt—displayed a strong commitment to multilateral approaches to global problems. It is a commitment which has come to be a matter of national identity.

But what about human rights at home? I want to ask, perhaps somewhat provocatively, if we have done everything within our power to give our values and our international legal commitments effect in our day-to-day life as a nation.

The story of the 1948 Universal Declaration of Human Rights, embodying the interests and entitlements necessary for a life with dignity, is in great part a Canadian one, although it is not entirely the story we might expect. Many have noted that the task of drafting the declaration fell to Canadian John Humphrey, director of the human rights division of the secretariat of the UN Commission on Human Rights. Less visible is what took place at a political level.

Lester B. Pearson was an equally noted protagonist in the story of the declaration, perhaps hardly surprising in view of the social policy developments that took place during the 1950s and 1960s under his watch, among them the introduction of the Canada Pension Plan and universal medicare. Pearson’s imprint in 1948 as a newly appointed secretary of state for external affairs, however, included an embarrassing abstention on a critical UN vote on the declaration. While, ultimately, Canada did vote in favour of the declaration, in the words of Professor William Schabas of the Irish Centre for Human Rights in Galway, the initial abstention “left a blemish that 50 years have not erased.”

CANADIANS believe that equitable access to our riches is no longer a matter of charitable disposition

The reasons for the abstention related very directly to misgivings in official circles at the inclusion of socio-economic rights. It was very clear that Prime Minister Louis

St. Laurent was under pressure from conservative elites, including members of the Canadian Bar Association. Pearson’s statement to the General Assembly on Dec. 10, 1948, was crafted accordingly, albeit stealthily, challenging the “imprecise” nature of the language used in the draft declaration and noting jurisdictional concerns. Schabas asserts quite pointedly that, “The Canadian government, and the department of foreign affairs in particular, misled both domestic and international public opinion by concealing its substantive opposition to the declaration behind procedural arguments.”

For whatever one might say about contemporary challenges, it is well worth remembering that the early to mid-20th century had its own complexities and was not a bygone era of co-operation and solidarity in Canada. Social transformation has demanded political commitment, generated by the work of Canadians, individually and together, who have worked for their ideals, who hold politicians to account and who defend principles wherever they are, from the kitchen table to the international stage. While we’ve seen some notable advances in the recognition of social and economic rights in Canada over the decades, the ambivalent echoes of Pearson’s words in the UN General Assembly still reverberate within our political and legal cultures, part of an enduring reluctance to give effect to economic, social and cultural rights.

In our more recent history, the adoption of the Canadian Charter of Rights and Freedoms in 1982 held the potential to change the relationship among executive, legislature and judiciary, opening up the possibility for an articulation of the rightsbased component of public policy decisions. Section 7, guaranteeing the right “to life, liberty and security of the person,” is particularly relevant in the context of the UN declaration’s “freedom from want.” Political scientists and legal scholars watched the courts to see what would be the impact of judicial review on public policy decisions.

The first two decades of Charter litigation testify to a certain timidity—both on the part of litigants and the courts—to tackle head-on the claims emerging from the right to be free from want. Canadian courts have championed civil and political rights and have articulated for themselves an appropriately far-reaching sphere of judicial review when the state invokes the use of repressive

criminal law powers. But consider-

ably more reticence has been expressed in relation to social, economic and cultural rights and the protection of vulnerable segments of the population on grounds other than discrimination.

Courts the world over have been playing an increasingly vital role in enforcing socioeconomic rights, bringing them from the realms of charity to the reach of justice. Allegations as to the uniformly and uniquely “costly” nature of socio-economic rights obligations seem at best strange or misinformed, or at worst, disingenuous, set against these realities. Furthermore, the legality of judicial review of all human rights is not open to question under the Canadian constitutional system. Courts are well-equipped to reflect the entrenched expectation of Canadians that equitable access to the

riches generated by our collective harvesting of this generous land is no longer a matter of charitable disposition.

The possibility for people to claim their human rights entitlements through legal processes is essential so that human rights have meaning for those most at the margins. There will always be a place for charity, but charitable responses are not an effective, principled or sustainable substitute for enforceable human rights guarantees.

The debate in Canada on these issues can be certain to continue. However, those fearing or objecting to the vision of human rights that I’ve outlined would do well to bring the true nature of their misgivings into the open, out from the shadows of straw men and calculated obfuscation. With good faith engagement on the substantive issues, I believe that there will be every prospect of a more just, inclusive and rights-respecting democracy in Canada in years to come, fifl