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Canadian Journal of Revue canadienne des Human Rights droits de la personne An interdisciplinary Journal of Une revue interdisciplinaire sur Law and Policy le droit et les politiques
Editor-in-Chief Donn Short Senior Editor Corey Shefman Editors
Christine Arnold Andrew Boumford Bhanwar Dhanoa Janet Kwong Keith Lenton Georgia Ongley Jocelyn Turnbull Sam Yung French Language Editor Summer Editors Stephen Myher Keith Lenton Stephen Myher Assistant Editors Karen Diggins Katrine Dilay Kamini Dowe Erica Grant Brendan Harvey Tyrel Henderson Haley Hrymak Justin Kusyk Jessica Mahabir Peter Muto Tyler Omichinski Lalitha Ramachandran Hillson Tse Editorial Board 2010 - 2011 Lyndsey Amott Sloane Bernard Sayer Down Brandi Field Graham Honsa Michael Jones Keith Lenton Marie McLellan Landon Miller Corey Shefman Steve Toews
Advisory Board Clint Curle Canadian Museum for Human Rights Gerald Heckman Robson Hall Faculty of Law Hin-Yan Lu Max Weber Fellow, EUI Anne McGillivray Robson Hall Faculty of Law James T. Sears Independent Scholar Rebecca Wallace Perth College, UHI Publication Information © 2012 Canadian Journal of Human Rights (CJHR). All works in this publication are available open access online at: www.cjhr.ca pursuant to the Creative Commons Attribution-NonCommercial-NoDerivs 2.5 Canada License. You are free to reproduce, distribute and transmit the articles and forewords in this publication provided that you attribute the author(s) and the Canadian Journal of Human Rights and provide a link to our content. You may not use the articles or forewords in this publication for commercial purposes. You may not alter, transform or build upon the articles or forewords in this publication. Visit http://creativecommons.org/licenses/by-nc-nd/2.5/ca.
Legal Deposit / Dépôt legal 2012
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ISSN : 1923-9211 / E-ISSN (Online) : 1925-5306
Cite as (2012) 1:1 Can J Hum Rts
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2012 n Volume 1 n No. 1
FOREWORDS
1 Justice Rosalie Abella, Supreme Court of Canada
13 Dr. Lorna A. Turnbull, Dean of Law
17 Gail Asper, The Asper Foundation
21 Dr. Donn Short, Editor-in-Chief
ARTICLES 25 Enhancing the Implementation of Human Rights Treaties in Canadian Law: The Need for a National Monitoring Body Amissi M. Manirabona & François Crépeau 61 Concepts and Precepts: Canadian Tribunals, Human Rights and Falun Gong David Matas & Maria Cheung 93 Cultural Restoration in International Law: Pathways to Indigenous Self-Determination Jeff Corntassel 127 Conscientious Objection to Creating Same-Sex Unions: An International Analysis Bruce MacDougall, Elsje Bonthuys, Kenneth McK. Norrie & Marjolein van den Brink 165 ‘Forced Marriage’ in Conflict Situations: Researching and Prosecuting Old Harms and New Crimes Annie Bunting
Foreword by Rosalie Abella
his new journal is a timely and, I predict, an indispensible contribution to our appreciation of human rights and their centrality in thriving Tdemocracies. Timely because of how sophisticated our approach to human rights has increasingly become, and central because rights are at the heart of justice. Human rights law is the law that addresses issues of discrimination. It deals with grievances flowing from group identity. More particularly, it deals with the disadvantaging practices flowing from arbitrary and stereotyped attributions about a group’s identity. Human rights addresses the rights of individuals who are members of historically disadvantaged groups to have those differences recognized and reasonably accommodated, not used as arbitrary barriers to social, political or economic access. Unlike civil liberties, which is the frame for analyzing the individual’s relationship with the state, human rights is the frame for analyzing a group’s relationship with both the mainstream and the state. Not all individuals in the group may feel disadvantaged, but for those who do, human rights offers a remedy for denials of access arbitrarily caused by their group’s identity and differences, the essence of discrimination. The law of discrimination in Canada developed along two seemingly parallel tracks. One was the law developed by provincial human rights commissions in the 10 provinces. The approach from these bodies, and later from their federal counterpart, the Canadian Human Rights Commission, was expansive and innovative in protecting human rights. The second - and older - track, was the law of discrimination developed by Canadian judges. This track, with rare exceptions, tended to submerge the development of human rights under what were seen to be the overriding demands of commerce or the constitutional division of powers. Even when the courts came to what we would today consider to be a ‘just’ result, as the Supreme Court of Canada did in Noble and Wolfe v. Alley invalidating a restrictive covenant prohibiting the sale of land to persons who were Jewish or black, the Court avoided taking direct aim at the discriminatory context of the covenant. Rather than basing its conclusion on the grounds that such discriminatory practices violated public policy, as an Ontario judge had done 2 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts in the singular 1945 decision Re: Drummond Wren, the Court structured its analysis around the law of contract and land use. Until three decades ago, in fact, the human rights journey taken by the Canadian courts had almost consistently been a discouraging one, permitting a province to prevent a “Chinaman” from working in a mine; upholding a provincial law preventing Asian persons from voting; refusing to invalidate a provincial law precluding a “Chinaman” from hiring white women or girls; upholding a tavern’s right to refuse to serve a black customer; and, famously, concluding that women were ineligible to be appointed to the Senate because the word “Persons” in the relevant section of the British North America Act did not include “female persons”. This last decision, overturned by the Judicial Committee of the Privy Council, produced a directive from Lord Sankey that constitutional interpretation be untethered from an originalist construction and approached instead as “a living tree capable of growth and expansion”, an exhortation that was to inform and infuse the Supreme Court’s approach to human rights under the Canadian Charter of Rights and Freedoms 50 years later. A seismic shift in the Supreme Court’s approach to discrimination seemed to come in 1959 with Roncarelli v. Duplessis. Although the conceptual divining rod of this case is seen to be, justifiably, administrative law, it is no less significant for its human rights implications. It was the apotheosis of a number of legal challenges to Quebec’s attempts to dissolve any rights for Jehovas Witnesses, including the right to practice their religion or carry on business. These attempts were definitively cauterized by the Supreme Court’s conclusion in Roncarelli that such arbitrariness was outside the sphere of legitimate government authority. The promise of this judgment for muscular rights protection, however, appeared to atrophy somewhat during the next decade, when the Court was presented with the opportunity of developing human rights under a new 1960 Canadian Bill of Rights. This federal statute gave the Court its first opportunity to consider a statutory provision explicitly granting Canadians equality and protecting them from discrimination. The beginning was auspicious. A provision of the Indian Act making it an offence for an aboriginal person to be intoxicated off a reserve, was declared to be inoperative because its punitive reach did not extend to persons who were not aboriginal. It proved to be a short-lived trend. In subsequent cases, the anti-discrimination/equality provision was interpreted under what was known as “the similarly situated” test. It was a Diceyan, Aristotelion approach, consistent with a classic, civil libertarian approach to equality: as long as likes were treated alike, there was no equality violation. This was the Rosalie Abella n Foreword n 3
approach to equality that had been historically applied in the United States in deciding cases under the 14th Amendment. Its Canadian application, in one of the most highly publicized cases of the time, resulted in the Supreme Court upholding a provision of the Indian Act that disqualified aboriginal women from retaining their aboriginal status if they married a non-aboriginal male. There was no corresponding disqualification for aboriginal men who married non-aboriginal women. However, since all aboriginal women were treated the same, the Court found no discrimination and no violation of the equality provision. Similarly, a provision denying unemployment benefits to a pregnant woman was found not to discriminate because the basis of the legislative provision was found to be pregnancy, not sex, and all pregnant women were treated alike. By the mid-1970’s, the quasi-judicial human rights commissions across Canada were the main bodies who oxygenated the right to be free from discrimination. Most human rights Codes in Canada during the 1970’s and 1980’s had anti-discrimination provisions. The cases adjudicated under these human rights provisions eschewed the ‘sameness’ or “similarly situated” approach adopted by the Supreme Court in its Bill of Rights jurisprudence. The “similarly situated” analysis was rejected by the human rights tribunals as a circular and unhelpful analytic tool in the anti-discrimination, or human rights context. Since it was axiomatic that each disadvantaged member of a disadvantaged group tended to be similarly disadvantaged, disadvantaging distinctions based on race, gender or colour could almost always be justified, as they had been in the Bliss, Lavell, or the notorious 1896 Plessy v. Ferguson case in the United States. Instead, the Commissions defined discrimination as a violation of fairness, that is, any exclusionary distinction imposed on individuals based on stereotypical and arbitrary views about their race, religion, colour, citizenship, or sex, among others. Not every distinction was discriminatory, only those which arbitrarily disadvantaged members of these groups. An arbitrary disadvantage was one which directly or indirectly, excluded members of a group for reasons not reasonably related to the exclusion. It was an implicit acknowledgment that human rights was a different concept calling for a different approach from civil liberties. Civil liberties is the political philosophy that animated the principle of equality under the Declaration of Independence and the American Bill of Rights, whereby every individual had the same (theoretical) rights to life, liberty and the pursuit of happiness, which amounted to the right to be similarly treated by the state and similarly free from its intensiveness. “Sameness” made sense in the civil libertarian context, whereby each individual is entitled to equal, or similar, treatment in its relations with the state, regardless of race or sex or religion. 4 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts
On the other hand, as the tribunal jurisprudence reflected, treating everyone the same, can sometimes mean perpetuating discrimination, the remediation of which may require that disadvantaged persons or groups be treated differently in order to eliminate their arbitrary barriers to equality. Persons in a wheelchair, for example, will require a ramp, the absence of which uniquely denies them the ability to gain access. And this is so regardless of whether the absence of the ramp is a deliberate omission. This led to an appreciation on the part of the Court and Commissions that it is the impact, as well as the intention of behaviour or practices that is relevant, and that discrimination can be systemic. Developed by the U.S. Supreme Court in the 1971 Griggs v. Duke Power case under Title VII of the 1964 Civil Rights Act, systemic discrimination was defined as the adverse impact of practices, regardless of motive. Systemic discrimination called for systemic remedies. Everything changed with the Charter. All through the 1980’s, the Court had signaled its analytic transformation in several significant human rights cases, overtaking the more cautious approach of Canadian appellate courts and favouring instead the more nuanced and embracing sensibilities formerly expounded by human rights commissions. In cases like Big M Drug Mart, Brooks v. Canada Safeway Ltd., Alberta Dairy Pool, Janzen, Action Travail, Simpson- Sears v. O’Malley, the Supreme Court rigorously and vigorously assumed a leadership role for the courts in preventing and remedying discrimination. Abandoning the Diceyan formalism and civil libertarian ‘sameness’ model that had animated the Supreme Court’s equality assessments under the Bill of Rights, the Court chose instead to interpret equality as an anti-discrimination, human rights tool. The Canadian approach to human rights and discrimination developed largely by human rights commissions was based on accommodating differences, it focused on integration rather than on the American melting pot model of assimilation, which absorbed rather than encouraged different identities. It also became the philosophical crucible for interpreting s.15 of the Charter of Rights and Freedoms. In its first equality decision, Andrews v. Law Society of British Columbia the Court declared that the right to equality, guaranteed in s. 15, was the equal right of all individuals to be free from discrimination based not only on the grounds set out in the section but also on those analogously related. To be entitled to the constitutional guarantee of equality was to be entitled to protection from discrimination based on group identity. It was the triumph of the human rights model, leaving intact the civil libertarian approach for other sections of the Charter dealing with legal and democratic rights. The Charter itself is a sophisticated hybrid of rights protections and remedies: those guaranteeing human rights (equality in s. 15, Rosalie Abella n Foreword n 5
multiculturalism in s. 27; sex in s. 28) and those guaranteeing civil liberties ones (such as the right to counsel in s.10(b); right to vote in s.3; the right to be free from unreasonable search and seizure in s. 8; and the right to life, liberty and security of the person in s.7). It is in its appreciation that those rights protecting individuals from discrimination require a fundamentally different tool-box, that the Supreme Court has made its most historic human rights contribution. Asserting rights for unmarried couples, same-sex couples, aboriginal people, persons with disabilities, those seeking religious freedoms, and women, the Court interwove equality rights with a vibrant anti-discrimination texture. It is the same texture the Court applied in interpreting linguistic and expressive rights, giving judicial reification to Canada’s multicultural and bilingual character. The merging of human rights law with equality interpretation has helped ensure a Canadian legal culture that adapts to the evolutionary dynamic of human rights and its correspondingly complex remedial requirements. By synchronizing the approaches taken pursuant to human rights codes designed to combat discrimination, with the analogous constitutional protections found especially in the equality provision, the Supreme Court has acknowledged that discrimination is a discrete legal phenomenon calling for a unique legal response. It has also, in the process, helped ensure that while eliminating discrimination may not be an easily attainable goal, reducing discrimination by reducing inequality is an ongoing and achievable legal duty. The Faculty of Law at the University of Manitoba, and the Canadian Museum for Human Rights deserve our thanks and support for this undertaking and for the intellectual assistance it will make available to all who care about justice.
Justice Rosalie Silberman Abella 6 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts Avant-propos de Rosalie Abella
a publication de cette nouvelle revue arrive à point nommé et je suis persuadée qu’elle apportera une contribution indispensable à notre Lcompréhension de la question des droits de la personne et de leur importance primordiale dans les démocraties florissantes. Elle est à la fois opportune en raison du fait que notre approche à l’égard des droits de la personne est devenue de plus en plus sophistiquée, et incontournable parce que ces droits sont au cœur même de la justice. Les droits de la personne sont un domaine de la loi qui traite des questions liées à la discrimination et qui se penche sur les revendications relatives à l’identité de groupe. En particulier, il traite des pratiques désavantageuses découlant de caractéristiques arbitraires et stéréotypées attribuées à un groupe. Les droits de la personne touchent aux droits d’individus faisant partie de groupes historiquement désavantagés qui cherchent à faire en sorte que leurs différences soient reconnues et fassent l’objet d’accommodements raisonnables, et qu’elles ne deviennent pas des obstacles arbitraires à l’accès social, politique ou économique. Contrairement aux libertés civiles, qui constituent le cadre d’analyse de la relation de l’individu avec l’État, les droits de la personne encadrent, eux, la façon d’analyser la relation d’un groupe avec la société dominante ainsi qu’avec l’État. Ce ne sont pas tous les membres d’un groupe qui peuvent se sentir désavantagés, mais pour ceux qui le vivent ainsi, les droits de la personne offrent une réparation au refus arbitraire du droit à l’accès fondé sur l’identité et les caractéristiques particulières du groupe, l’essence même de la discrimination. Le droit relatif à l’antidiscrimination au Canada a évolué selon deux voies en apparence parallèles. L’une d’elles est le droit élaboré par les commissions provinciales des droits de la personne dans les dix provinces. L’approche adoptée par ces entités, et plus tard par leur contrepartie fédérale, la Commission canadienne des droits de la personne, était étendue et innovatrice à l’égard de la protection des droits de la personne. L’autre voie, la plus ancienne, était le droit relatif à l’antidiscrimination développé par les juges canadiens. À de rares exceptions, cette approche avait tendance à englober le développement des droits de la personne dans ce qui était perçu comme les impératifs des affaires ou de la division constitutionnelle 8 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts des pouvoirs. Même lorsque les tribunaux arrivaient à un résultat considéré comme étant « juste » aujourd’hui, comme la décision de la Cour suprême dans Noble et Wolfe c. Alley qui invalidait une clause restrictive empêchant la vente de biens-fonds aux personnes juives ou noires, la Cour évitait de s’attaquer directement au contexte discriminatoire de la clause en question. Au lieu de baser sa conclusion sur le fait que des pratiques discriminatoires du genre allaient à l’encontre de la politique publique, comme un juge de l’Ontario l’avait fait dans la décision singulière qu’il avait rendue dans l’arrêt Drummond Wren en 1945, la Cour fonda son analyse sur le droit des contrats et de l’utilisation des terres. Jusqu’à il y a trois décennies, la démarche adoptée en matière des droits de la personne par les tribunaux au Canada était presque constamment décourageante, puisqu’elle permettait à une province d’empêcher un «Chinois » de travailler dans une mine; qu’elle confirmait une loi provinciale empêchant les personnes asiatiques de voter; qu’elle refusait d’invalider une loi provinciale qui empêchait un « Chinois » d’embaucher des femmes ou des filles blanches; qu’elle confirmait le droit des propriétaires de tavernes de refuser de servir un client noir; et, de façon désormais célèbre, qu’elle concluait que les femmes n’étaient pas admissibles à une nomination au Sénat parce qu’elles n’étaient pas des « personnes » au sens de l’article pertinent de l’Acte de l’Amérique du Nord britannique. Cette dernière décision, renversée par le Comité judiciaire du Conseil privé, est à la source d’une directive de Lord Sankey établissant que l’interprétation constitutionnelle ne devrait plus suivre une approche fondée sur « l’originalisme », mais qu’elle devrait plutôt être vue comme « un arbre vivant capable de grandir et de s’épanouir », une exhortation qui, 50 ans plus tard, allait guider et inspirer l’approche de la Cour suprême en matière de droits de la personne dans le cadre de la Charte canadienne des droits et libertés. Un changement radical de l’approche de la Cour suprême à l’égard de la discrimination a semblé se produire en 1959 dans l’affaire Roncarelli c. Duplessis. Bien qu’elle fasse partie de façon conceptuelle du droit administratif, cette cause n’en est pas moins significative par ses implications en matière de droits de la personne. Elle représente le point culminant d’un certain nombre de causes dirigées contre les tentatives du gouvernement du Québec de porter atteinte aux droits des Témoins de Jéhovah, y compris pratiquer leur religion ou faire des affaires. Ces tentatives ont été réprimées par l’arrêt de la Cour suprême qui a statué qu’un tel arbitraire se situait à l’extérieur de la sphère d’autorité légitime du gouvernement. La protection musclée des droits de la personne que laissait présager ce jugement a pourtant semblé s’atrophier au cours de la décennie suivante, lorsque la Cour s’est vu offrir l’occasion de développer les droits de la Rosalie Abella n Foreword n 9
personne dans le cadre de la Déclaration canadienne des droits adoptée en 1960. Cette loi fédérale a fourni à la Cour sa première occasion de tenir compte d’une disposition législative reconnaissant de façon explicite l’égalité de tous les Canadiens et les protégeant contre la discrimination. Les débuts semblaient prometteurs. Une disposition de la Loi sur les Indiens faisant une infraction du fait pour une personne autochtone d’être en état d’ébriété à l’extérieur d’une réserve, fut déclarée inopérante parce que son effet punitif ne s’étendait pas aux non-Autochtones. Cette tendance fut de courte durée. Dans des causes subséquentes, les dispositions antidiscriminatoires ou relatives à l’égalité furent interprétées selon ce qui était connu comme étant le critère de la « situation analogue ». C’était une approche diceyenne, aristotélicienne, cohérente avec la façon dont une société fondée sur les libertés civiles concevrait l’égalité : tant que des personnes se trouvant dans une situation semblable sont traitées de façon semblable, il n’y a pas d’atteinte à l’égalité. C’était l’approche de l’égalité qui avait été appliquée historiquement aux États-Unis pour rendre des décisions en vertu du 14e Amendement. L’application de ce critère au Canada, dans l’une des causes les plus médiatisées de l’époque, a donné comme résultat que la Cour suprême a maintenu la validité d’une disposition de la Loi sur les Indiens qui dépouillait les femmes autochtones de leur statut autochtone lorsqu’elles épousaient un non-Autochtone, ce qui ne s’appliquait pas aux hommes qui épousaient une femme non autochtone. Toutefois, puisque toutes les femmes autochtones étaient traitées de la même façon, la Cour a conclu qu’il n’y avait ni discrimination ni infraction aux dispositions relatives à l’égalité. De façon semblable, une disposition visant à refuser des prestations d’assurance-emploi à une femme enceinte fut déclarée non discriminatoire puisque la raison d’être de la disposition législative était la grossesse, et non le sexe, et que toutes les femmes enceintes étaient traitées de la même façon. Vers le milieu des années 1970, c’étaient les entités quasi-judiciaires que sont les commissions des droits de la personne à travers le Canada qui vitalisaient le droit à la non-discrimination. La plupart des codes des droits de la personne durant les années 1970 et 1980 contenaient des dispositions antidiscriminatoires. Les affaires jugées selon ces dispositions évitaient le critère d’« identité de situation » ou de « situation analogue » adopté par la Cour suprême dans sa jurisprudence fondée sur la Déclaration canadienne des droits. Ce critère fut rejeté par les tribunaux des droits de la personne comme un outil analytique circulaire et inutile dans le contexte de l’antidiscrimination ou des droits de la personne. Puisqu’il était évident que chaque membre d’un groupe désavantagé avait tendance à être désavantagé de façon semblable, les distinctions désavantageuses fondées sur la race, le sexe ou la couleur 10 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts pouvaient presque toujours être justifiées, comme elles l’avaient été dans les affaires Bliss et Lavell, ou dans la célèbre cause de 1896, Plessy v. Ferguson, aux États-Unis. Au lieu de cela, les commissions ont défini la discrimination comme une violation de l’équité, c’est-à-dire toute distinction ayant un effet d’exclusion imposée à des individus et fondée sur des attributs stéréotypés ou arbitraires notamment quant à leur race, leur religion, leur couleur, leur citoyenneté ou leur sexe. Toutes les distinctions n’étaient discriminatoires; seules l’étaient celles qui désavantageaient de façon arbitraire les membres de ces groupes. Un désavantage arbitraire excluait, de façon directe ou indirecte, des membres d’un groupe pour des motifs qui n’étaient pas raisonnablement reliés à l’exclusion. On reconnaissait ainsi de façon implicite que les droits de la personne étaient un concept différent qui nécessitait une approche différente de celle des libertés civiles. Les libertés civiles étaient au cœur de la philosophie politique qui animait le principe d’égalité dans la Déclaration d’indépendance et la Déclaration des droits des États-Unis, selon lesquelles chaque individu avait (théoriquement) les mêmes droits à la vie, à la liberté et à la poursuite du bonheur, ce qui équivalait au droit d’être traité de façon semblable par l’État et d’être également libre de son intensité. La « similitude » avait un sens dans un contexte de libertés civiles, où chaque individu a droit à un traitement égal ou semblable dans ses rapports avec l’État, peu importe sa race, son sexe ou sa religion. Par ailleurs, comme la jurisprudence des commissions le démontre, traiter chaque personne de la même façon peut parfois perpétuer la discrimination, et sa réparation peut vouloir dire de traiter des personnes ou des groupes désavantagés de façon différente pour éliminer les obstacles arbitraires à l’égalité. Par exemple, les personnes en fauteuil roulant ont besoin d’une rampe d’accès, dont l’absence les empêche d’avoir accès à un lieu, et ce, que cette absence soit délibérée ou non. Cela mena la Cour et les commissions des droits de la personne à comprendre que c’est l’effet, ainsi que l’intention d’un comportement ou d’une pratique dont il faut tenir compte et que la discrimination peut être systémique. Élaborée par la Cour suprême des États-Unis en 1971 dans Griggs v. Duke Power, conformément au Titre VII de l’Acte des droits civils de 1964, la notion de discrimination systémique fut définie comme étant l’effet adverse de pratiques, sans égard au motif. La discrimination systémique nécessite des solutions systémiques. Tout a changé avec l’adoption de la Charte canadienne des droits et libertés. Pendant les années 1980, la Cour signale la transformation de son cadre d’analyse dans plusieurs affaires importantes liées aux droits de la personne Rosalie Abella n Foreword n 11 en délaissant l’approche plus prudente des cours d’appel canadiennes et en favorisant plutôt les sensibilités plus nuancées et plus englobantes dont avaient fait preuve les commissions jusqu’alors. Dans des causes telles que Big M Drug Mart, Brooks c. Canada Safeway Ltd., Alberta Dairy Pool, Janzen, Action travail, Simpson-Sears c. O’Malley, la Cour suprême assuma de façon rigoureuse et vigoureuse un rôle de leadership pour les tribunaux en matière de prévention et de réparation de la discrimination. Abandonnant le formalisme diceyen et le modèle de « similitude » propre à l’approche des libertés civiles qui avaient animé ses évaluations en matière d’égalité en vertu de la Déclaration canadienne des droits, la Cour suprême choisit plutôt d’interpréter l’égalité comme un outil d’antidiscrimination et de droits de la personne. L’approche canadienne en matière de droits de la personne et de discrimination développée largement en grande partie par les commissions des droits de la personne se fondait sur l’accommodement des différences, mettant l’accent sur l’intégration plutôt que sur le modèle américain du melting pot assimilateur qui aplanissait les identités différentes au lieu d’en encourager l’expression. Elle est aussi devenue la philosophie d’interprétation de l’article 15 de la Charte des droits et libertés. Dans sa première décision portant sur le droit à l’égalité, Andrews c. Law Society of British Columbia, la Cour statua que le droit à l’égalité garanti par l’article 15 était le droit égal de chaque individu de ne pas subir de discrimination fondée non seulement sur les motifs énumérés dans l’article, mais aussi sur ceux qui leur sont analogues. Avoir accès à cette garantie constitutionnelle d’égalité voulait dire avoir accès à une protection contre la discrimination fondée sur l’identité de groupe. C’était le triomphe du modèle des droits de la personne, qui laissait intacte l’approche fondée sur les libertés civiles pour d’autres articles de la Charte traitant des droits démocratiques et des garanties juridiques. La Charte elle-même est un amalgame complexe de protections et de recours : ceux qui garantissent les droits de la personne (égalité à l’art. 15, multiculturalisme à l’art. 27; sexes à l’art. 28); et celles garantissant les libertés civiles (comme le droit d’avoir recours à un avocat à l’art. 10(b); le droit de vote à l’art. 3; la protection contre les fouilles, les perquisitions ou les saisies abusives à l’art. 8; et le droit à la vie, à la liberté et à la sécurité à l’art. 7). C’est en reconnaissant que les droits protégeant les individus contre la discrimination nécessitent des outils fondamentalement différents que la Cour suprême a fait sa plus importante contribution aux droits de la personne de toute l’histoire. En affirmant les droits des couples non mariés, des couples du même sexe, des personnes autochtones, des personnes handicapées, de celles qui revendiquent des libertés religieuses et des femmes, la Cour a tissé étroitement les droits à l’égalité sur une solide trame d’antidiscrimination. C’est de cet agencement dont la Cour s’est servie pour interpréter les droits linguistiques et le droit à 12 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts la liberté d’expression, donnant une réification judiciaire au caractère bilingue et multiculturel du Canada. L’amalgame des droits de la personne et de l’interprétation en matière d’égalité a donné lieu à une culture juridique canadienne qui s’adapte à l’évolution dynamique des droits de la personne et à ses solutions complexes correspondantes. En synchronisant les approches découlant de l’application des codes des droits de la personne et visant à combattre la discrimination avec les dispositions constitutionnelles analogues, surtout dans les dispositions relatives à l’égalité, la Cour suprême a reconnu que la discrimination est un phénomène juridique unique qui nécessite une réponse juridique originale. Ce faisant, elle a aussi contribué à faire en sorte que, même si l’élimination de la discrimination n’est pas un objectif facile à atteindre, réduire la discrimination en réduisant l’inégalité constitue une responsabilité juridique continue qu’il est possible d’atteindre. La Faculté de droit de l’Université du Manitoba et le Musée canadien des droits de la personne méritent nos remerciements et notre soutien pour cet engagement et pour le soutien intellectuel qu’ils apporteront à tous ceux à qui importe la justice.
Rosalie Silberman Abella Juge de la Cour suprême du Canada Foreword by Lorna A. Turnbull
t is thrilling to be writing this foreword to the new Canadian Journal of Human Rights. It is fitting that such an innovative journal, with a clear, Iinterdisciplinary and inclusive focus on human rights should find its genesis in this place. Here on the prairie, we have come to appreciate that where we are shapes who we are and influences where we are going. In saying this, I think particularly of a massive canvas by painter Paul McLennan that hangs in our main stairway, entitled, “Where we come from, who we are, where we are going”. We are located near the centre of this continent at a place where indigenous peoples have been meeting for thousands of years. We are located on Treaty One territory. The people of this place have a history of challenging and resisting domination and of claiming justice for those who have been oppressed on the basis of their group identity. Indeed, an important benefactor of the University of Manitoba was Alexander Kennedy Isbister, a man of Cree and Scottish parents, who challenged the impact of the Hudson’s Bay Company on local communities. In 1883, he donated close to $100,000 to the University of Manitoba to provide scholarships to top students regardless of “race, creed or sex”. Isbister scholarships are awarded to this day. The Faculty of Law at the University of Manitoba has a unique history as a law school that took root as a joint endeavour of the profession and the academy. Beginning in 1885, the University offered a three year program of self-study with annual exams to be completed by future lawyers as they worked through a seven year apprenticeship. In 1914, the Law Society and the University of Manitoba joined forces to offer an academic and apprentice course of study leading to qualification as a lawyer in a program that legal historian Wes Pue has described as being “far ahead of its time”. From this foundation, we have become a place where many colleagues have a longstanding practice of engagement in both advocacy and scholarship that touches on human rights topics. Three quarters of our faculty members teach, write and/or serve in these areas. Many of our students are engaged in community service with a social justice foundation. Many of our Alumni have made important contributions to the development of human rights in this province, in this country and beyond. The late Brian Dickson sat as the Chief 14 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts
Justice of the Supreme Court of Canada as it began charting the historical journey of giving life to human rights in Canada through the various human rights codes and the new Canadian Charter of Rights and Freedoms. It was a clear path for us to follow in extending our commitment to dream of and bring to life a journal that explores and challenges our thinking about human rights and about justice. This journal has taken many months of hard work and devotion on the part of many, including Dr. Donn Short, Editor- in-Chief, and Corey Shefman, Senior Editor, authors, faculty members and students. The burgeoning relationship with the Canadian Museum for Human Rights has also been an exciting part of this journey and we are grateful and excited by it. The Canadian Journal of Human Rights represents an important part of who we are, of where we are going and of the hopes we hold for our world.
Dr. Lorna A. Turnbull Dean of Law Robson Hall Faculty of Law University of Manitoba Winnipeg, Manitoba Avant-propos de Lorna A. Turnbull
’est avec enthousiasme et fierté que j’écris cet avant-propos pour la nouvelle Revue canadienne des droits de la personne. Il me semble tout Cindiqué que naisse ici une revue si innovatrice, qui portera un regard clair, interdisciplinaire et inclusif sur les droits de la personne. Dans les Prairies, nous réalisons désormais qu’où nous sommes peut déterminer qui nous sommes et influencer où nous allons, comme le témoigne le tableau immense de Paul McLennan, exposé dans notre escalier principal, et intitulé, « Where we come from, who we are, where we are going». Nous vivons au centre de ce continent, où des peuples autochtones se rencontrent depuis des milliers d’années. Nous habitons le territoire du Traité no 1. Les gens d’ici ont, à travers les siècles, défié et résisté à la domination et réclamé la justice pour ceux qui étaient opprimés à cause de leur identité collective. En effet, un des bienfaiteurs de l’Université du Manitoba était Alexander Kennedy Isbister, un homme de parents Cris et Écossais, qui a essayé de contrecarrer l’impact qu’avait la Compagnie de la Baie d’Hudson sur les communautés locales. En 1883, il a fait don de près de 100 000$ à l’Université du Manitoba pour procurer des bourses aux meilleurs élèves, quels que soient leur « race, foi, ou sexe ». Les bourses Isbister sont décernées encore aujourd’hui. La Faculté de droit de l’Université du Manitoba a une histoire unique puisque dès ses débuts, elle fut le fruit d’un projet conjoint entre la profession et l’Université. En 1885, l’Université offrait un programme de trois ans de formation autodidacte que devaient compléter les futurs avocats en même temps que leur apprentissage, qui s’étalait alors sur une période de sept ans. En 1914, la Law Society et l’Université du Manitoba se sont joint pour offrir un programme académique et d’apprentissage menant à la qualification d’avocat que l’historien du droit Wes Pue a décrit comme étant bien en avance sur son temps. À partir de ces débuts, nous sommes devenus une communauté de chercheurs dont plusieurs s’engagent depuis longtemps dans l’étude et la défense des droits de la personne. En effet, près des trois quarts de nos professeurs écrivent et/ou travaillent dans ce domaine. Plusieurs de nos étudiants actuels s’engagent dans des services communautaires axés sur la 16 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts justice sociale. De plus, bon nombre de nos anciens élèves ont contribué de façon importante au développement des droits de la personne dans notre province, notre pays et plus loin encore. Le regretté Brian Dickson fut juge en chef de la Cour suprême du Canada lorsque celle-ci a entrepris d’insuffler la vie aux droits de la personne par son interprétation large et libérale des codes des droits de la personne et de la nouvelle Charte canadienne des droits et libertés. C’est dans ce cheminement que s’inscrit notre engagement aux droits de la personne et à la justice; la création de cette revue stimulera notre réflexion sur le sens de ces concepts et nous aidera à mettre nos idées à l’épreuve. Cette revue a demandé bien des mois de travail et de dévouement de la part de plusieurs gens, y compris Dr. Donn Short, Rédacteur en chef, et Corey Shefman, Rédacteur senior, les auteurs, et les professeurs et étudiants de notre faculté. Notre nouvelle collaboration avec le Musée canadien des droits de la personne a aussi été une partie importante de ce parcours et nous en sommes reconnaissants. La Revue canadienne des droits de la personne représente une partie importante de qui nous sommes, d’où nous allons et des espoirs que nous avons pour notre monde.
Dr. Lorna A. Turnbull Doyenne Faculté de droit Université du Manitoba Winnipeg, Manitoba Foreword by Gail Asper
t is with great pleasure that I salute Robson Hall Faculty of Law in the University of Manitoba for establishing the Canadian Journal for Human IRights. Manitoba has long been known for its original, innovative thinking so it is no surprise to me at all that the law school is launching this Journal, thereby filling a significant void in the area of legal issues and human rights. When my father, Israel Asper, O.C., O.M., LL.D., decided to create the Canadian Museum for Human Rights, he always envisioned that the Museum would be a catalyst for dozens of other human rights related initiatives. I know he would be absolutely delighted that the law school at his alma mater, the University of Manitoba, has taken the lead, showing they truly understand the importance of promoting understanding and respect and recognizing human rights as the foundation for human equality, dignity and freedom. Just as the scholars at the University of Manitoba have been surprised to learn that no journal of human rights exist in Canada, so too was my father amazed that Canada’s iconic human rights events and legislation were nowhere on display in the nation’s capital. It was for this reason that he decided that an institution needed to be created and that it should be based in Winnipeg. Winnipeg has its own special human rights history. Manitoba was the first province to award women the vote, we were trailblazers in labour rights, beginning with the 1919 General Strike and Manitoba was the birthplace of Louis Riel who fought tirelessly for Métis rights. Winnipeg truly is an exquisite location not only for the Canadian Museum for Human Rights but for a journal in human rights as well. The goal of the Museum and the reason why it is the Museum for Human Rights is to inspire action and personal responsibility. Both the Journal and the Museum will be invaluable for the development of a learned, relevant human rights discourse in Canada and on the world stage. And, we could not be more delighted that it is starting right here in Winnipeg. We applaud the law school for its entrepreneurial attitude in recognizing the need for a human rights journal and taking the lead in establishing one. We know that the scholars and researchers at the Canadian Museum for Human Rights will be enriched and strengthened by the learned research that will be 18 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts produced through the Journal and both the University of Manitoba and the Canadian Museum for Human Rights will be immeasurably strengthened by each other’s presence.
Gail Asper, O.C., O.M., LL.D. President, The Asper Foundation Avant-propos de Gail Asper
l me fait grand plaisir de féliciter la Faculté de droit de l’Université du Manitoba, Robson Hall, d’avoir établi la Revue canadienne des droits de la Ipersonne. Le Manitoba a depuis longtemps été reconnu pour sa façon de penser originale et innovatrice et il n’est donc pas étonnant que la faculté de droit lance cette revue qui comblera un vide dans le domaine des droits de la personne. Lorsque mon père, Israel Asper, O.C., O.M., LL.D a décidé de créer le Musée canadien des droits de la personne, il a toujours imaginé que le Musée serait un catalyseur d’une multitude d’initiatives reliées au domaine des droits de la personne. Je sais qu’il serait absolument ravi que la faculté de droit de l’université où il a fait ses études, l’Université du Manitoba, a adopté un rôle de premier plan, démontrant ainsi l’importance de promouvoir la compréhension et le respect ainsi que de reconnaître les droits de la personne comme le fondement de l’égalité, la dignité et la liberté. Les chercheurs de l’Université du Manitoba étaient étonnés d’apprendre qu’aucune revue dédiée aux droits de la personne n’existait au Canada. Mon père, lui aussi, avait été étonné que les grands moments de l’histoire canadienne des droits de la personne, y compris les principaux actes législatifs, n’étaient pas exposés dans la c api/tale nationale. C’est pour cette raison qu’il a décidé qu’une institution devait être créée et qu’elle devait être basée à Winnipeg. L’histoire de Winnipeg est intimement liée aux droits de la personne. Le Manitoba fut la première province à reconnaître aux femmes le droit de vote. Nous fûmes des pionniers dans le domaine des droits du travail en commençant avec la grève générale de 1919. Le Manitoba vit naître Louis Riel, qui a lutté inlassablement pour les droits des Métis. Winnipeg est donc l’emplacement idéal pour le Musée canadien des droits de la personne et pour une revue canadienne des droits de la personne. La mission du Musée, reflétée dans son appellation, est d’inspirer l’action et la responsabilité sociale. La Revue et le Musée seront très importants pour le développement d’une discussion des droits de la personne éclairée et pertinente au Canada et dans le monde. Nous sommes ravis que tout cela commence ici, à Winnipeg.
20 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts
Nous applaudissons la Faculté de droit pour son entrepreneuriat en reconnaissant la nécessité d’une revue des droits de la personne et en prenant l’initiative de l’établir. Nous savons que les chercheurs au Musée canadien des droits de la personne bénéficieront de la recherche importante qui sera publiée dans la Revue et que l’Université du Manitoba et le Musée tireront force et vigueur de leur coexistence.
Gail Asper, O.C., O.M., LL.D. Présidente de la Fondation Asper Foreword by Donn Short
he artwork that appears on our cover – and on our web site – was designed by Johnson Fung and The Message Studios in Montréal. I asked Tthem to incorporate a human hand in their design and what they have come up with is an image that beautifully captures the narrative of human rights discourse and a direction for the future of this journal: a human hand, non-gendered and non-racialized, raised in supplication and yet empowered by the words of the United Nations Declaration of Human Rights. The title page and logo of this journal was created by Winnipeg designer Carl Shura. The typeface is a modified version of Franklin Gothic, which dates from the early days of the twentieth century. The style recalls the hopes for the modern age at the century’s turn as history left behind the romantic and classicist periods and moved forward into the twentieth century’s modern period of massive social and political changes. Franklin Gothic is part of a set of letterforms that resembles actual handwriting which links it with our cover art. These so-called ‘whiteletter’ forms were also known as ‘humanist’ because they introduced a letterset with the marks of humanity rather than of industry or ornament. If you consider Mr. Shura’s design, one discerns that “human rights” emerges out of the dark line of history; and yet, that mark is rendered on a blank page, underscoring the reality of further work to be done. The white space of these possibilities articulates that meaning in a way that also issues a call to undertake that work. That call inspires this Journal. My hope is that the Canadian Journal of Human Rights will grow and accommodate a variety of forms of expression by those who wish to fill that blank space. From the start, our publication is an open-access journal available in hard copies and accessible, without charge, online. My hope is that our online presence will grow to include the voices of scholars from varied disciplines, activists, artists, members of the public and will include artwork, photography, theatre, visual arts and personal narrative in the rendering of both traditional and untraditional ways of engaging with human rights. And so, for this reason, I reached out to the Canadian Museum for Human Rights to ask them to join 22 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts us in creating a democratized space for engaging with human rights in varied forms. I am very happy to have them with us. In this endeavour, I want to thank the students of the board of directors for the 2010-11 school year who agreed that the creation of this journal was a worthy enterprise. Thanks go to Faculty Council, Robson Hall Faculty of Law, for agreeing with us. I want to thank the students of the 2011-12 school year for the terrific experience this past year of producing what we refer to as “1.1”. And our thanks to Harvey Secter, Lorna Turnbull, Debra Parkes, Karen Busby, Jennifer Schulz, Gerald Heckman, Anne McGillivray and Carmen Roberge for their valuable support and assistance. My most profound thanks go to Corey Shefman and Keith Lenton for being on the bridge with me these past three years: Earth at last!
Dr. Donn Short Editor-in-Chief Avant-propos de Donn Short
’œuvre d’art qui apparaît sur la page couverture de la revue – ainsi que sur notre site web – a été conçue à Montréal par Johnson Fun et The LMessage Studios. Je leur ai demandé d’incorporer une main humaine dans leur design et ce qu’ils ont créé est une image qui capture de façon magnifique les éléments du discours entourant les droits de la personne ainsi qu’une direction future pour cette revue. Une main, dénuée d’association à un sexe ou à une race définis, suppliante mais autonomisée par le texte de la Déclaration universelle des droits de l’homme. La page titre et le logo de cette revue ont été créés par le dessinateur winnipegois, Carl Shura. Le style des lettres est une version modifiée de Franklin Gothic, une écriture datant du début du vingtième siècle. Ce style rappelle les espoirs qu’avaient les gens pour l’ère moderne au tournant du siècle. Ce siècle laissait derrière lui les périodes romantique et classique et avançait vers les temps modernes du vingtième siècle, avec ses changements sociaux et politiques importants. Franklin Gothic fait partie d’un groupe de types d’écritures qui ressemblent à l’écriture cursive, au lieu du script, la reliant donc à l’art sur notre couverture. Dites ‘humanistes’, ces genres d’écritures accentuent l’élément humain plutôt que les éléments industriels ou ornementaux de l’écriture. Pourtant, cette page couverture est surtout un grand espace blanc et vide, soulignant l’ampleur du travail qu’il reste à faire dans le domaine des droits de la personne. Cette espace blanc suggère non seulement qu’il y a davantage de travail à faire mais est aussi un appel à l’action - un appel qui inspire cette revue. Mon espoir est que la Revue canadienne des droits de la personne grandira et pourra accommoder les diverses possibilités suggérées par ce canevas blanc – en termes des différents contributeurs et commentateurs auxquels nous prêterons cet espace, qu’ils écrivent en anglais, en français ou dans d’autres langues. Notre objectif est aussi d’accommoder des formats variés d’expression académique, de discussion et d’activisme qui peuvent être articulés par ceux qui voudraient contribuer à la revue. La Revue canadienne des droits de la personne se veut une publication en libre accès disponible en copies papier et accessible gratuitement sur le site web. J’espère que notre présence en ligne s’étendra afin d’inclure les voix des chercheurs de toutes disciplines, 24 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts d’activistes, d’artistes, de membres du public et comprendra des œuvres d’art, de la photographie, du théâtre, des arts visuels et des histoires personnelles au sujet des modes traditionnels et moins traditionnels d’engagement envers les droits de la personne. C’est donc pour cette raison que j’ai invité le Musée canadien des droits de la personne de se joindre à nous dans la création d’un espace démocratisé réservé à la discussion, dans son sens large, des droits de la personne. Je suis très heureux qu’ils participent avec nous à ce projet. Dans ce grand projet, j’aimerais remercier les étudiants du Conseil d’administration pour l’année scolaire 2010-2011 qui ont reconnu la valeur du projet visant la création de cette revue. Merci aussi au Conseil de la Faculté de droit de Robson Hall d’avoir partagé notre point de vue. J’aimerais remercier les étudiants de l’année scolaire 2011-2012 : notre collaboration à produire ce que nous appelons affectueusement « 1.1 » fut une expérience enrichissante. Nous remercions aussi Harvey Secter, Lorna Turnbull, Debra Parkes, Karen Busby, Jennifer Schulz, Gerald Heckman, Anne McGillivray et Carmen Roberge pour leur appui considérable. Mes remerciements les plus chers vont à Corey Shefman et Keith Lenton pour m’avoir accompagné, depuis trois ans déjà, sur le pont de ce vaisseau spatial: enfin, la terre!
Dr. Donn Short Rédacteur en chef Enhancing the Implementation of Human Rights Treaties in Canadian Law: The Need for a National Monitoring Body1
Amissi M. Manirabona2 & François Crépeau3
In Canada, many international treaties have been ratified by the government. Nevertheless, similar to other countries with Westminster-style democratic systems, those treaties have no direct effect on domestic law. Accordingly, their explicit incorporation into national law is an essential requirement. This prerequisite may lead to many unrecognized human rights treaties in Canada. As a result, at a domestic level, private actors cannot base any claim on the grounds of human rights treaties that have been ratified but not implemented through legislation. Therefore, the incorporation of international human rights treaties in Canadian domestic law is essential to provide Canadians with easy and adequate access to justice. The continuing absence of their incorporation in Canadian law may hamper Canadian efforts to fulfill international obligations. A monitoring body may stimulate compliance with international obligations, and ensure that Canadian citizen rights are not compromised. In this article, the authors argue that Canada cannot afford to adopt such principles as the presumption of conformity and the legitimate expectations doctrine that are characterized by unpredictable outcomes. The aim of this article is to propose the creation of a domestic body that would monitor the implementation of human rights treaties ratified by Canada. The proposed public body would take the form of an ombudsperson, a commissioner or a parliamentary committee.
1 A shorter version of this article was delivered as inaugural lecture of the Hans & Tamar Oppenheimer Chair in Public International Law at the Faculty of Law of McGill University: see the launch at
Au Canada, tout comme dans d’autres États suivant le modèle constitutionnel britannique, les traités internationaux, même ratifiés, n’ont pas d’effet direct en droit interne. Par conséquent, les traités doivent être incorporés avant de devenir une composante du droit national. Ainsi, de nombreux traités ratifiés par le Canada, notamment ceux portant sur les droits de la personne, demeurent sans effet, et de nombreux Canadiens se retrouvent privés de recours en vertu des traités. Dans ces conditions, l’incorporation en droit interne de ces traités ratifiés par le Canada constitue un besoin pressant afin d’assurer à ses citoyens un accès facile et effectif aux droits qu’ils prévoient. Une institution indépendante pourrait stimuler la mise en œuvre de ces accords, afin de permettre au Canada de respecter ses engagements et maintenir sa réputation internationale. Les auteurs suggèrent que le Canada ne peut pas se permettre d’adopter le principe de la présomption de conformité ou celle de l’expectative légitime dont l’application mène à des résultats imprévisibles. Cet article propose la création d’une institution nationale pour superviser la mise en œuvre des traités ratifiés par le Canada en matière des droits de la personne qui pourrait prendre la forme d’un ombudsman, d’un commissaire au sein du bureau du Vérificateur Général du Canada, ou encore d’un comité parlementaire. Manirabona & Crépeau, Enhancing Implementation of Human Rights Treaties n 27
I. Introduction s a sovereign State endowed with an international legal personality, Canada is free to enter into treaties with one or more states or with Ainternational organizations. Like many other Commonwealth states, the treaty-making decision power remains with the executive branch of the government in its capacity as the unique holder of authority to represent the State in the international sphere.4 According to a long-standing constitutional tradition in Canada, there is “no legal obligation on the executive [branch of government] to secure the consent or approval of Parliament prior to treaty ratification.”5 In contrast, on a domestic level, “Parliament is the ultimate law- making authority in a Westminster-style democracy.”6 In France, like other monist states, treaties are automatically granted the force of law without the requirement of any further domestic formal recognition. Generally, in these states, there is a constitutional provision that declares a ratified treaty to become part of national law. However, Canada’s legal system refuses to recognize treaties as being a direct source of domestic law unless they are incorporated7 by an act of Parliament.8 In other words, unincorporated treaties are not binding on Canadian national institutions, though at the international level they bind Canada as a state party. The treaties
4 However, some exceptions exist. For example, in the United States, the executive branch of the government shares the treaty-making power with the Senate. 5 Joanna Harrington, “Redressing the Democratic Deficit in Treaty Law Making: (Re-)Establishing a Role for Parliament” (2005) 50 McGill LJ 465 at 468 [Harrington, “Democratic Deficit”]. 6 Ibid. Nevertheless, it is noteworthy that since 2008, the government has adopted a policy of tabling signed treaties in Parliament. The purpose of that policy is “to ensure that all instruments governed by public international law, between Canada and other states or international organizations, are tabled in the House of Commons following their signature or adoption by other procedure and prior to Canada formally notifying that it is bound by the Instrument.” (Canada, Department of Foreign Affairs and International Trade, Policy on Tabling of Treaties in Parliament (January 2008), s 2, online: Canada Treaty Information
9 Hogg, ibid at 11-5. 10 Van Ert, supra note 8 at 231. 11 David Dyzenhaus, Murray Hunt & Michael Taggart, “The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation” (2001) 1:1 OUCLJ 5 at 5: “[w]hen the source of the international obligations constraining executive discretion is a convention ratified by the executive, but not incorporated by parliament into legislation, traditional alarm bells ring. Such ‘backdoor’ incorporation seems to amount to executive usurpation of the legislature’s monopoly of law-making authority, or to judicial usurpation of the same, or to a combination of both”. See also Armand de Mestral & Evan Fox- Decent, “Implementation and Reception: The Congeniality of Canada’s Legal Order to International Law” in Oonagh E Fitzgerald, ed, The Globalized Rule of Law: Relationships between International and Domestic Law (Toronto: Irwin Law, 2006) 31 at 31 [De Mestral & Fox-Decent, “Implementation and Reception”]. 12 Denis Galligan & Deborah Sandler, “Implementing Human Rights” in Simon Halliday & Patrick Schmidt, eds, Human Rights Brought Home: Socio-Legal Perspectives on Human Rights in the National Context (Portland, OR: Hart, 2004) 23 at 29. 13 Hugh M Kindred, “The Use of Unimplemented Treaties in Canada: Practice and Prospects in the Supreme Court” in Chi Carmody, Yuji Iwasawa & Sylvia Rhodes, eds, Trilateral Perspectives on International Legal Issues: Conflict and Coherence (Baltimore: American Society of International Law, 2003) 3 at 8-9. For more details about treaty incorporating means, see Armand de Mestral & Evan Fox-Decent, “Rethinking the Manirabona & Crépeau, Enhancing Implementation of Human Rights Treaties n 29
Despite the fact that Canada is supposed to ratify international treaties, after taking necessary measures to ensure the enforcement of its obligations in domestic law, this has not always been the case.14 Furthermore, not all treaties need to be incorporated via the legislative branch. For example, as Kindred points out, “a whole class of treaties concerning inter-state relations can simply be executed by the government of Canada pursuant to its powers under the Constitution to conduct foreign affairs. These kinds of treaties … are of no concern to internal Canadian law.”15 Given the structure of the Canadian federal system, the process of incorporating treaties is somewhat complicated. While it may appear straightforward for the executive branch of the government to initiate the enactment of a statute incorporating treaties, the process is more complicated in cases in which international treaties encroach on a subject matter that falls, in part or in whole, within provincial jurisdiction. It was held in the Labour Conventions Case that, where the subject matter of a treaty is outside the federal government’s jurisdiction, legislative assent of provincial legislatures is required. 16 Hence, if a ratified treaty requires the involvement of the provinces in order to be implemented, provincial political reasons may impede the enactment of any new legislation. This is the case particularly where provinces are not involved in the ratification process.17 The provinces are not, however, the only source of impediment to incorporating legislation. It may well be the case that the federal government considers Canadian legislation to be in compliance with a given treaty and that further enactment of a new incorporating statute would be, practically speaking, unnecessary.18 Experience has shown that Canada’s international human rights treaty obligations can be considered as already implemented
Relationship between International and Domestic Law” (2008) 53:4 McGill LJ 573 at 617-22 [De Mestral & Fox-Decent, “Rethinking the Relationship”]. See also France Houle, “La légitimité constitutionnelle de la réception directe des normes du droit international des droits de la personne en droit interne canadien” (2004) 45:2 C de D 295 at 297-98. 14 For example, the Kyoto Protocol to the United Nations Framework Convention on Climate Change, 11 December 1997, 2303 UNTS 148, 37 ILM 22, was ratified without necessary measures to ensure its full enforcement in domestic law. 15 Kindred, supra note 13 at 7. 16 Attorney-General for Canada v Attorney-General for Ontario et al, [1937] AC 326, [1937] 1 DLR 673 (PC) [Labour Conventions Case]. 17 Although it is argued that the federal government usually consults the provincial governments to ensure that they are willing to pass the required legislation (See Elisabeth Eid & Hoori Hamboyan, “Implementation by Canada of its International Human Rights Treaty Obligations: Making Sense Out of the Nonsensical” in Fitzgerald, supra note 10, 449), there is no assurance that this promise will be systematically kept, especially when prior to the enactment of a required legislation, a provincial government loses elections. 18 Van Ert, supra note 8 at 247-48. 30 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts through the Canadian Charter of Rights and Freedoms19 as well as through the publicity and educational activities of government agencies. Yet, as noted, in the absence of a specific treaty incorporating legislation, the general trend is that treaties are not legally enforced on a national level. Effectively, this means that no domestic human rights claims may be based on treaties before domestic courts. Only the incorporation of a treaty into domestic law enables private persons to have access to domestic remedies in cases of violation of legal rights which have been created by that treaty. Although the domestic incorporation of treaties is a requirement, the Supreme Court of Canada has referred to some locally unincorporated human rights treaties from time to time. This has been done by virtue of the Doctrine of Legitimate Expectation,20 or by considering the values enshrined in them during the process of statutory interpretation.21 Nevertheless, without an incorporating statute to give legal effect to international treaties within the domestic legal sphere, there is no evidence that Canadian courts are compelled to make their decisions correspond with Canada’s international obligations.22 Notwithstanding some criticisms,23 a considerable trend in Canadian legal practice takes the position that, although some provisions of a treaty may be encompassed by domestic legislation, that treaty remains unincorporated in the absence of an explicit incorporating statute. Canada has ratified or acceded to all of the six core international human rights treaties, namely the International Covenant on Civil and Political Rights,24 the International Covenant on Economic, Social and Cultural Rights,25 the International Convention on the Elimination of All Forms of Racial Discrimination,26
19 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 20 Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at para 119, [2002] 1 SCR 3 [Suresh]. 21 Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 174 DLR (4th) 193 [Baker cited to SCR]. In this case, the Supreme Court highlighted the fact that the ratification by Canada of the Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3, Can TS 1992 No 3 (entered into force 2 September 1990), testified to its commitment towards children’s protection values enshrined in that convention. See also R v Sharpe, 2001 SCC 2, [2001] 1 SCR 45. 22 See Ahani v Canada (Attorney General) (2002), 58 OR (3d) 107, 208 DLR (4th) 66 (CA) [Ahani (CA)]; Ahani v Canada (Minister of Citizenship and Immigration), 2002 SCC 2, [2002] 1 SCR 72 [Ahani]; Bouzari v Islamic Republic of Iran (2004), 71 OR (3d) 675, 243 DLR (4th) 406 (CA). See also Stéphane Beaulac, “National Application of International Law: The Statutory Interpretation Perspective” (2003) 41 Can YB Int’l L 225 at 259. 23 Joanna Harrington, “Punting Terrorists, Assassins and Other Undesirables: Canada, the Human Rights Committee and Requests for Interim Measures of Protection” (2003) 48:1 McGill LJ 55 [Harrington, “Punting Terrorists”]; Hugh M Kindred & Phillip M Saunders, eds, International Law: Chiefly as Interpreted and Applied in Canada, 7th ed (Toronto: Emond Montgomery, 2006) at 206, 234-36; De Mestral & Fox- Decent, “Rethinking the Relationship”, supra note 13 at 623-25. 24 19 December 1966, 999 UNTS 171, Can TS 1976 No 47 (entered into force 23 March 1976). 25 16 December 1966, 993 UNTS 3, Can TS 1976 No 46 (entered into force 3 January 1976). 26 7 March 1966, 660 UNTS 195, Can TS 1970 No 28 (entered into force 4 January 1969). Manirabona & Crépeau, Enhancing Implementation of Human Rights Treaties n 31
the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,27 the Convention on the Rights of the Child,28 and the Convention on the Elimination of All Forms of Discrimination against Women.29 None of them have been specifically incorporated into Canadian law.30 As human rights treaties are designed to grant legal rights to citizens and residents, the absence of domestic legislation giving legal effect to them may result in the denial of justice because no legal claims may be made in reference to them. Furthermore, the lack of local incorporation of human rights treaties may undermine the general status of the rule of law in Canada. We propose the establishment of a monitoring body which would have as its principle duty the task of overseeing Canada’s compliance with all international human rights treaties, including the incorporation of these treaties in Canadian law. At the international level, many human rights treaties and conventions generally create institutional mechanisms to oversee compliance by state parties.31 For example, Canada may face complaints lodged before international human right bodies where there is a failure to perform its treaty obligations at the domestic level. Canada is subject also to the United Nations Human Rights Council Universal Periodic Review which provides a mechanism for every country to have its human rights record reviewed and critiqued by its peers. However, there is no international process that dictates to sovereign states how to perform their human rights treaty obligations effectively. In addition, the federal government is suspected of proceeding in a hidden manner that leaves civil society organizations unable to contribute adequately to the United Nations review process.32 As such, this international monitoring mechanism cannot ensure effective compliance with human rights obligations by Canada on a domestic level. Moreover, the Universal Periodic Review is considered to take place in a climate of dissent and division within the Human Rights Council, a body perceived as politically directed and controlled by states with distinct ideological goals and socio- political objectives.33
27 10 December 1984, 1465 UNTS 85, Can TS 1987 No 36 (entered into force 26 June 1987). 28 Supra note 21. 29 18 December 1979, 1249 UNTS 13, Can TS 1982 No 31 (entered into force 3 September 1981). 30 Christof Heyns & Frans Viljoen, The Impact of the United Nations Human Rights Treaties on the Domestic Level, (The Hague: Kluwer Law International, 2002) at 124-25. 31 See Andreas Zimmermann, “Dispute Resolution, Compliance Control and Enforcement in Human Rights Law” in Geir Ulfstein, ed, Making Treaties Work: Human Rights, Environment and Arms Control (Cambridge, UK: Cambridge University Press, 2007) 15 at 22-37. 32 See Foreign Affairs, Periodic Review, infra note 116. 33 Joanna Harrington, “Canada and the United Nations Human Rights Council: Dissent and Division” (2010) 60 UNBLJ 78. 32 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts
Assuming that complaints that are made by Canadian citizens and residents are reviewable by those international human rights treaty-monitoring bodies, the cost associated with such an international litigation system may discourage many individuals from resorting to those mechanisms. It is still the case that any decision made by an international human rights treaty-monitoring body may not be enforced on a domestic level.34 Consequently, there is a pressing need for the creation of such a mechanism at a national level in Canada. There remains a great deal of uncertainty surrounding the question as to whether or not a given treaty has been incorporated by the Canadian legal system.35 The purpose of this article is not to examine whether a specific international treaty has or should be incorporated into Canadian domestic law. Instead, this article surveys the issue broadly and advocates for the creation of a monitoring mechanism. This mechanism would be designed to oversee the enforcement process of Canada’s obligations under human rights treaties, starting from the stage of ratification and continuing until the enactment of domestic incorporating legislation. The proposed monitoring body would have the necessary power to engage in requisite discussions with the provinces and territories in order to obtain full implementation of human rights treaties where the subject matter of those treaties would have a direct effect on their jurisdiction. Part I of this article deals with the consequences of unincorporated human rights treaties on Canadian citizens. We argue that Canada’s failure to incorporate human rights treaties in domestic law may result in a great cost for its citizens. The absence of incorporating legislation of human rights treaties could deprive Canadian citizens of the right to a remedy. We argue further that no interpretive principle functions to mitigate the possible detrimental effects of leaving a human rights treaty unincorporated. Part II proposes the establishment of a monitoring body to expedite the implementation process of the treaty into domestic law. Specifically, the public body monitoring the implementation of international human rights treaties would include a form of ombudsperson, commissioner for treaty affairs or House of Commons committee. Given the growing number of current and anticipated unincorporated human rights treaties in Canada, it is clear that Parliament, on its own, cannot adequately handle the domestic incorporation of all aspects of Canada’s human rights treaty obligations. We argue that a monitoring mechanism would aid Parliament in fostering effective incorporation of human rights treaties, as
34 Ahani (CA), supra note 22 at paras 31-41. 35 See e.g. Van Ert, supra note 8 at 238-50; De Mestral & Fox-Decent, “Rethinking the Relationship”, supra note 13 at 623; Stephen J Toope, “Inside and Out: The Stories of International Law and Domestic Law” (2001) 50 UNBLJ 11 at 14-17 [Toope, “Inside and Out”]. Manirabona & Crépeau, Enhancing Implementation of Human Rights Treaties n 33
well as ensuring that Canadians are aware of their ability to enforce their rights as granted by the ratification of human rights treaties by the Executive.
II. Consequences of Unincorporated Human Rights Treaties on Canadian Citizens In 1928, the Permanent Court of International Justice (PCIJ) held that even when international agreements do not create direct rights and obligations toward private persons in the domestic sphere, their very object may create some rules providing for individual rights and obligations enforceable by national courts.36 While the Court of International Justice system that succeeded the PCIJ does not adhere to the doctrine of stare decisis, this finding has never been challenged. If the parties to human rights treaties are states bearing an obligation to respect and ensure the fulfilment of various commitments, the objective of many human rights treaties is ultimately to grant rights to individuals. States that are parties to human rights treaties assume obligations to take action domestically so that individuals can benefit from the rights the treaties provide – including the possibility of lodging a claim for a state’s failure to fulfil its commitments. International human rights treaties that impose obligations on states to take domestic action can enable individuals to pursue their claims under domestic law. International treaties cannot, by themselves, have a direct effect on the Canadian legal system unless they are domestically implemented. In the absence of incorporating legislation, those treaties cannot benefit private actors since domestic remedies are unavailable when treaties remain unincorporated. However, in some circumstances, courts have recognized that even though unincorporated treaties may serve as guidance for tribunals tasked with interpreting domestic provisions, in practice this is a highly unpredictable process. The following sections survey these issues in greater detail. A. Unavailability of Domestic Remedies in Cases of Unincorporated Human Rights Treaties
In the past, international law was applied only to states or international organizations created by states. Since private actors did not have the attributes necessary to participate in the creation of treaties, they would not have been directly affected by the rights and obligations created by them. Private persons were regarded as mere objects of international law.37 The rationale was that,
36 Jurisdiction of the Courts of Danzig (1928), PCIJ (Ser B) No 15 at 17-18. 37 Paul Sieghart, The International Law of Human Rights (Oxford, UK: Oxford University Press, 1983) at 16-17; Krzysztof Drzewicki, “The Status of International Human Rights Instruments in Domestic Law” 34 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts insofar as international responsibility is mainly held by states, the individual was not affected by international law, except indirectly through the state.38 This view of international law has evolved considerably. Since the end of the 19th century, states have realized that maintaining international peace and security requires that, in certain circumstances, private actors be directly subject to international law. By way of example, in order to combat international piracy, states decided to impose international legal duties directly on individual pirates. Pirates were no longer considered ‘objects’ of international law, and states were authorized to capture them and hold them legally responsible for the crimes they committed.39 In addition, the international community recognized that private actors’ rights also were worthy of strong protection under international law. In order to avoid the repetition of heinous crimes, such as those that occurred before and during the Second World War, international instruments were drafted to acknowledge that individuals were subjects of internationally protected rights.40 By way of example, the Charter of the United Nations states that: With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:
…
c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.41 While international law had, at first, been concerned only with the violation of foreigners’ rights, international protection has been extended subsequently to nationals suffering from domestic mistreatments.42 Many international treaties are comprised of chapters aimed at directly providing certain rights to private persons with a particular emphasis on human rights.43 As Slaughter
in Allan Rosas, ed, International Human Rights Norms in Domestic Law: Finnish and Polish Perspectives (Helsinki: Finnish Lawyers’, 1990) 1 at 4. 38 Julie Cassidy, “Emergence of the Individual as an International Juristic Entity: Enforcement of International Human Rights” (2004) 9:9 Deakin L Rev 533 at 539. 39 Ibid at 551. 40 Ibid at 554. 41 Charter of the United Nations, 26 June 1945, Can TS 1945 No 7, art 55(c). 42 Louis B Sohn, “The New International Law: Protection of the Rights of Individuals Rather Than States” (1982) 32:1 Am U L Rev 1 at 4-5. 43 Many treaties recognize the right of private persons to access international or national tribunals in order to hold a state or its agents liable for violations of international obligations. See e.g. International Covenant on Civil and Political Rights, supra note 24, art 2(3); Anne-Marie Slaughter & William Burke-White, “An International Constitutional Moment” (2002) 43:1 Harv Int’l LJ 1 at 14; Sangeeta Shah, “Seeking Remedies for Violations of International Humanitarian Law: Markovic v Italy” (2007) 7:2 Hum Rts L Rev 412; Sital Kalantry, “The Intent-to-Benefit: Individually Enforceable Rights Under International Treaties” (2008) Manirabona & Crépeau, Enhancing Implementation of Human Rights Treaties n 35
and Burke-White rightly point out, international law is now replacing the principle of “territorial boundaries inviolability” with the principle of “civilian inviolability”.44 To enforce human rights at the international level, many states have created tribunals that function to provide aggrieved individuals an opportunity to obtain redress for injuries suffered following a breach of international obligations by a state.45 This is true for states in Europe, America, Africa, and Asia. In addition to the tribunals created by individual states, the monitoring of core UN international human rights treaties is performed by special committees. The committees are comprised of independent experts and created in accordance with the provisions of the treaty that they monitor.46 Insofar as private actors’ remedies are provided for either at the international level or at the domestic level,47 many claims for violations of international treaties are likely to be brought before domestic tribunals. A great number of persons should be benefiting from access to domestic courts as granted to them pursuant to the rights enshrined in international human rights treaties. Domestic courts are the most competent bodies at enforcing an individual’s rights under international treaties. However, as already discussed, without the intervention of the legislative branch of government, which is regarded as the sole legitimate lawmaker at the domestic level, international treaties cannot have direct legal effect in Canada. Unfortunately, the enactment process of new legislation designed to incorporate international treaties into domestic law often has been unsatisfactory when it comes to human rights matters. The official justification for this is that Canadian law provides at least as much protection as international human rights treaties.48 The Charter, as well as federal and provincial human rights statutes, are deemed to implement fully Canada’s international human rights obligations. Nevertheless, according to Almeida and Porret, this is not exactly true, especially in the case of economic, social, and cultural rights, as well as in matters relating to discrimination.49
44:1 Stan J Int’l L 63; Sangeeta Shah, “From Westminster to Strasbourg: A and Others v United Kingdom” (2009) 9:3 Hum Rts L Rev 473. 44 Slaughter & Burke-White, ibid at 13-14. 45 Oscar Schachter, International Law in Theory and Practice (Boston: Kluwer Law International, 1995) at 239. 46 For a list of the committees, see Office of the United Nations High Commissioner for Human Rights, “Human Rights Treaty Bodies: Monitoring the Core International Human Rights Treaties”, online: OHCHR While one may argue that the economic, social and cultural rights found in the International Covenant on Economic, Social and Cultural Rights50 are subject, by the very terms of the treaty, to the availability of resources, the precarious living conditions of some Canadians demonstrate bad faith on the part of the government.51 When legal practitioners try to ground claims on unimplemented human rights treaties, the courts are unwilling to give credence to these claims, citing the non-incorporation of those treaties on a domestic level.52 As a result, without an explicit act of a legislature designed to implement international treaties, Canadians cannot benefit from the remedies that they provide.53 This appears to be contrary to the requirements of the principle of the rule of law as it implies, among other things, subjection to known legal rules as well as executive accountability to legal authority.54 Some international treaties may yet grant protections or benefits to private actors in Canada, notwithstanding their lack of incorporation into domestic law. Whether or not this occurs depends on certain considerations, perhaps the most important of which is the process of statutory interpretation conducted site/_PDF/publications/intHRadvocacy/canadaCommitment.pdf> (“[w]hile Canadian human right law exceeds international standards for some rights, this is not always the case. … The Government of Canada has not consistently translated its international obligations into domestic law. … [D]iscrepancies exist in terms of the scope and substance of actual human rights and in the remedies that are made available in instances of violations of these rights. This is especially true for economic, social and cultural rights, but also for civil rights such as the prohibition of discrimination based on social origin and the right to privacy” at 40-41). 50 Supra note 25. 51 David R Boyd, “No Taps, No Toilets: First Nations and the Constitutional Right to Water in Canada” (2011) 57:1 McGill LJ 81. 52 Baker, supra note 21 at paras 69, 79; Suresh, supra note 20 at para 60. However, it is important to note that some authors rightly suggested the opposite approach arguing that even though there is no specific legislative transformation, if “Canadian law is in conformity with a treaty due to prior statutory, common law, or even administrative policy,” the treaty should be considered as “implemented for the purposes of domestic law”: Jutta Brunnée & Stephen J Toope, “A Hesitant Embrace: Baker and the Application of International Law by Canadian Courts” in David Dyzenhaus, ed, The Unity of Public Law (Portland, OR: Hart, 2004) 357 at 363. See also Elizabeth Brandon, “Does International Law Mean Anything in Canadian Courts?” (2001) 11 JELP 399 at 401-07. For the contrary argument, see Beaulac, supra note 22 at 245-48. 53 Almeida & Porret, supra note 49 (“[a] significant objective of international human rights is the genuine and practical implementation of the commitments of States to all human beings. Canadians tend to benefit on paper from a relatively high degree of protection of human rights due to ratification of international human rights instruments and the Canadian Charter of Rights and Freedom and the federal and provincials human rights laws. What is lacking, however, is the requisite domestic framework that would allow Canadians to realize their rights and give them effective and accessible remedies if and when their rights are violated.… [M]any international human rights treaties ratified by Canada do not benefit from implementing legislation. As a consequence, Canadians cannot request their courts to compel the Canadian governments (federal, provincial and territorial) to comply with their international obligations” at 39-40). 54 Reference re Manitoba Language Rights, [1985] 1 SCR 721 at 749-50, 19 DLR (4th) 1. See also Re Resolution to amend the Constitution, [1981] 1 SCR 753 at 805-06, 125 DLR (3d) 1. Manirabona & Crépeau, Enhancing Implementation of Human Rights Treaties n 37 by Canadian courts. Many recent cases however, have demonstrated that this process yields inconsistent and unpredictable results. B. The Lack of Predictable Significance of Unincorporated Treaties During the Process of Statutory Interpretation The dualist idea that a treaty must be incorporated by an act of Parliament in order to be introduced into Canadian law is largely accepted in the Canadian legal community.55 However, there is no consensus, either in judicial practice or among scholars, about the real role and effect of unincorporated treaties during the process of statutory interpretation. Many recognize the relevance of the long-standing judicial rule of the Doctrine of the Presumption of Conformity. Simply put, the rule holds that Canadian domestic law should be construed to conform to Canada’s international obligations. Those obligations may stem from either incorporated or unincorporated treaties. The real significance of this judicial rule in Canadian courts has been subject to various levels of appreciation and interpretation.56 The evolution of the Doctrine of the Presumption of Conformity in the Canadian judicial process can be divided into three stages. The first stage encompasses the time before the Supreme Court’s decision in Baker.57 During this period, the principle requiring that Canadian law be interpreted in conformity with Canada’s international obligations was not largely contested, even though it was not uniformly applied.58 The second stage began with Baker. Rather than elaborating and explaining the real scope of the Presumption of Conformity rule, Baker created confusion. The third stage developed in the post-Baker period as further case law developed. Even now, there is uncertainty surrounding the exact importance and function of the Doctrine of the Presumption of Conformity in Canadian law. i. The Doctrine of the Presumption of Conformity in the Pre-Baker Era The Canadian roots of the Doctrine of Presumption of Conformity can be traced back to the Arrow River case of 1931.59 Although the Ontario Court of Appeal was dealing with an international treaty that was not domestically incorporated in this case, the court construed a provision of domestic legislation 55 See Baker, supra note 21 at paras 69, 79; Suresh, supra note 20 at para 60. 56 Toope, “Inside and Out”, supra note 35. 57 Baker, supra note 21 at paras 69, 79. 58 See John H Currie, Public International Law, 2d ed (Toronto: Irwin Law, 2008) at 254-55 [Currie, International Law]. 59 Re Arrow River & Tributaries Slide & Boom Co, [1931] 2 DLR 216, 66 OLR 577 (CA) [Arrow River cited to DLR]. 38 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts in a narrow manner, holding that domestic legislation must be interpreted so as to avoid conflicts with international treaty obligations that are binding on Canada.60 Even though the ruling was reversed by the Supreme Court of Canada,61 the decision left a significant mark on the Canadian approach to statutory interpretation. By way of example, in Daniels v White,62 the Supreme Court stated that Parliament is presumed not to legislate in breach of a treaty, or in any manner inconsistent with the comity of nations unless by a clear, unambiguous, and unmistakable intent.63 Subsequent cases have inconsistently applied the Doctrine of Presumption of Conformity to instances of domestically incorporated and unincorporated international treaties.64 In Zingre,65 in accordance with the Anglo-Swiss Treaty of 1880, 66 Switzerland asked Canada to allow the investigating judges’ commission to take testimony in Canada where crimes were allegedly committed by three Swiss nationals. The appeal before the Supreme Court of Canada sought to challenge the validity of the request. Although the Anglo- Swiss Treaty was unincorporated in domestic law, the Court ruled that, in responding affirmatively to the request which has been made the Court will be recognizing and giving effect to a duty to which Canada is subject, by treaty, under international law. It is common ground that the treaty applies…. The Treaty of 1880 places Canada under a specific obligation to comply with the Swiss request. If Canada denies the Swiss request it will be in breach of its international obligations. By the terms of the Treaty, orders for commission evidence, as requested by the Swiss, are part and parcel of the surrogate criminal proceedings in Switzerland.67 In Ordon Estate v Grail,68 the issue concerned a statute which provided for two different limitation periods with respect to claims arising over fatal accidents involving boat collisions. In accordance with an international treaty, the Court dismissed the appeal seeking the application of a shorter limitation period: In the absence of any valid reason to justify applying a shorter limitation period which would have the effect of barring the plaintiffs’ claims, the plaintiffs should have the benefit of the more favourable limitation period.… [A]pplying the one-year limitation period in s. 649 to all fatal accident claims stemming from boating collisions would place Canada in breach of its international treaty obligations. Although 60 Ibid at 217. 61 Arrow River & Tributaries Slide & Boom Co Ltd v Pigeon Timber Co Ltd, [1932] SCR 495, [1932] 2 DLR 250. 62 Daniels v White and The Queen, [1968] SCR 517, 2 DLR (3d) 1 [Daniels v White cited to SCR]. 63 Ibid at 541, Pigeon J, concurring. 64 Currie, International Law, supra note 58 at 255. 65 Zingre v The Queen et al, [1981] 2 SCR 392, 127 DLR (3d) 223 [Zingre cited to SCR]. 66 Treaty of Extradition, Switzerland and United Kingdom, 26 November 1880, 71 BFSP 54, cited in Zingre, ibid at 409 [Anglo-Swiss Treaty]. 67 Zingre, ibid at 409-10. 68 Ordon Estate v Grail, [1998] 3 SCR 437, 166 DLR (4th) 193 [cited to SCR]. Manirabona & Crépeau, Enhancing Implementation of Human Rights Treaties n 39 international law is not binding upon Parliament or the provincial legislatures, a court must presume that legislation is intended to comply with Canada’s obligations under international instruments and as a member of the international community. In choosing among possible interpretations of a statute, the court should avoid interpretations that would put Canada in breach of such obligations….69 As already noted, the Doctrine of Presumption of Conformity requires that any interpretation of national law be made in conformity with Canada’s international obligations – except in the event of an unequivocal legislative intention to the contrary.70 The rationale underlying this approach is that “as a matter of law, courts will strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations, unless the wording of the statute clearly compels that result.”71 In deciding between possible interpretations, courts will avoid a construction that would place Canada in breach of its obligations both as a signatory of international treaties, and as a member of the international community.72 It has been argued that the rule stemming from the Doctrine of Presumption of Conformity should apply only in cases of incorporated treaties; any other approach would undermine the Canadian dualist system by giving “force and effect within the domestic legal system to international obligations undertaken by the executive alone that have yet to be subject to the democratic will of Parliament.”73 The proponents of this view base their argument on the Court of Appeal ruling in Salomon;74 however, this is a very conservative approach. Another approach is to recognize that since both incorporated and unincorporated treaties are internationally binding on Canada, they both require equal consideration. The reasonable approach would be to treat an incorporated treaty as a source of mandatory domestic legal norms and to apply the Doctrine of Presumption of Conformity to unincorporated treaties; 69 Ibid at paras 136-37 [citations omitted]. 70 R v Hape, 2007 SCC 26 at para 53, [2007] 2 SCR 292 [Hape]; Brunnée & Toope, supra note 52 at 363; René Provost, “Judging in Splendid Isolation” (2008) 56:1 Am J Comp L 125 at 153. 71 Hape, ibid. 72 Ibid; Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed (Markham, ON: LexisNexis Canada, 2008) at 539. 73 Baker, supra note 21 at para 80, Cory & Iacobucci JJ; See also Currie, International Law, supra note 58 at 255. 74 Salomon v Commissioners of Customs and Excise (1966), [1967] 2 QB 116 at 143, [1966] 3 All ER 871 (CA) [Salomon] (“the treaty, since in English law it is not self-operating, remains irrelevant to any issue in the English courts until Her Majesty’s Government has taken steps by way of legislation to fulfil its treaty obligations. Once the Government has legislated…, the court must in the first instance construe the legislation, for that is what the court has to apply. If the terms of the legislation are clear and unambiguous, they must be given effect to, whether or not they carry out Her Majesty’s treaty obligations, for the sovereign power of the Queen in Parliament extends to breaking treaties…. But if the terms of the legislation are not clear but are reasonably capable of more than one meaning, the treaty itself becomes relevant, for there is a prima facie presumption that Parliament does not intend to act in breach of international law…” [citations omitted]). 40 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts the same would apply to other international norms which do not explicitly contradict Canadian domestic law. A legislatively incorporated treaty should even prevail over contrary domestic law because a treaty is usually designed to bring a necessary correction to domestic law. Some commentators have noted that the Doctrine of Presumption of Conformity is likely to resolve many of the problems related to the relationship between national and international law.75 Unfortunately, this doctrine has not been uniformly applied by Canadian courts.76 Moreover, this rule was weakened by Baker. ii. Baker Undermines the Presumption of Conformity Rule Although it has been more than ten years since the Supreme Court of Canada’s decision in Baker, it remains one of the most discussed decisions by Canadian scholars. Baker was an opportunity for the Supreme Court to discuss explicitly the real significance of a human rights treaty which is not incorporated in Canadian law. The Court examined an appeal seeking to overturn an immigration officer’s decision relating to a deportation order. The appellant, who had Canadian-born dependent children, grounded her argument on the premise that the best interests of the children should be of prime importance, a principle enshrined in the Convention on the Rights of the Child.77 Ultimately, because the Convention on the Rights of the Child had not been incorporated specifically through Canadian domestic legislation, even though it was ratified and mostly implemented in federal and provincial law, the Federal Court of Appeal refused to give effect to the appellant’s argument. The Court held that doing so would interfere with the separation of powers between the executive branch and the legislative branch of government. At the outset, the Court acknowledged the long-existing principle that unincorporated treaties have no direct application in Canadian law; however, it added that the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.… The legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional. These constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, interpretations that reflect these values and principles are preferred.… The values and principles of the Convention recognize the importance of being attentive to the rights and best 75 See e.g. Gibran van Ert, “Using Treaties in Canadian Courts” (2000) 38 Can YB Int’l L 3 at 28; De Mestral & Fox-Decent, “Implementation and Reception”, supra note 11; De Mestral & Fox-Decent, “Rethinking the Relationship”, supra note 13 at 598. 76 See e.g. Stephen J Toope, “Re Reference by the Governor in Council Concerning Certain Questions Relating to the Secession of Quebec from Canada” (1999) 93 Am J Int’l L 519 at 523, n 25. 77 Supra note 21, art 3(1) (“[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”). Manirabona & Crépeau, Enhancing Implementation of Human Rights Treaties n 41 interests of children when decisions are made that relate to and affect their future.78 Rather than discussing the conformity of domestic law with international law, the majority in Baker referred to respect for “the values and principles” enshrined in international law during the interpretation process of domestic law. Although some scholars interpreted this approach as the equivalent to the application of the Doctrine of Presumption of Conformity,79 others consider the reasoning as a regrettable underestimation of it. In reality, the Court unnecessarily distinguished between provisions of the law versus values of the law instead of having recognized and allowed recourse to both. By drawing that distinction, the Court “implied that Canada’s international obligations, as expressed in the provisions of the [unincorporated] Convention, are not covered by the presumption of statutory conformity.”80 Rather than holding that, to the extent possible, statutes should be construed in conformity with Canada’s international legal obligations, the Court ruled that international law “may help inform” – which is something less than what is required by the Doctrine of the Presumption of Conformity. In short, the Court treated the Convention on the Rights of the Child like a non-binding international norm.81 Although it has been said that Baker has altered the dualist approach of the Canadian legal system with respect to treaty matters;82 in practice, the Supreme Court may have been dealing less with treaty law than with customary international law, despite the fact that customary international law was not invoked.83 To the extent that customary norms are automatically incorporated into domestic law, had the Supreme Court treated the expression “best interests of the child” as one of the components of customary international law, there would have been no need to refer to the Doctrine of Presumption of Conformity.84 Even if this approach appears convincing, it does not resolve the problem of determining the precise scope of the Doctrine of the Presumption of Conformity that remains surrounded by uncertainty even today. 78 Baker, supra note 21 at paras 70-71, citing Ruth Sullivan, Driedger on the Construction of Statutes, 3d ed (Toronto: Butterworths Canada, 1994) at 330. 79 De Mestral & Fox-Decent, “Rethinking the Relationship”, supra note 13 at 598. 80 Brunnée & Toope, supra note 52 at 371. 81 Ibid at 371-73. 82 John H Currie, Craig Forcese & Valerie Oosterveld, International Law: Doctrine, Practice, and Theory (Toronto: Irwin Law, 2007) at 115. 83 Provost, supra note 70 at 137. 84 Toope, “Inside and Out”, supra note 35 at 20; Provost, ibid. 42 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts iii. The Continuing Uncertainty Around the Doctrine of the Presumption of Conformity After Baker The Baker approach regarding the Doctrine of the Presumption of Conformity has been adopted in a large number of cases handled by the Supreme Court.85 Accordingly, international norms may merely “help inform the contextual approach to statutory interpretation and judicial review.”86 While the Doctrine of the Presumption of Conformity appears to compel an interpretation consistent with international law, the phrase “may help inform” treats the conformity with international norms simply as an option. Baker stands “as an authority for the proposition that the appropriate way to consider international law is now as an element of context and not through a presumption of conformity.”87 The influence of the Doctrine of Presumption of Conformity was weakened further by subsequent decisions. In Suresh, the Supreme Court held that reference to international unincorporated treaties is made as evidence of the principles of fundamental justice “and not as controlling in itself.”88 Although some researchers suggest that recent decisions indicate a return to the pre-Baker approach,89 it seems that “the presumption of conformity with international law does not any longer correspond to the statutory interpretation approach favoured in Canada.”90 Far from returning to the pre-Baker approach, the Supreme Court is approaching and analyzing the relationship between domestic and international law without a common and well-defined reasoning methodology. The judiciary has been criticized for approaching the interaction of domestic and international law without a clear and consistent methodology – even though it deals with the issue frequently.91 For example, in Hape, the Supreme Court reiterated that “the legislature is presumed to comply with the values and principles of customary and conventional international law”, and that “[t]hose values and principles form part of the context in which statutes are enacted, and courts will therefore prefer a construction that reflects them.”92 In Health Services and Support, the 85 See e.g. 114957 Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Town), 2001 SCC 40 at para 30, [2001] 2 SCR 241 [Spraytech v Hudson]. 86 Baker, supra note 21 at para 70, cited in Spraytech v Hudson, ibid at para 30. 87 Beaulac, supra note 22 at 259 [citations omitted]. 88 Supra note 20 at para 60. 89 Currie, International Law, supra note 58 at 258. 90 Beaulac, supra note 22 at 256. 91 De Menstral & Fox-Decent, “Rethinking the Relationship”, supra note 13. 92 Supra note 70 at para 53. See also at para 39: “[a]bsent an express derogation, the courts may look to prohibitive rules of customary international law to aid in the interpretation of Canadian law and the development of the common law.” Manirabona & Crépeau, Enhancing Implementation of Human Rights Treaties n 43 Supreme Court held that “Canada’s current international law commitments and the current state of international thought on human rights provide a persuasive source for interpreting the scope of the Charter.”93 However, the Supreme Court replaced “obligations under international law”, which had been utilized to that point, with “values and principles enshrined in international law”. The effect of the change is to suggest that there is no longer an obligation to construe domestic law in conformity with Canadian obligations under international law. Any construction that reflects the values and principles of international law seems sufficient. In referring to “reflect”, as opposed to “conform”, the Court has undoubtedly diminished the significance of the Doctrine of the Presumption of Conformity. By suggesting that treaty obligations and customary international law constitute a simple guide to the interpretation of Canadian legislation, as in Hape, the Court has contradicted its earlier holding in the very same case; the Court has deviated from the concept that customary norms are directly applicable in Canadian law.94 As Currie stressed, Hape generates further uncertainty on the use of international law in Canadian law.95 Rather than merely guiding the interpretation of domestic law, customary international law ought to be binding in the absence of clear, contrary legislation. In short, it is clear that the Doctrine of the Presumption of Conformity is applied inconsistently when it comes to determining which unincorporated human rights treaties could be enforced on the domestic level. Even if the Supreme Court had adopted the doctrine without confusion, it still has no direct effect on domestic law.96 As such, it cannot be said that the Doctrine of the Presumption of Conformity mitigates the principle that unincorporated treaties have no direct application in domestic legal system. Even if ratified international human rights treaties remain domestically unincorporated, they are still binding on Canada on the international stage. Canada’s international obligations should be meaningfully and substantially considered at the 93 Health Services and Support - Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC 27 at para 78, [2007] 2 SCR 391 [Health Services and Support]. 94 See Hape, supra note 70 at para 39: “[i]n my view, following the common law tradition, it appears that the doctrine of adoption operates in Canada such that prohibitive rules of customary international law should be incorporated into domestic law in the absence of conflicting legislation. The automatic incorporation of such rules is justified on the basis that international custom, as the law of nations, is also the law of Canada unless, in a valid exercise of its sovereignty, Canada declares that its law is to the contrary. Parliamentary sovereignty dictates that a legislature may violate international law, but that it must do so expressly.” 95 John H Currie, “Weaving a Tangled Web: Hape and the Obfuscation of Canadian Reception Law ” (2007) 45 Can YB Int’l Law 55. 96 Currie, International Law, supra note 58 at 258. 44 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts domestic level, and not be used simply in a persuasive role as a rule of statutory interpretation.97 We now turn to examine whether the Doctrine of Legitimate Expectations can improve the condition and applicability of unincorporated human rights treaties in Canadian law. C. The Limits of Applying the Doctrine of Legitimate Expectations The Doctrine of Legitimate Expectation arose from a decision of the High Court of Australia in the Teoh case.98 According to this doctrine, the ratification of a treaty by the executive branch of government creates a legitimate expectation on the part of citizens that executive agencies will honour the international obligations to which it has committed. Being a public and official act, the ratification of a treaty by the executive ought to serve legitimately as legal grounds for citizens wishing to invoke the doctrine, at least at the procedural level.99 Had the executive branch wished to exempt the domestic law from the obligations which it had undertaken as a result of ratifying an international treaty, it would have informed the concerned citizens about its intention to do so.100 According to some commentators, [R]atification signals the intention of the government to be bound by the treaties it ratifies, and … this public display of the government’s intention is sufficient to give rise to a legitimate expectation and (therefore) to a presumption that the state intends to respect the obligations of the treaty in its domestic as well as in its international dealings.101 In Canada, the Doctrine of Legitimate Expectations has been pleaded by litigants on several occasions. In Baker, the Supreme Court made reference to the doctrine, but the majority found that it was not applicable to the case. The Court refused, however, to settle the question of whether or not the doctrine could be applied in other circumstances concerning treaties ratified by Canada.102 The majority agreed with the Court of Appeal that “the doctrine of legitimate expectations does not mandate a result consistent with the wording of any international instruments ….”103 In general, while this legal doctrine is 97 See Brunnée & Toope, supra note 52 at 374. 98 Minister for Immigration and Ethnic Affairs v Teoh (1995), 183 CLR 273, 128 ALR 353 (HCA) [Teoh cited to CLR]. 99 Baker, supra note 21 at para 26. 100 Teoh, supra note 98 at 291. 101 De Mestral & Fox-Decent, “Implementation and Reception”, supra note 11 at 41. 102 Baker, supra note 21 at para 29. 103 Ibid at para 74. Manirabona & Crépeau, Enhancing Implementation of Human Rights Treaties n 45 substantive in Australia and the United Kingdom, it is only of a procedural nature in Canada. The Doctrine of Legitimate Expectations has also been indirectly referred to by the Supreme Court in Suresh. The Court stressed that [i]t is only reasonable that the same executive that bound itself to the [Convention Against Torture] intends to act in accordance with the CAT’s plain meaning. Given Canada’s commitment to the CAT, we find that the appellant had the right to procedural safeguards, at the s. 53(1)(b) stage of the proceedings. More particularly, the phrase “substantial grounds” raises a duty to afford an opportunity to demonstrate and defend those grounds.104 According to one commentator, this ruling constituted a clear application of the Doctrine of Legitimate Expectations.105 Whether or not that reading is correct is irrelevant for the purposes of this article. What is important is the doctrine’s impact on the judicial process in Canada. The cases following Suresh do not support the argument that the Doctrine of Legitimate Expectations may change the effect of unincorporated human rights treaties in Canadian judicial practice. In Ahani(CA),106 for example, while the appellant could have expected to benefit from a suspension of the deportation process until the Human Rights Committee had rendered a decision regarding his request challenging the deportation order issued against him, the Ontario Court of Appeal dismissed the appeal in sharp contradiction to Canada’s international obligations under the International Covenant on Civil and Political Rights107 and its Protocol.108 After having held that Canada had never incorporated either the Covenant on Civil and Political Rights nor the Protocol into domestic law, the Court went on to emphasize that giving effect to Ahani’s argument would lead to an “untenable result” by converting a non-binding request “into a binding obligation enforceable in Canada by a Canadian court … .”109 Arguably, the decision in Ahani (CA) constitutes a narrow view of the implementation process of treaty obligations in domestic law. This led one commentator to argue that Canada was acting in bad faith.110 This decision completely ignored the fact that the Charter was based on international human rights instruments, albeit not expressly purporting to implement these international authorities. As the Court of Appeal has rightly held in other circumstances, one must not presume that Parliament did not implement a 104 Supra note 20 at para 119. 105 Provost, supra note 70 at 160. 106 Supra note 22. 107 Supra note 24. 108 Optional Protocol to the International Covenant on Civil and Political Rights, 16 December 1976, 999 UNTS 171 (entered into force 23 March 1976) [Protocol]. 109 Supra note 22 at para 33. 110 See Harrington, “Punting Terrorists”, supra note 23. 46 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts given international instrument “merely because it does not say expressly that it is intending to observe it.”111 Despite the fact that, in his dissenting opinion, Rosenberg JA indirectly referred to the Doctrine of Legitimate Expectations,112 nothing seems to indicate that this doctrine will improve the situation of unincorporated treaties in Canada in the future. At best, it is held by some researchers that the current approach of employing the Doctrine of Legitimate Expectations in analyzing the domestic legal effects of ratified and unincorporated treaties produces results that should be of “influential authority” – a position somewhere between “persuasive authority” and “binding authority”.113 Consideration of the significance of unincorporated treaties in domestic law remains an option rather than an obligation. On the one hand, this situation may lead to the breach of Canada’s international obligations when those human rights treaties urge signatory states to adopt legislative measures in order to fully implement their terms. On the other hand, at the domestic level, the treaty-based human rights of Canadians citizens and residents may be frustrated as they cannot be enforced in Canadian courts. To summarize, the current situation of unincorporated treaties in Canada remains fraught with many uncertainties. When rules carry with them such uncertainty, they are also unpredictable, which is inconsistent with the rule of law. As the Supreme Court noted, the rule of law consists of “subjection to known legal rules.”114 It provides a shield for individuals from arbitrary state action since it “vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs.”115 Canadian citizens and residents need to better organize their lives and plan for their future (including the planning for resolutions of possible disputes with administrative agencies) in a way that is more secure and predictable. 111 Salomon, supra note 74 at 144. 112 See Ahani (CA), supra note 22 at para 93 (“[t]he appellant does not claim that the views of the Committee about our process for removing him would create legal rights that could be enforced in a domestic court. He claims only the limited procedural right to reasonable access to the Committee, upon which the federal government has conferred jurisdiction. He submits that the government, having held out this right of review, however limited and non-binding, should not be entitled to render it practically illusory by returning him to Iran before he has had a reasonable opportunity to access it. I agree with that submission and that it is a principle of fundamental justice that individuals in Canada have fair access to the process in the Protocol. By deporting the appellant to Iran, the government will deprive the appellant of this opportunity” [emphasis added]). 113 Mayo Moran, “Authority, Influence and Persuasion:Baker , Charter Values and the Puzzle of Method” in Dyzenhaus, supra note 52, 389 at 409-12. 114 Reference re Secession of Quebec, [1998] 2 SCR 217 at para 70, 161 DLR (4th) 385. 115 Ibid. Manirabona & Crépeau, Enhancing Implementation of Human Rights Treaties n 47 Since the end of the Cold War, an increasing number of international human rights agreements have been ratified by states. Consequently, a considerable number of private actors are deemed to benefit directly from human rights treaties to which their home states are parties. Still, on a domestic level, private actors cannot base their claims on human rights treaties which are unincorporated in Canadian law, despite their ratification. Yet, individuals are often expected to bring their potential claims before domestic courts due to the costs of international adjudication. This justifies our proposal to create a national body that would monitor the genuine incorporation of international human rights treaties ratified by Canada into domestic laws and to provide adequate access to justice for Canadians citizens and residents at home. The incorporation of human rights treaties into domestic laws would also reduce the detrimental effects caused by the unpredictability of the various judicial interpretations of unimplemented treaties. III. A Case for Establishing a Monitoring Body to Enhance the Human Rights Treaty Incorporation Process in Domestic Law To date, there is no official body designed to monitor the national implementation of Canada’s international treaty commitments. The only existing mechanism is the 1975 Federal-Provincial-Territorial Continuing Committee of Officials with respect to the ratification and the implementation of human rights treaties. However, as that body’s main role consists of maintaining consultation and collaboration among governments in Canada,116 the Continuing Committee does not have the requisite power to influence federal government policy with respect to the domestic implementation of international human rights instruments. In addition, to the extent that human rights issues are often coloured ideologically, the work of the Continuing Committee may be perceived as partial and biased as this Committee is made up of government officials. In 2001, the Senate Standing Committee on Human Rights summarized some significant limitations of the Continuing Committee: The Continuing Committee of Officials meets behind closed doors and does not have any policy or decision-making authority. The responsible ministers have not met in some thirteen years. None of the governments is held accountable for its human rights performance, and there is no public scrutiny or input. As the situation with regard to the recent Waldman decision against Canada by the United Nations Human 116 House of Commons, Government Response to the Report of the House of Commons Standing Committee on Foreign Affairs and International Development: Canada’s Universal Periodic Review and Beyond: Upholding Canada’s International Reputation as a Global Leader in the Field of Human Rights (28 February 2011), online: Parliament of Canada Rights Committee has demonstrated, there is certainly no mechanism for pressuring either level of government to live up to its commitments. While non-governmental organizations have, in recent years, been consulted during the preparation of Canada’s reports to the treaty bodies, this is not a transparent process to which the general public has access. The Continuing Committee offers no opportunity for any public debate or follow-up to the observations, findings, and recommendations of the treaty bodies – nor was such a role ever intended for it.117 In a recent report, the Subcommittee of the House of Commons Standing Committee on Foreign Affairs and International Development also mentioned that “the Continuing Committee is comprised of ‘mid-level officials who generally have no decision-making authority with respect to human rights issues which are often complex and politically charged.’”118 It added that “‘the Continuing Committee carries out all its work in absolute and total secrecy, declining and refusing to even release its agenda to the public.’”119 Enhancing the implementation of international human rights treaties in Canadian law requires a comprehensive, independent and credible national body that is specifically designed to ensure genuine and impartial fulfilment of Canada’s international human rights obligations. An independent monitoring body also would ensure the participation of the provinces and territories as well as Canadian public and civil society groups in the process of implementing Canada’s human rights treaties. For example, this body may propose financial compensation schemes flowing from the federal government to the provinces when human rights treaty obligations require provincial action for performance. The following section proposes the creation of a domestic body for monitoring the implementation of human rights treaties in Canada; the proposal will suggest various models of bodies. There are certainly many forms of monitoring bodies; however, this article will focus on only three of them: an ombudsperson, a Commissioner in the Office of the Auditor General and a Parliamentary Standing Committee. A. An Ombudsperson for International Human Rights Treaties The ombudsperson is classically considered as “a public sector office established by the legislative branch of government to monitor and regulate 117 Senate, Standing Committee on Human Rights, Promises to Keep: Implementing Canada’s Human Rights Obligations (December 2001) (Chair: Raynell Andreychuk), online: Parliament of Canada the administrative activities of the executive branch”.120 More precisely, the ombudsperson’s role is to remedy citizens’ grievances against administrative agencies by receiving complaints and making non-binding recommendations.121 Since its origin in Sweden, the institution of ombudsperson has undergone many changes in order to contend with the specific problems encountered by members of the national community of a given state. Today, many varieties of ombudsperson exist and the variety created for a given state depends upon the political, legal, socio-economic and cultural aspects of the state in question.122 Nevertheless, it is still possible to recognize some common elements of the ombudsperson institution that have persisted since its inception in Sweden, through a multitude of state apparatuses today. Generally speaking, the ombudsperson was originally placed to be Parliament’s overseer of the administration. To that end, the ombudsperson functioned by investigating complaints of maladministration on behalf of aggrieved citizens and then making a recommendation as to corrective steps to be taken by the competent government officials and/or department.123 The rationale is that bureaucratic power must have some oversight in order to avoid becoming a source of the self-destruction of democracy and its values.124 Given the exponential increase in both quantity and quality of government intrusion into the lives of its citizens, the legislative and executive branches of government, as well as the courts, are neither completely suited nor entirely capable of providing the required supervision over the entire system.125 Due to the fact that the litigation process before the courts can be costly and slow, the ombudsperson is the best mechanism for acting as a check for administrative abuse.126 According to Rowat, “[i]n this age of the welfare state, thousands of administrative decisions are made each year by governments or their agencies, 120 Linda C Reif, “Introduction” in Linda C Reif, ed, The International Ombudsman Anthology (The Hague: Kluwer Law International, 1999) xxiii at xxiii. 121 Donald C Rowat, “The Dilution and Distortion of the Ombudsman Concept” in Dimitrios Argyriades, OP Dwivedi & Joseph G Jabbra, eds, Public Administration in Transition; A Fifty-Year Trajectory Worldwide: Essays in Honor of Gerald E Caiden (Portland, OR: Vallentine Mitchell, 2007) 238 at 239. 122 See Mary A Marshall and Linda C Reif, “The Ombudsman: Maladministration and Alternative Dispute Resolution” (1995) 34:1 Alta L Rev 215 at 225-26. 123 British Columbia Development Corporation v Friedmann (Ombudsman), [1984] 2 SCR 447 at 458, 14 DLR (4th) 129 [Friedmann]. In this way, s 2 of the Ombudsman Act, RSO 1990, c O.6 [Ontario Ombudsman Act], provides that “[t]here shall be appointed, as an officer of the Legislature, an Ombudsman to exercise the powers and perform the duties prescribed by this Act.” 124 Friedmann, ibid at 459. 125 Ibid at 459-60. 126 Ibid at 460. 50 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts many of them by lowly officials; and if some of these decisions are arbitrary or unjustified, there is no easy way for the ordinary citizen to gain redress.”127 The general function of an ombudsperson has been summarized by the Supreme Court of Canada as follows: The Ombudsman represents society’s response to these problems of potential abuse and of supervision. His unique characteristics render him capable of addressing many of the concerns left untouched by the traditional bureaucratic control devices. He is impartial. His services are free and available to all. Because he often operates informally, his investigations do not impede the normal processes of government. Most importantly, his powers of investigation can bring to light cases of bureaucratic maladministration that would otherwise pass unnoticed. The Ombudsman “can bring the lamp of scrutiny to otherwise dark places, even over the resistance of those who would draw the blinds” … . [H]e may find the complaint groundless, not a rare occurrence, in which event his impartial and independent report, absolving the public authority, may well serve to enhance the morale and restore the self-confidence of the public employees impugned. In short, the powers granted to the Ombudsman allow him to address administrative problems that the courts, the legislature and the executive cannot effectively resolve.128 The impartiality of the ombudsperson stems mainly from his or her status as an appointee of the legislative branch of government. For instance, the Public Protector Act of Québec provides that “[o]n motion by the Prime Minister, the National Assembly shall appoint a person called the ‘Public Protector’ and fix his [or her] salary.”129 In some countries, the ombudsperson is appointed pursuant to a constitutional provision. This ensures the ombudsperson’s permanency, neutrality and independence from the executive and administrative branches.130 As such, the ombudsperson is prohibited from holding paid public office positions131 and cannot attend Legislative Assembly nor hold any other employment position.132 Until the end of his or her mandate (5 years in Québec, 10 years in New Brunswick), the ombudsperson cannot be removed from the position by the executive branch except, in some rare cases, under a stringent procedure.133 It is also provided that the ombudsperson appoints all of his servants and employees 127 Donald C Rowat, “An Ombudsman Scheme for Canada” (1962) 28:4 Can J Econ Polit Sci 543 at 543 [citations omitted]. 128 Friedmann, supra note 123 at 461 [citations omitted]. 129 Public Protector Act, RSQ c P-32, s 1. In some Canadian provinces, the ombudsperson is paid like judges. See e.g. Ombudsman Act, RSNB 1973, c O-5, s 2(4). 130 Judge Anand Satyanand, “The Ombudsman Concept and Human Rights Protection” (1999) 29:1 VUWLR 19 at 21 [citations omitted]. 131 Marshall & Reif, supra note 122 at 218. 132 Ontario Ombudsman Act, supra note 123, s 5(1) (“[t]he Ombudsman shall devote himself or herself exclusively to the duties of the Ombudsman’s office and shall not hold any other office under the Crown or engage in any other employment”). See also Marshall & Reif, ibid. 133 Public Protector Act, supra note 129, s 3. The dismissal requires a resolution of the National Assembly approved by two-thirds of its members. Manirabona & Crépeau, Enhancing Implementation of Human Rights Treaties n 51 and defines their duties.134 Members of the ombudsperson’s staff cannot be dismissed without the recommendation of the ombudsperson to whom they are answerable.135 The ombudsperson’s work, including investigations of nearly all government agencies, is conducted in a private manner.136 During their appointment, all members of the staff of the ombudsperson’s office are vested with “the powers and immunity of commissioners appointed under the Act respecting public inquiry commissions… except the power to impose imprisonment.”137 There is no doubt that Canadian citizens may suffer as a result of the human rights treaties which remain unincorporated in domestic laws. The ombudsperson for human rights treaty affairs could aptly foster the implementation of such international treaties. This could be done on his or her own initiative, at the request of any person, group of persons acting on their own behalf or on behalf of another person.138 Where no satisfactory corrective measures have been taken and provided within a reasonable timeframe, the ombudsperson may refer the case to the legislative branch.139 Ultimately, as the Supreme Court noted, usually it is the case that the ombudsperson cannot enforce resolutions – rather, he or she is vested only with powers of investigation and persuasion for the purposes of encouraging effective change.140 Although the ombudsperson’s decisions do not have legally- binding effect,141 the ombudsperson can be influential in significant ways. For instance, he or she may participate in legislative draft proposals or report to the media on the progress and pitfalls of a case. Where Parliament is responsible for the failure to implement a human rights treaty on a domestic level, one might suggest that the ombudsperson’s work would be of little importance insofar as that office’s jurisdiction does not generally comprise the activities of the legislative branch.142 Still, it must be remembered that the institution of the ombudsperson has outgrown its traditional role. The ombudsperson institution nowadays may match the 134 Ibid, ss 11-12. 135 Ibid, s 11. 136 Ibid, s 24. 137 Ibid, s 25. 138 Ibid, s 13. 139 Ibid, s 27. 140 See Friedmann, supra note 123 at 462. 141 Ann Abraham, “The Ombudsman and Individual Rights” (2008) 61:2 Parliam Aff 370 at 375. 142 Friedmann, supra note 123 at 474. However, it is not unlikely that such a government agency could provide the necessary information relating to a complaint even if it is out of the jurisdiction of the ombudsperson. See Eugene Biganovsky, “The Experiences of the South Australian Ombudsman: ‘Policy – Administration – Jurisdiction of the Ombudsman’” in Reif, supra note 120, 455 at 458. 52 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts particular political and cultural needs of each state.143 One salient example is that, in several countries, ombudspersons are vested with the powers to ensure that legislation concerning the protection of human rights is enforced.144 In Norway, the Children’s Ombudsperson can alert a Cabinet member, Parliament members or top-level officials of any case or problem if allowing an issue to reach the uppermost level of consideration may be effective.145 Moreover, in the same country, “[o]pinions and statements may also be distributed widely to the mass media, irrespective of political consent, informing the public and creating difficulties for politicians and decision- makers wishing to disregard the interest of children.”146 The Norwegian Children’s Ombudsperson can participate in drafting regulations concerning the well-being of children.147 In Poland, the ombudsperson has the power to submit his or her own proposals for legislative change in order to ensure that the rights and freedom of citizens are better protected.148 He or she can also go directly to an appropriate tribunal to look for the implementation of the recommendation.149 In Sweden, the Equality Ombudsman shall, among other things, “propose legislative amendments or other anti-discrimination measures to the Government and initiate other appropriate measures.”150 In New South Wales, Australia, the ombudsperson can seek interim injunctions before the Supreme Court in order to restrain administrative action.151 In several African jurisdictions, human rights ombudspersons can go to court to enforce their recommendations.152 In Spain and Portugal, human rights ombudspersons can request a judicial examination of the constitutionality of a given piece of legislation, regardless of whether or not it stems from a filed 143 See Gary B Melton, “Lessons from Norway: The Children’s Ombudsman as a Voice for Children” (1991) 23:2 Case W Res J Int’l L 197 at 222-33; Ann Abraham, “The Future in International Perspective: The Ombudsman as Agent of Rights, Justice and Democracy” (2008) 61:4 Parliam Aff 681 at 682-686 [Abraham, “Ombudsman as Agent”]. 144 Marshall & Reif, supra note 122 at 231. 145 Målfrid Grude Flekkøy, “The Norwegian Ombudsman Experience” (Paper delivered at the meeting of the International Catholic Child Bureau, September 1989) at 5-6, cited in Melton, supra note 143 at 213. 146 Ibid. 147 See Melton, supra note 143 at 216. 148 Colin T Reid, “The Polish Ombudsman” (1988) 14:3 Rev Socialist L 255 at 256. 149 Ewa Letowska, “The Polish Ombudsman (The Commissioner for the Protection of Civil Rights)” (1990) 39:1 ICLQ 206 at 207-08; Ewa Letowska, “The Ombudsman and Basic Rights” (1995) 4:1 E Eur Const Rev 63 at 63-64. 150 Sweden, Act concerning the Equality Ombudsman (SFS 2008:568), s 3, online: Government Offices of Sweden complaint.153 In Finland and Sweden, the ombudsperson can even prosecute state officials.154 In short, the ombudsperson’s power largely stems from the legislation creating the ombudsperson institution. In many countries, it is characterized by “its adaptability and diversity, its ability to evolve to suit its changing environment.”155 Although there is no nationally available ombudsperson institution at the federal level in Canada, some “single-purpose” federal institutions are closer to the traditional ombudsperson model. The Commissioner of Official Languages, the Privacy Commissioner, the Information Commissioner, the Federal Correctional Investigator, the Royal Canadian Mounted Police (R.C.M.P.) External Review Committee, as well as the Police Complaints Commissioner, can all be considered examples of ombudsperson-like institutions.156 One can therefore conclude that there is no reason why Canada cannot create an Ombudsperson for Human Rights Treaty Affairs. The ombudsperson may be appointed with a broad mandate to conduct investigations in relation to Canada’s international treaty obligations and to take necessary measures to ensure that those human rights treaties are properly incorporated into domestic law. Alternatively, if an ombudsperson for human rights treaty affairs is not the preferred option, we suggest the creation of the post of Commissioner for Human Rights Treaty Affairs within the office of the Auditor General. B. A Commissioner for Human Rights Treaties Under the Supervision of the Auditor General The Auditor General of Canada’s primary duty is to conduct independent audits of federal government activities for the purpose of providing “fact-based information that Parliament needs [in order] to fulfill one of its most important roles: holding the federal government accountable for its stewardship of public funds.”157 More precisely, the Office of the Auditor General audits departments and agencies, Crown corporations and many other federal organizations, as well as the territorial governments of Nunavut, the Yukon and the Northwest Territories.158 Following a request from the Governor-in-Council, the Auditor General may also “inquire into and report on any person or organization that 153 Ibid at 88. 154 Ibid at 61, n 26. 155 Abraham, “Ombudsman as Agent”, supra note 143 at 688-89. 156 See Marshall & Reif, supra note 123 at 231, n 81. 157 Office of the Auditor General of Canada, “Welcome to the Office of the Auditor General of Canada” (13 December 2011), online: Office of the Auditor General of Canada 159 Auditor General Act, RSC 1985, c A-17, s 11. 160 Ibid, s 13(1). 161 Ibid, s 13(4). 162 Ibid. 163 Ibid, ss 3(1), 7, 13, 15-16, 18-19. 164 Ibid, s 4(1). 165 Ibid, s 19(1). 166 Ibid, s 19(2). Manirabona & Crépeau, Enhancing Implementation of Human Rights Treaties n 55 In order to guarantee independence, the Auditor General is provided with a workforce of officers and employees that are essential to enabling the proper performance of his or her duties.167 He or she may station any person employed by the office within any federal department.168 Furthermore, the Auditor General is authorized to determine the terms and conditions of employment for his or her employees and is responsible for employer-employee relations.169 The Auditor General’s annual or casual reports are submitted directly to the House of Commons through the Speaker.170 Each report calls attention to any matter that the Auditor General considers to be of significance.171 The report generally provides members of Parliament and the media with information enabling them to scrutinize and criticize the activities of the government so that it might be held accountable. In terms of legal immunities, the Auditor General has all of the necessary immunities against any judicial proceedings resulting from any action taken, reported, or said in good faith, in the course of the performance of his or her function.172 It is evident that such a legal environment protects the Auditor General against any apparent bias in favour of the executive branch of the government. It has been said that the contemporary position of the Auditor General is “alongside and sometimes apparently above government”.173 Thus, if a monitoring body similar to the Auditor General were created with an evaluative focus on human rights treaties ratified by Canada, it could significantly enhance the domestic implementation process of Canada’s international obligations. Perhaps a more realistic option would be to amend the Auditor General Act so as to enable the appointment of a senior officer who might be called the “Commissioner for Human Rights Treaties.” The same post already exists for the purposes of handling environmental matters, namely the Commissioner of the Environment and Sustainable Development.174 Similar to the latter, the Commissioner for Human Rights Treaty Affairs would report directly to the Auditor General. The amendment of the Auditor General Act would enumerate the new duties of the Auditor 167 Ibid, s 15(1). 168 Ibid, s 13(2). 169 Ibid, s 16. 170 Ibid, s 7(1). 171 Ibid, s 7(2). 172 Ibid, s 18.1. 173 SL Sutherland, The Office of the Auditor General of Canada: Government in Exile?, School of Policy Studies, Working Paper 31 (September 2002) [unpublished] at 2, online: Queen’s University General, as they pertain to the Commissioner and his or her function. The main role of the Commissioner could be to ensure that legislation properly complies with the international human rights commitments of Canada. More precisely, the Commissioner’s role would consist, among other things, in preparing legislative proposals designed to foster the adoption of implementing legislation by Parliament. Besides the elaboration of those bills to be studied by Parliament, a Commissioner for Human Rights Treaties would receive petitions concerning international human rights treaty matters and forward them to the government. As well, the Commissioner could raise public awareness of issues relating to unincorporated human rights treaties, by way of annual or casual reports submitted to Parliament. Nevertheless, despite the fact that reports from the Auditor General are generally unbiased and that some of his or her recommendations are in fact addressed,175 one might prefer the oversight of a political body in order to ensure a politically driven follow-up of recommendations concerning unincorporated treaties. C. A Parliamentary Committee for International Human Rights Treaties In Canada, like in other Westminster-style democracies, Parliament is regarded as the real “democratic nucleus,” as it happens to be the only branch of government which is “chosen by and responsible to the people.”176 Alongside the traditional role of legislation making, Parliament’s main function is to scrutinize the government’s actions in order to ensure that public affairs are managed pursuant to the will of the people. Since Confederation, the House of Commons has been divided into standing committees.177 Presently, the House of Commons is comprised of more than twenty standing or special Committees, generally with a dozen members within each,178 as well as two Joint Committees: the Standing Joint Committee on the Library of Parliament and the Standing Joint Committee on the Scrutiny of Regulations.179 175 See Auditor General of Canada, “Citizenship and Immigration Canada: The Economic Component of the Canadian Immigration Program” in A Status Report of the Auditor General of Canada: May 2003 (Ottawa: Minister of Public Works and Government Services Canada, 2003), online: Office of the Auditor General of Canada With regard to their mandate, the Committees are “empowered to study and report on all matters relating to the mandate, management and operation of the department or departments of government which are assigned to them….”180 Specifically, the Committees are empowered, inter alia, to review and report on the programs and policy objectives of a given department, as well as on its effectiveness. The Committees are also empowered to conduct an analysis of the relative success of the department compared with the stated objectives.181 Furthermore, the government may be required to table a comprehensive response to the report of the Committees within 120 days of its presentation.182 The ability of the Committees to “publicly examine issues and place information before the public and media”, as well as the ability to influence government policy, constitutes their main contributions towards real government accountability.183 A House of Commons committee on international human rights treaty affairs could significantly change the Canadian practice in this area. In their capacity as politicians, the members of a proposed Committee on Human Rights Treaty Affairs could foster the implementation of Canada’s international obligations through inquiries and recommendations. Of course, there is a Subcommittee of the House of Commons in charge of International Human Rights within the Standing Committee on Foreign Affairs and International Development. But this subcommittee deals with human rights issues in a broader sense without focusing exclusively on requisite mechanisms for the effective incorporation of human rights treaties in Canadian law. Finally, the realistic option would be to create a House of Commons Committee on Human Rights Affairs which is made of subcommittees including an exclusive subcommittee on Human Rights Treaty Affairs. The establishment of a such Committee would be of great importance, especially with regard to the legitimacy of potential proposals for financial compensation schemes that would ensure the full implementation of human rights treaties when the subject matter of a treaty falls, in whole or in part, under provincial or territorial jurisdiction. 180 Ibid, s 108(2). 181 Ibid, ss 108(2)(b), 108(2)(d). 182 Ibid, s 109. 183 Jonathan Malloy, “An Auditor’s Best Friend?: Standing Committees on Public Accounts” (2004) 47:2 Can Pub Adm 165 at 181; See also Bonnie Brown, Nancy Miller Chenier & Sonya Norris, “Les comités en tant qu’agents de la politique publique: le Comité permanent de la santé” (2003) 26:3 Rev Parlem Can 4; Manon Tremblay & Stephanie Mullen, “Le Comité permanent de la condition féminine de la Chambre des communes du Canada: un outil au service de la représentation politique des femmes?” (2007) 40:3 CJPS 615; Shawn Murphy, “The Appearance of Accounting Officers Before the Public Accounts Committee” (2007) 30:2 Can Parliam Rev 4. 58 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts IV. Conclusion This article has presented arguments for the creation of a monitoring body designed to ensure the domestic incorporation into Canadian law of international human rights treaty obligations. There are several forms that such a monitoring body could take, including: the form of an Ombudsperson for human rights treaty affairs, or that of a Commissioner for Human Rights Treaty Affairs under the supervision of the Auditor General, or that of a House of Commons’ Standing Committee on Human Rights Treaty Affairs. Unincorporated human rights treaties cannot confer rights on Canadians and do not impose duties upon the state nor private persons on a domestic level. As human rights treaties are generally intended to protect individuals’ rights, their implementation into domestic law constitutes a pressing need that is necessary to ensure the consistent application of the rule of law. This would provide citizens with a convenient and meaningful method of access to justice in cases of infringement of human rights, as they are set out by the ratified treaties. The lack of such access to justice is quite opposite to the liberal approach and democratic governance of Canada.184 In contrast with ideas put forth by some commentators,185 it is clear that Canada cannot afford to be content with unpredictable outcomes when it comes to human rights adjudications. Unpredictable results arise when the courts employ uncertain legal principles, including the Presumption of Conformity and the Doctrine of Legitimate Expectations, in an effort to assess the scope of international human rights obligations at a domestic level. Accordingly, the establishment of a body dedicated to monitoring human rights treaty implementation in domestic law is essential in order to ensure that all individuals in Canada have meaningful access to the full complement of human rights as they are set out in human rights treaties. An independent body has more strategies to foster the incorporation of human rights treaties in Canadian law than any other national mechanism concerned with the issue. An argument can be made that if Canada consents to be bound to a treaty whose obligations reflect existing Canadian law, no new incorporation legislation is needed. For example, one may hold that Canada does not need to pass a law to implement a new treaty that calls for an end to discrimination on a particular ground since Canadian law already prohibits such discrimination (through the Charter and for the private sector, through the federal, provincial and territorial anti-discrimination acts). Yet, Ahani and Suresh have shown that such incorporating legislation is needed in order to give Canadian citizens 184 Makau wa Mutua, “The Ideology of Human Rights” (1996) 36:3 Va J Int’l L 589. 185 See Karen Knop, “Here and There: International Law in Domestic Courts” (2000) 32:2 NYUJ Int’l L & Pol 501. Manirabona & Crépeau, Enhancing Implementation of Human Rights Treaties n 59 all available remedies at the national and international level. It would be unrealistic to think that the rulings in these two cases were isolated incidents. 60 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts Concepts and Precepts: Canadian Tribunals, Human Rights and Falun Gong David Matas1 & Maria Cheung2 This article analyzes five Canadian tribunal cases brought forward by Falun Gong practitioners against their perpetrators. Falun Gong is a peaceful spiritually based meditative practice highly persecuted and propagandized against by the Chinese Communist Party. The human rights atrocities faced by Falun Gong practitioners have justified the concern of the international community since the persecution in China in 1999. The persecution of Falun Gong initiated in China has also impacted Canada, as discrimination and marginalization of the community are brought into local Canadian contexts. In examining the five tribunal cases, the authors find the Canadian tribunals have failed to come to grips with a global persecutory campaign emanating from a foreign repressive state. The Canadian legal system needs to be aware of the global scope of persecution against vulnerable groups like Falun Gong, in order to elicit more responsive action to international human rights justice issues. Les auteurs analysent cinq causes canadiennes apportées par les pratiquants du Falun Gong contre leurs persécuteurs. Le Falun Gong est une pratique méditative pacifique et spirituelle sujette à une propagande négative diffusée par le Parti communiste chinois qui persécute les adeptes du Falun Gong. Les violations des droits de la personne auxquelles font face les pratiquants du Falun Gong ont soulevé les inquiétudes de la communauté internationale depuis leur persécution en Chine en 1999. La persécution du Falun Gong initiée en Chine a aussi eu un impact au Canada puisque la discrimination et la marginalisation de cette communauté se manifestent localement. Les auteurs concluent que les tribunaux canadiens n’ont pas suffisamment réagi à cette campagne de persécution globale lancée par un état répressif étranger. Le système légal canadien doit prendre connaissance de la portée globale de la persécution envers des groupes vulnérables tels que le Falun Gong, afin de répondre adéquatement aux questions internationales impliquant les droits de la personne. 1 David Matas teaches Immigration & Refugee Law at Robson Hall Faculty of Law, University of Manitoba. He was nominated for the 2010 Nobel Peace Prize for his work on the harvesting of organs from Falun Gong members by the Chinese government. 2 Maria Cheung is an Associate Professor of Social Work at the University of Manitoba. Both authors wish to acknowledge the efficient work of their Research Assistant, Judith Cheung. 62 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts I. Introduction rom its onset in 1999, the Chinese Communist Party’s (CCP) persecution of the spiritually- based meditative practice of Falun Gong has justified Fthe concern from the international community. The CCP has, through the Chinese government, implemented a global persecutory campaign against Falun Gong practitioners, yet Canadian tribunals have failed to come to grips with this campaign when addressing human rights issues in Canada. The absence of the rule of law and the oppression of human rights make it impossible for those who have suffered from unlawful incarceration and torture to seek redress within China. Some Falun Gong practitioners who came to Canada as immigrants, or as refugees in the post‑1999 period, have sought justice for the atrocities inflicted upon them. The dominant CCP discourse of demonization and defamation of Falun Gong is replicated in Canada by mainstream Chinese‑Canadian media. There are those who have acted upon this discourse and thus have engaged in discriminatory behaviour against Falun Gong practitioners. These practitioners, in response, have brought complaints before Canadian human rights tribunals and Canadian courts. The authors of this article critically analyze five Canadian tribunal proceedings initiated by Falun Gong practitioners against various officials of the CCP and others who have discriminated against the Falun Gong community in Canada. The first two proceedings, the Jiang Zemin3 and Bo Xilai4 cases, illustrate the CCP’s extrajudicial apparatus that is employed to persecute Falun Gong. This apparatus can be traced to the top leadership of the CCP. The third and fourth proceedings, the Alberta Consulate5 and Crescent Chau6 cases, illustrate how the oppression of Falun Gong extends to Canada through replication of the CCP’s discriminatory discourse, which consists of demonizing and defaming both the practice of Falun Gong itself as well as its practitioners. The final proceeding, the Chinese Seniors Association7 case, exemplifies the discrimination faced by Falun Gong practitioners in Canada on the basis of their beliefs. 3 Zhang v Jiang (2006), ONSC No 04-CV-278915CM2 [Jiang Zemin]. 4 Jin v Bo (2010), ONCA No C52398 [Bo Xilai]. 5 Chen v Attorney General of Alberta, 2007 ABQB 267, 66 Admin LR (4th) 100 [Alberta Consulate case]. 6 Zhang v Chau, 2008 QCCA 961, [2008] R.R.A. 523 [Crescent Chau case]. 7 Huang v 1233065 Ontario (2011), CHRR Doc. 11-1325, 2011 HRTO 825 [the Chinese Senior’s Association case]. Matas & Cheung, Canadian Tribunals, Human Rights and Falun Gong n 63 Protection against discrimination and coercion on the basis of one’s beliefs is a fundamental human right.8 Canada prides itself in upholding global justice. The Falun Gong cases have revealed gaps in the judicial system in dealing effectively with oppression that is systematically instigated by a foreign state. The Canadian legal system has so far failed to show awareness of the global scope of the CCP’s persecution against the Falun Gong. In order to deal effectively with the CCP’s persecution of Falun Gong practitioners in Canada, Canadian tribunals need to appreciate the nature of the persecution as well as how such persecution has a local impact within Canadian jurisdictions. By achieving this awareness the Canadian legal system will not only ensure a more effective adjudication of the discrimination issues within Canada, but it will also send a message to the global community that there must be accountability for the mass atrocities committed against the Falun Gong throughout the world. II. Background A. What is Falun Gong? Falun Gong (also known as Falun Dafa) is a spiritual cultivation discipline that facilitates the transcendence of body, mind, and spirit. Accompanied by five gentle meditative exercises, practitioners uphold the principles of truthfulness, compassion, and forbearance.9 Rooted in ancient Buddhist and Taoist philosophies, Falun Gong was founded by Li Hong Zhi, who began the teaching in 1992. Practitioners attempt to raise their moral character by practicing Falun Gong’s three basic above-mentioned principles in their daily lives. As a result, over time they attain improved health and a state of inner peace.10 Western scholars regard Falun Gong as a new religious movement, though practitioners are only loosely organized.11 Falun Gong practitioners do not have a political agenda.12 Once the persecution began in 1999, many practitioners 8 Bryan Edelman & James T Richardson, “Imposed Limitations on Freedom of Religion in China and the Margin of Appreciation Doctrine: A Legal Analysis of the Crackdown on the Falun Gong and Other ‘Evil Cults’” (2005) 47:2 J of Church and State 243 at 248. 9 “Overview of Falun Gong” (30 April 2008), online: Falun Dafa Information Centre. & Stacy Mosher, eds, Challenging China: Struggle and Hope in an Era of Change, (New York: New Press in conjunction with Human Rights in China, 2007) 226. 13 Since the persecution took place in 1999, Falun Gong practitioners established the Clearwisdom website to document cases made known to them through secured internet ways released from practitioners in China, online: Falun Dafa Clearwisdom.net 18 Ownby, supra note 11 at 127. See also ch 2, on “redemptive societies” in Chinese history. 19 James W Tong, Revenge of the Forbidden City: The Suppression of the Falun Gong in China, 1999‑2005 (New York: Oxford University Press, 2009) at 29. 20 Ibid. 21 Chang, supra note 11 at 29. 22 Ibid at 5. 23 Ownby, supra note 9 at 170. 24 Chang, supra note 11 at 10. 25 Ownby, supra note 11 at 170 & 221. Ownby explained the perceived definition of ‘political’ in mainland China, and the Falun Gong practitioners were merely demanding proper respect for their practice in their peaceful appeals. 26 Supra note 4 (Affidavit of Clive Ansley at para 51). See also Sujian Guo, “The Party-State Relationship in Post-Mao China” (2001) 37:3 China Report 301; Bruce J Dickson, “The Future of China’s Party-State” (2007) 106:701 Current History 243. 66 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts have been consistent since its origin in 199227 and the founder of Falun Gong, Li Hongzhi, denounced Falun Gong practitioners’ involvement in a political movement prior to the persecution.28 After the persecution of Falun Gong in China, he stated explicitly in his writings that “[the] cultivator’s motive is to stop the persecution, and not to “get political” for the sake of gaining human political power”.29 In response to the massive human rights violations, Falun Gong practitioners within and outside of China use a variety of means, including the setup of media networks and the invention of software to break through the internet blockage and censorship, in order to ensure that first-hand information concerning the persecution of Falun Gong is communicated to the outside world.30 For example, the Epoch Times recently completed a structural analysis detailing the nature and history of the CCP which was published in a book entitled, “Nine Commentaries On The Communist Party”.31 The purpose of the analysis was to expose, among other things, the persistent persecutory mechanisms of the CCP that have been utilised to enforce the CCP’s rule of China and are responsible for an estimated 60‑80 million unnatural deaths in campaigns including the Cultural Revolution and the Great Leap Forward. The Nine Commentaries has elicited over 100 million withdrawals from the CCP by Chinese citizens and others around the world who have lived through communism.32 These are examples of the self‑initiated efforts of Falun Gong practitioners around the world to stop the persecution of Falun Gong. Their 27 Li Hongzhi’s book Zhuan Falun, published in 1995 sets out the fundamental precepts of Falun Gong. The same essence of practice had been taught in earlier lectures which he had delivered. 28 Li Hongzhi, “‘Cultivation practice is not political’ in Essentials for Further Advancement” (3 September 1996), online: Falun Dafa It is impossible to understand the nature of Falun Gong persecution unless one is aware of the relationship between the CCP and the Government of China. In most cases, conceptually speaking, a political party and the organs of state are different; however, in China, the CCP cannot be separated or distinguished from government.34 The CCP is, formally speaking, only a political party. It is not officially considered to be government or part of the state apparatus;35 however, the CCP enjoys a monopoly of control over the Chinese government and utilizes the government for its purposes, including the oppression of its perceived principal rival, the Falun Gong movement.36 The CCP’s control over the state originates from the parallel structures that it has installed. The organization of the CCP mirrors that of the Chinese government. For every state function there is an instructing CCP official or set of officials. The party structure holds sway over the state structure. The administration of the parallel party and state structures consists of different persons for each department or authority, except for the position at the top; the head of state is also the head of the CCP. Lower down the chain of command of the two parallel structures, state officials have functions within the CCP; however, with the exception of the head of state, state officials do not self-instruct.37 All organizations are subject to the rule of the CCP. 33 Supra note 28. Chipkar aptly notes that “[t]he reason Falun Gong is seen as political is due to the label of ‘political’ being branded on Falun Gong by the CCP in an attempt to alienate and persecute Falun Gong at the start of the persecution. For 60 years, the CCP has been brainwashing Chinese people to believe that if anyone attacks the CCP, or criticizes the CCP, then they are against China and against the Chinese people. This in turn had created hyper‑patriotic Chinese, who turn around and attack anybody whom the Regime labels as political, or anti-China. For example, in China, as Amnesty International tries to bring light to the suffering of Chinese citizens, it is seen as an “anti-China force” by the very people Amnesty International tries to help, because the CCP has labelled it political and anti‑China.” (Personal communication from Joel Chipkar to Maria Cheung, spokesperson for Falun Dafa Association of Canada [nd].) See also WebworldNews, “Falun Gong [Falun Dafa] –Misconceptions –Interview Part 2 of 2” online: youtube Organizations are prohibited if they do not register with, and report to, the relevant governmental authorities. This requirement applies to professional organizations, social clubs, sports clubs, youth groups, religious groups, and any group whose members hold meetings.38 Because of the total control exercised by the CCP over the Chinese government, the party and state are essentially one and the same from a functional point of view. At every level of government it is the CCP officials who hold true power and the government officials merely act under their direction.39 Through control of the state apparatus, the CCP has conducted its anti-human rights agenda, both nationally and internationally.40 For instance, when Jiang Zemin was president of China, he was the head of the party-state chain of command as well as the CCP, and in these capacities he directed, controlled, supervised, authorized and condoned the campaign against Falun Gong practitioners.41 Lower in the chain of command are provincial party and state officials. Bo Xilai, as former head of Liaoning Province, oversaw law enforcement and prison management, the operation of detention facilities and labour camps, and actions of the police and prison officials.42 Under Bo’s direct mastermind, many atrocities occurred.43 C. The 610 Office The CCP created the 610 Office to instruct the state apparatus on the persecution of those who practiced Falun Gong.44 The Office takes its name from the date on which it was formed to prepare for the ban of the practice of Falun Gong in China: June 10, 1999. The 610 Office is an action arm or implementation apparatus of the CCP Political & Judicial Committee and is witness on the Chinese legal system to a number of Canadian and foreign courts and tribunals. 38 Ibid at para 47; B Michael Frolic, “State-Led Civil Society” in Timothy Brook & B Michael Frolic, eds, Civil Society in China, (Armonk, NY: ME Sharpe, 1997) 46 at 57. 39 Guo, supra note 26 at 301; supra note 4, Affidavit of Clive Ansley at para 51. 40 Supra note 4;Chang supra note 11 at 10-16, 125. 41 Supra note 3 (Evidence, Statement of claim at para 21). 42 Supra note 4 (Evidence, FOA at para 34); see the diagram of the chain of command documented by World Organization Investigating the Persecution of Falun Gong (WOIPFG), “Schematic of the “610 Office” Network” (22 Aug. 2004), online: WOIPFG 45 Supra note 3 (Statement of Claim at para 26); WOIPFG, “Investigative Report on the “610 Office” ” (1 February, 2011), online: World Organization Investigating the Persecution of Falun Gong Office is both the embodiment of, and the enabling force behind, a unique form of persecution that, today, exists only in China. The manner in which the persecution is perpetrated is little understood in foreign judicial contexts. Understanding the apparatus of persecution at its source in China is necessary in order to understand how the persecution spreads beyond its borders. D. Persecution of Falun Gong The official People’s Republic of China discourse of the early 1990s supported Falun Gong as a form of qigong, a meditative practice, and endorsed certain aspects of the practice, including qigong’s teachings of understanding and energy healing.51 Falun Gong, the practice of which entails certain physical exercise, was encouraged by the more practical in the CCP because of the cost savings that such an exercise regime generated for the health system.52 Nevertheless, by the mid-1990s, with the considerable growth of the Falun Gong community to 70-100 million practitioners, the ideological guardians of the CCP asserted control.53 Since Falun Gong practitioners had dissolved their formal structure as a registered society in 1996,54 instances of intentional defamation and harassment against Falun Gong and its practitioners were increasingly instigated by state-sanctioned organizations. Examples of this anti-Falun Gong attitude and behaviour included incitement to hatred via the state’s media, the banning of Falun Gong book publication, and harassment of practitioners from 1996 to 1999.55 Dominant CCP discourse changed dramatically following the peaceful appeal of approximately 10,000 Falun Gong practitioners in Beijing who gathered to petition against incipient persecution.56 Although this mass appeal was constitutional and was, in fact, not an organized act, the state-controlled media in China nonetheless identified the event as a political act.57 The CCP banned the practice of Falun Gong on June 10, 1999. Various state organs followed suit in July 1999.58 51 David Ownby, “A History for Falun Gong: Popular Religion and the Chinese State Since the Ming Dynasty” (2003) 6:2 Nova Religio 223. 52 Chang, supra note 11 at 3-4. 53 Supra note 9. 54 Ownby, supra note 11 at 167. 55 “Falun Gong: Timeline” (May 17 2008), online: Falun Dafa Information Centre Since the crackdown on Falun Gong began, the CCP, supported by its single- voice media machinery, has used language such as “evil cult”, “anti-science”, and “undermining national security” to describe Falun Gong.59 Falun Gong has been and is continuing to be demonized and defamed on a national and international scale.60 The CCP and its state‑controlled media use their power to create and dispense “knowledge” that both obscures or denies, for everyone else, the real first-hand interactional knowledge of Falun Gong and its practitioners, and also silences the voices of the practitioners themselves. Falun Gong practitioners are portrayed and objectified by the media in very derogatory terms that alienate them from the larger community. The regime accuses practitioners of Falun Gong of being political and of having ulterior motives when they attempt to convey the reality of their oppression.61 Devious use of language such as ‘evil cult’ plays an important role in this domination of power relations.62 The Falun Gong community is politicized and criminalized by the government, while marginalized and silenced by the general public. The CCP succeeds in an exclusionary persecution by using discursive dividing practices that “involves a system of differentiation” to objectify Falun Gong practitioners by using derogatory descriptions which alienate them from the larger community.63 By portraying Falun Gong as dangerous, the regime undermines public support for the group. Under state‑induced fear, employers, family members, and the community exert pressure on Falun Gong practitioners to give up their practice, even though they can witness its physical and mental benefits. The general public is afraid to talk about Falun Gong; the entire topic has become taboo.64 Since the banning, Falun Gong practitioners have been arrested and told to recant and denounce their beliefs. If they refuse, practitioners are tortured in order to force them to do so. According to a United Nations report, Falun Gong practitioners accounted for two thirds of the victims of torture in China in 2005.65 59 Chang, supra 11, ch 4. In Edelman & Richardson, supra note 8 at 66, the authors postulate that “the Chinese Communist Party has also become more sensitive to international criticisms concerning China’s human rights record. In this context, the anti‑cult movement and its ideology have served as useful tools, helping efforts by the party to try to maintain a delicate balance and create the illusion that the rule‑of‑law has been upheld, even as actions in violation of international customary law are being taken against the Falun Gong.” 60 Chang, supra note 11 at 16-19. 61 Ibid. 62 Ownby, supra note 11 at 176. 63 Michel Foucault, The Archaeology of Knowledge and the Discourse of Language, translated by AM Sheridan Smith (New York: Pantheon Books, 1972) at 50. See also L Graham, “Discourse Analysis and the Critical Use of Foucault” (Paper delivered at the Australian Association for Research in Education Annual Conference, 27 November-1 December 2005), [unpublished]. The author expands the concept of discursive dividing practice. 64 Ownby, supra note 11. 65 Manfred Nowak, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or 72 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts An estimated 450,000 to one million Falun Gong practitioners are held at any given time in forced labour camps or long‑term detention facilities.66 Torture of Falun Gong practitioners includes severe beatings, deprivation of food, sleep, hygiene, rape and forced injection of nerve‑damaging psychiatric drugs.67 The Falun Gong community has documented over 3,400 deaths that resulted from such torture.68 In addition to these instances of torture and death arising out of the persecution of Falun Gong practitioners, there have been reports that, beginning in 2001, there have been cases where practitioners’ vital organs were harvested for transplants.69 The CCP’s discursive dividing practices have confused many people who want to understand the persecution of Falun Gong. Reliability of information sources has been identified as a problem in the study of Falun Gong. The principle reason for this is the lack of transparency of Chinese government documents, most of which are regarded as state secrets.70 Internet censorship and social media blockage are used to suppress the voices of citizens in order to achieve harmony. The Canadian Embassy in Beijing recently experienced this censorship when it posted the Canadian Federal Court ruling on the extradition of Lai Changxing, a high profile Chinese fugitive accused of masterminding a massive smuggling ring in China in the 1990s. The Embassy posted the ruling using a local social media tool named Weibo; the posting was taken off within minutes.71 It is not uncommon to find polarized documentation between the reports of official Chinese sources and those of Falun Gong. This gap poses difficulties for scholars and journalists and results in conflicting interpretations. Recent research on Falun Gong found that the reports of the Chinese government are mostly inconsistent and adversarial.72 One of the greatest discrepancies punishment, Mission to China, UNECOSOCOR , 66th Sess, UN Doc E/CN 4/2006/6/Add 6 (2006) at para 42. 66 Falun Dafa Information Centre, 2010 Annual Report of Falun Gong, online: Falun Dafa Information Centre lies in the government coercion and suppression of the Falun Gong practice in China.73 The Chinese government has consistently refused to allow third party verification of abuses and tortures claimed by Falun Gong practitioners.74 David Ownby finds that Falun Gong sources are more convincing and credible – while acknowledging the difficulty with verifying the sources.75 James Tong questioned the reliability of Falun Gong sources claiming that some of the third party reports from Falun Gong cannot be easily verified.76 The better position to take is that the reports of the Falun Gong are to be preferred to that of the CCP. According to prominent authors such as Ownby, Edelman and Richardson, Falun Gong practitioners have no political goals other than ending the persecution against them, but the CCP instigates the persecution in order to stifle its perceived opposition. It is, therefore, clear where the benefit of the doubt should lie when it comes to polarized, opposing accounts of the persecution. The Falun Gong practitioners have little to gain from falsifying accounts of persecution while the CCP has everything to gain by denying them. Moreover, this pattern of persecutory propaganda has been seen before – in Nazi Germany. It is logical that such a regime would cover up mass human rights violations with the use of propaganda as the foremost strategy to justify and camouflage its crimes.77 Likewise, in the case of Falun Gong, the brutal nature of the Chinese regime’s treatment of Falun Gong practitioners can be supported only through demonizing and defaming discourses on Falun Gong. E. The Extension of the Persecution of Falun Gong into Canada The suppression of Falun Gong does not stop at the boundaries of Mainland China. Mainstream overseas Chinese media and websites replicate the dominant and official Chinese discourse, thus perpetuating and extending the persecution of Falun Gong in countries such as Canada, where this has been frequently documented.78 There have been many reports of harassment, intimidation, hate incitement, and physical assault against Falun Gong practitioners and their supporters, the most extreme incident involving 73 Ownby, ibid at 163; Ownby’s testimony, supra note 16 at 30. 74 Ownby, ibid at 162. 75 Ibid at 162‑163 & 195. 76 Supra note 19 at 28. 77 Ownby, supra note 11; Maria H. Chang, supra note 11 at 128. Chang points out that 99% of trials in China bring a guilty verdict. Most trials are closed to the public, with some being held in secret. The judicial process was prejudiced against Falun Gong practitioners from the outset, and they are unfairly tried. 78 “Summary and sample list of Chinese officials’ violations of civil rights, laws, and sovereignty in Canada” (28 Oct 2003), online: Clearwisdom, 79 “Falun Gong protester attacked” (4 August, 2007) The Vancouver Sun, online: The Vancouver Sun, The extension of the persecution of Falun Gong beyond the Chinese border is not only experienced by practitioners in Canada. The persecution is extended outside China via the Chinese Consulate in different countries. One recent example of such interference by the Chinese Consulate occurred in Indonesia. The Chinese embassy in Jakarta sent a stern letter to Indonesia’s government demanding that a radio station run by the Falun Gong community be shut down because some of its broadcasts were hostile towards the CCP.84 The Falun Gong practitioners’ experiences of interference from the Chinese Communist regime have been confirmed by Chen Yonglin, the highest ranking official who had defected from the Chinese embassy in Australia. In his affidavit to the Supreme Court of British Columbia, Mr. Chen revealed that the Chinese regime’s mandate for all Chinese embassies and consulates worldwide is to control the Chinese media in order to influence public opinion. He said, ‘[t]he control of the overseas Chinese community has been a consistent strategic objective of the Chinese Communist Party so as to penetrate into the mainstream of the host country. It’s not just in Australia. It is done this way in other countries like the U.S. and Canada, too’85 He remarked that, ‘the ‘War on Falun Gong’ constitutes more than half the total work of the typical Chinese mission.86 Opposing Falun Gong is the top priority of all Chinese Embassies and Consulates today.”87 He further stated, “Standard practice requires that a senior diplomatic official, often the Consul General himself, must always write letters to the political figures responsible, and to local newspapers, opposing every public event or move hosted by Falun Gong practitioners in the host country.”88 F. The Need For Redress The crackdown on Falun Gong has violated the rule of law in China.89 The persecution of Falun Gong in China violates the Universal Declaration of 84 Andrew Higgins, “China seeks to silence dissent overseas” (14 July 2011) The Washington Post, online: The Washington Post Human Rights articles on torture90, due process of law91, freedom of religion and belief92 and freedom of assembly and association.93 The banning of Falun Gong contradicts the Constitution of China, which states that “[c]itizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.”94 The Constitution also states: [Chinese citizens] enjoy freedom of religious belief. No state organ, public organization or individual may compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens who believe in, or do not believe in, any religion.95 However, this is qualified with some exceptions by the passage which immediately follows it: The state protects normal religious activities. No one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the state. Religious bodies and religious affairs are not subject to any foreign domination. There is no evidence to justify the application of any of these exceptions to the practice of Falun Gong.96 The United Nations Special Rapporteur on freedom of religion or belief, Asma Jahangir, in December 2006, wrote: [T]he Special Rapporteur follows the approach of interpreting the scope of application for freedom of religion or belief in a large sense, bearing in mind that manifestations of this freedom may be subject to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. Rosalyn Higgins, who is currently President of the International Court of Justice and was a member of the Human Rights Committee when its general comment No. 22 was drafted, 90 General Assembly of United Nations, Universal Declaration of Human Rights, GA Res 217 (III), UNGAOR 3d Sess, Supp No 13, UN Doc A/810 (1948). 91 Ibid, arts 9-11. 92 Ibid, art 18. 93 Ibid, art 20. See also Janice Casil, “Falun Gong and China’s Human Rights Violations” (2004) 16:2 Peace Review 225 at 226. 94 Xianfa [Constitution of the People’s Republic of China] art 35 (1982). 95 Ibid, art 36. 96 Ibid. Falun Gong practitioners have been law-abiding citizens and the practice of Falun Gong is indigenous to Chinese traditional beliefs. There was no foreign influence at the outset of the persecution. Substantial data has been reported on the health benefits of Falun Gong before and after the persecution of Falun Gong. See e.g. He Mai, Falun Gong and Health Benefits – Part I (5 March 2011), online: Falun Dafa Clearwisdom [R]esolutely opposed the idea that States could have complete latitude to decide what was and what was not a genuine religious belief. The contents of a religion should be defined by the worshippers themselves; as for manifestations, article 18, paragraph 3 [the exceptions clause], existed to prevent them from violating the rights of others. A similar statement was made by Abdelfattah Amor in his 1997 report to the Commission on Human Rights. There, the second mandate‑holder emphasized that, apart from the legal courses available against harmful activities, “it is not the business of the State or any other group or community to act as the guardian of people’s consciences and encourage, impose or censure any religious belief or conviction.”97 Chinese courts provide no effective remedy for arbitrary detention and torture. Falun Gong practitioners who have come to Canada after 1999 have sought justice in Canada for the atrocities inflicted on them in China, as shown in the cases discussed below. The extension into Canada, through local mainstream Chinese media, of the CCP demonization and defamation tactics employed against the practice of Falun Gong in China, has led to discrimination against Falun Gong practitioners in Canada. These practitioners have brought a few of the worst cases of discrimination to Canadian human rights tribunals and courts. Smith underscores the importance of adopting a “standpoint” with the oppressed group. She recognizes the role of text (literature) in transmitting and objectifying dominant knowledge that the dominant power creates in order to justify its rule and to authorize people’s activities and lives.98 In the case of Falun Gong, the abuse and torture of the Falun Gong community by the Chinese Communist regime is well established. In view of the power imbalance between the Chinese authorities and the Falun Gong discourses, the authors analyse Falun Gong practitioners’ legal cases using the standpoint theory of Dorothy Smith, which seeks to present the voices of “subjects speaking for themselves”, thus allowing agency to remain with the subjects under study.99 The case materials open a window of opportunity for outsiders to understand the mechanism of the persecution of Falun Gong by China. The following cases illuminate how the Canadian courts have failed to understand the international context of Falun Gong oppression and the Chinese party-state methods of persecution. The result has been a failure to respond adequately both to international human rights violations and violations that take place in Canada. 97 Asma Jahingir, Report of the Special Rapporteur on Freedom of Religion or Belief, UNHRCOR, 4th Sess, UN Doc A/HRC/4/21, (2006) at para 46. 98 Dorothy E Smith, Institutional Ethnography: A Sociology for People (Toronto: Altamira Press, 2005) at xi. 99 Dorothy E Smith, “From the 14th floor to the Sidewalk: Writing Sociology at Ground Level” (2008) 78:3 Sociological Inquiry 417 at 419. 78 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts III. Case Analysis A. The Jiang Zemin and Bo Xilai Cases In 2004, Falun Gong practitioner Professor Kunlun Zhang, with others, commenced an action in the Ontario Supreme Court against former Chinese head of state Jiang Zemin. Falun Gong practitioner Rong Jin, in 2007, commenced an action against Bo Xilai, former Minister of Commerce in the Government of China and former head of Liaoning Province. Both plaintiffs are dual nationals of Canada and China who had suffered from, according to their pleadings, “forced and unlawful confinement, assault and battery, economic interference, physical and psychological torture, defamation, severe mental and emotional distress” for the sole reason that they practiced Falun Gong.100 Detailed documentation showed how Jiang Zemin and Bo Xilai were linked to the persecution of the plaintiffs. The court case submissions explained that the CCP is the driving force behind the persecution of Falun Gong, stating: The main structure through which the campaign of terror was carried out was the CCP, which being a political party is not officially the government or part of government/state apparatus, but which in reality controls much of government and was used to control all or virtually all aspects of government and state apparatus in this campaign.101 The plaintiffs Zhang and Jin urged that Jiang and Bo should be denied state immunity in Canada on the basis that Jiang and Bo abused their official positions in a manner that violated international law.102 In both cases, the courts have allowed the All China Lawyers Association (ACLA) to intervene in the proceedings. Every lawyer in the People’s Republic of China must be a member of the ACLA,103 which functions as a means of CCP control over its member lawyers.104 The ACLA and its affiliated local Lawyers Associations are controlled by the Ministry of Justice, which, in turn, is controlled by the CCP.105 The president of the ACLA and all of its executive members are CCP 100 Supra note 3 (Evidence, Statement of Claim at para 11, the Jiang Zemin case). In neither this case nor the Bo Xilai case was the lawsuit contested, except on the issue of state immunity. The pleadings therein are deemed to be true. Both cases are still pending. 101 Supra note 4 (Evidence, Statement of Claim at para 23). 102 Ibid (Evidence, Statement of Claim at para 24). 103 Supra note 1 (Evidence, Affidavit of Xu Jiali, 2 March 2007 at para 8). 104 Supra note 2 (Evidence, Affidavit of Clive Ansley, 19 May 2009 at para 74). 105 Ibid (Evidence, Affidavit of Guoting Guo at para 21), (Affidavit of Clive Ansley at para 33), (Affidavit of Han at para 5). Matas & Cheung, Canadian Tribunals, Human Rights and Falun Gong n 79 members.106 The ACLA functions as an intermediary between the CCP and individual lawyers. Through the ACLA, the CCP has issued guiding opinions to all lawyers putting restrictions on which groups lawyers can and cannot represent.107 Thus the ACLA is an instrument of the CCP in the suppression of Falun Gong, as it directs its members not to take on Falun Gong cases and punishes human rights lawyers who disobey its directives.108 Neither Jiang nor Bo contested the cases against them. The government of a foreign country, by statute, is entitled to appear in Court to raise the issue of state immunity, but in this case the Government of China chose not to so. Instead, the ACLA sought and was granted intervener status in both cases to argue state immunity. The reasoning of the courts was that the issue of state immunity had to be addressed and that the Court would benefit from hearing the argument from both sides of the issue. If the Government of China itself could argue state immunity, the courts saw no reason why an organization that held the same views as the government could not also do so. Counsel for Jin argued that to permit the ACLA to intervene would subject her to the spectre of her torturers’ disguised, but real, involvement in her action.109 The insertion of the ACLA into the proceedings inserted the CCP.110 Counsel for Jin argued that justice would not be seen to be done and an injustice would result by granting intervener status to the ACLA – which was complicit and even instrumental in the discrimination of Falun Gong. Moreover, Canadian justice would be brought into disrepute by allowing the ACLA to intervene because is the ACLA is an active participant in the persecution occurring in China, specifically, the obstruction of the rule of law and the denial of access to justice for Falun Gong practitioners in China.111 The ACLA is instrumental in instructing and pressuring lawyers not to represent clients who are practitioners of Falun Gong and disbars lawyers who do in fact take on such clients;112 therefore, counsel argued that the Court should not, in pursuit of the rule of law, grant intervener status to a party which has been active in thwarting the rule of law elsewhere. This argument should be even more persuasive considering the fact that the rule of law, which has been thwarted by the party seeking intervener status, also forms the subject matter of the very proceeding in which the party wishes to intervene. As was argued in 106 Ibid (Evidence, Affidavit of Clive Ansley at para 49). 107 Ibid (Evidence, Affidavit of Clive Ansley, 16 October 2009 at paras 30-35, 64). 108 Ibid (Evidence, Affidavit of Guoting Guo at para 24). 109 Ibid, (FOA at para 94). 110 Ibid, (FOA at para 92). 111 Ibid, (FOA at para 91). 112 Ibid, (FOA at paras 33, 34, 68). 80 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts the Bo Xilai case, “the interest of the ACLA is not genuinely public but is, rather, tainted by its complicity in the persecution that is the foundation of this lawsuit.”113 The Courts dismissed this submission on the basis that determining the complicity of the ACLA in acts of persecution in China would be too “costly and complex”.114 The Court, thus, underscored one of our key arguments in this article – the pressing need to address the general lack of awareness of the persecutory system employed by the CCP against Falun Gong in China. It is troubling to see that a persecutory agent would utilize its intervener status in Canadian courts to prevent victims from seeking a remedy for the persecution from which they have suffered. It is even more unsettling that intervener status was achieved because the Canadian courts are unaware of the complicity of the ACLA in the persecution of Falun Gong practitioners and the court’s conclusion that making a determination in that regard would take too much time and effort. An accused person’s access to justice is hindered if representation is denied. Indeed, even a person charged with heinous offences is entitled to counsel. That, however, does not mean that the accused is entitled to counsel who has committed the most heinous offences. Counsel is held to a certain standard of conduct to which the accused is not. Denying counsel, who has committed (or been complicit with) heinous acts, the right to represent an accused charged with similar acts is not a denial of the accused’s right to counsel, nor of the right of the accused to defend him/herself. Much the same can be said of an intervener – not merely counsel for the intervener. Just as counsel must be distinguished from the client, an intervener must be distinguished from a party whose position the intervener adopts. The doctrine that an intervener must come to court with clean hands reflects this principle. The fact that the Chinese government/Communist Party is guilty of numerous crimes does not mean that the Courts can or should allow an organization that is complicit in those crimes to intervene on its behalf. As of this date, the Jiang Zemin and Boxilai cases remain pending. The sole decision that has been made is to allow the ACLA to intervene. 113 Ibid, (FOA at para 103). 114 Rong Jin v Bo Xilai 2010 ONSC 3524 at para 20. Matas & Cheung, Canadian Tribunals, Human Rights and Falun Gong n 81 B. The Alberta Consulate Case While attending a conference at the University of Alberta in Edmonton in 2004, Huixia Chen, Chuyan Huang, Patrick Turc and Beryl Guo, observed Jianye Cao and Junyi Wu, two members of the Chinese consulate, distributing anti‑Falun Gong literature. They complained to the police that the dissemination of this literature amounted to a hate crime against Falun Gong.115 Given that the Criminal Code provides that “[e]veryone who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty…of an offence”;116 after a lengthy investigation of the Alberta Consulate incident, the Edmonton Police, recommended prosecution for the wilful promotion of hatred.117 The Police Occurrence Report of the incident examines four publications distributed by Alberta consulate officials: a press release entitled, “The Cult Nature of Falun Gong”; a booklet of fabricated case studies entitled, “The Truth, Cases of Falun Gong Victims”; a pamphlet entitled, “What is Falun Gong?”; and a booklet entitled, “Poppies of Modern Society, Stories of Falun Gong”. The publications portray Falun Gong practitioners as people who regard family and kinship as evil. One publication asserts that suicide by self-immolation or by jumping off buildings or mountains, as well as the murder of family members and friends, is the direct result of the practice of Falun Gong. The publication claims that Falun Gong practitioners see no value in life and regard it as a good deed to harm others. Despite the recommendation to prosecute made by the Edmonton Police, the case was never adjudicated. In order to proceed with the prosecution of any hate crime in Canada, the consent of the Attorney General of the province must be obtained,118 and in this case the Attorney General refused consent.119 The Attorney General, through his agent William Pinckney, who was the Assistant Director for Special Prosecutions, contrasted the anti‑Falun Gong material with material used in earlier prosecutions in Canada that resulted in convictions, noting their dissimilarity to the anti-Falun Gong material.120 Mr. Pinckney referenced the cases of Harding, Andrews, and Keegstra,121 all involving 115 Supra note 5 (Respondent’s Brief, 12 January 2007 at para 1). 116 Criminal Code, RSC 1985, c C-46 s 319(2). 117 This report has a section entitled “How the literature constitutes hate propaganda”. That section goes on for seven pages and can be viewed in its entirety on the internet as appendix 8 to the report of David Matas and David Kilgour “Bloody Harvest”, supra note 14. 118 Ibid. 119 Supra note 5 (Memorandum of the Applicants, 26 August 2006 at para 37). 120 Supra note 5 (Memorandum of the Applicants, 26 August 2006 at para 3). 121 R v Harding, [2001] 52 OR (3d) 714, 80 CRR (2d) 73 ; R v Andrews, [1990] 3 SCR 870, 77 DLR (4th) 128; R v 82 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts Nazi propaganda, suggesting that the impugned words and statements in those cases – which were found to constitute incitement of hatred – were different than those used in the Anti-Falun Gong material and thus did not amount to an incitement of hatred. The complainants challenged the decision of the Attorney General not to consent to prosecution in the Alberta Court of Queen’s Bench. In his submission to the Court, counsel for the complainants noted that in Andrews, the courts made the connection between Nazi propaganda and the mistreatment of Jews in Nazi Germany.122 In the Ontario Court of Appeal, Cory J wrote: The repetition of the loathsome messages of Nazi propaganda led in cruel and rapid succession from the breaking of the shop windows of Jewish merchants to the dispossession of the Jews from their property and their professions, to the establishment of concentration camps and gas chambers. The genocidal horrors of the Holocaust were made possible by the deliberate incitement of hatred against the Jewish and other minority peoples.123 Counsel for the complainants submitted to the Court that the Attorney General of Alberta failed to recognize the causal role of anti-Falun Gong propaganda in China and the effect it has on the persecution of Falun Gong.124 Counsel noted the following: By requiring that the form of discourse directed against the Falun Gong, in order to be prosecutable as incitement [of] hatred, must be similar to the discourse directed against other identifiable groups which has already led to convictions, the respondent is imposing a linguistic [straightjacket] on the legal remedies available to the applicants.125 Counsel for the complainants further argued that a “cookie cutter mold” was applied to determine what constitutes incitement of hatred.126 In fact, the anti‑Falun Gong material distributed by the two consulate members has strong similarities to the propaganda that has actually incited hate within China. Since this sort of material has “generated hatred sometime in the past somewhere else in the world [it] is compelling evidence that the material would likely expose a person to hatred in Canada.”127 Counsel for the Attorney General argued in response: There is no evidence of a direct causal link between the two, i.e. that the circulation of the literature is what caused persecution in China. Assuming that people have been persecuted there, it is more likely that the literature has been circulated at the same Keegstra, [1990] 3 SCR 697, 11 WCB (2d) 352. 122 Supra note 5 (Memorandum of the Applicants, 26 August 2006 at paras 23-25). 123 R v Andrews (1988), 65 OR (2d) 161 at 28. 124 Supra note 5 (Memorandum of Applicants at para 24). 125 Ibid (Memorandum of Applicants at para 32). 126 Ibid (Memorandum of Applicants at para 33). 127 Ibid (Memorandum of Applicants at para 19). Matas & Cheung, Canadian Tribunals, Human Rights and Falun Gong n 83 time. In other words, if there has been [oppression], then it has been carried out by the Chinese government, and not been caused by the literature itself.128 The application of the complainants was dismissed. The Court held that the decision of Mr. Pinckney for the Attorney General would stand on the basis that the courts would not interfere with the exercise of the discretion of the Attorney General.129 We dispute the position of the Attorney General. The persecution of Falun Gong is sustained by the spread of anti-Falun Gong sentiment made possible through propaganda.130 State‑controlled media use their power to create and dispense what they want people to believe; this false information covers up or obscures the truth known to many by virtue of their own positive life experiences of Falun Gong. Falun Gong practitioners are portrayed and objectified by the media in derogatory terms, alienating them from the larger community. The Falun Gong community is criminalized by the government, leading both to marginalization and silent acquiescence on the part of the general public. One report identified “defamatory propaganda disseminated by the State‑run media [as] the cornerstone of the persecution”.131 The CCP destroys all Falun Gong materials and denies the public access to them.132 The public, deprived of accessing this material about Falun Gong, can then be subjected to the CCP’s anti-Falun Gong propaganda and media without challenge or rebuttal.133 C. The Crescent Chau Case CCP-State propaganda directed against the Falun Gong is disseminated not only by official Chinese organs such as Chinese consulates, it is also spread by local Chinese‑Canadian media. In November and December 2001 and February 2002, the Montréal-based newspaper La Presse Chinoise published a series of defamatory attacks against Falun Gong.134 The articles included scurrilous accusations that “Canadian practitioners of Falun Gong are guilty of money‑laundering for the underworld, murder, forcing women [into] prostitution, bestiality […] and sucking blood from practitioners of the 128 Supra note 5 (Respondent’s brief at para 53). 129 Supra note 5 (Argument, Counsel for the Attorney General). 130 Chang, supra note 11 at 11-20, 125. 131 WOIPFG, “Report on Chinese Media Involvement in Persecuting Falun Gong” (10 January 2004) at 1, online: Clearwisdom.net 135 Ibid at 1.9. 136 Ibid at para 3.24. 137 Supra note 6 at para 13. 138 Supra note 6 (FOA at para 1.13). 139 Supra note 6 at para 13. 140 John Clement Carpenter Gatley et al, Gatley on Libel and Slander, 8th ed by Philip Lewis (London: Sweet & Maxwell, 1981) at 126. Matas & Cheung, Canadian Tribunals, Human Rights and Falun Gong n 85 Unless this can be answered in the affirmative, he has no cause of action. The true question always is: was the individual or were the individuals bringing the action personally pointed to by the words complained of?141 The Court of Appeal dismissed the lawsuit on the basis that one cannot defame a group. The law of defamation applies to individuals only and so the newspaper would not be liable for its defamatory allegations. The Québec Superior Court, in contrast, gave credence to the defamation, holding that the Court was not able “to come to the conclusion that the contents of the impugned particles... are false, grossly inaccurate, published to incite hatred and derision in Canada or persecution in the People’s Republic of China.”142 Even though this component of the reasons was eventually overruled by the Québec Court of Appeal, the fact that a Québec Superior Court judge would give credence to CCP propaganda against the Falun Gong is troubling. D. The Chinese Seniors Association Case Daiming Huang, an elderly Chinese‑Canadian woman, brought a complaint to the Ontario Human Rights Tribunal against the Ottawa Chinese Seniors Association (OCSA).143 The Association consists mainly of seniors who are new immigrants from China. Ms. Huang claimed she was the object of discriminatory remarks from the Association leadership and was forced to withdraw her membership, which excluded her from all services provided by the Association.144 She claimed that her membership had been revoked because of her belief in Falun Gong and because propaganda had been disseminated to the Association by the Chinese government which reported that Falun Gong is an evil cult.145 In response to the complaint, the Association denied that Ms. Huang’s membership was revoked, and claimed that Ms. Huang voluntarily withdrew from the association. Association member Xin Dingjian filed an affidavit with the Tribunal noting that Chinese Ambassador Mei Ping hosted a session of the Federation of the Ottawa Chinese Community Organizations at which a resolution to ban Falun Gong in Canada was announced.146 At the Tribunal hearing, Xin testified that anti‑Falun Gong materials had been displayed at the Chinese Community Centre and that members of the Association’s Council had made negative accusations about Falun Gong. Xin observed that, at an Association 141 Ibid at 127. 142 Zhang v Chau, [2005] QJ No 17828 at para 41. 143 Supra note 7 at para 1. 144 Ibid at para 5. 145 Ibid at paras 110-116. 146 Ibid (Evidence, Affidavit of Xin Dingjian at para 5). 86 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts event before the revocation of Huang’s membership, a petition against Falun Gong was circulated to members.147 In an affidavit filed with the Tribunal, Association member Xiao Junqiang also stated that he overheard the Consul General of the Chinese Embassy telling OCSA’s Chair that “people who practised Falun Gong cannot be allowed to participate in activities of the Chinese Seniors Association. The Association should also not allow persons who practice Falun Gong to join the Association.”148 On December 29, 2001, at a New Year’s celebration, Ms. Huang distributed informative Falun Gong flyers to five people at her table in response to questions about her good health and appearance. Ms. Huang testified that the secretary of the Seniors Association informed her that the Association’s Council had decided to exclude Falun Gong practitioners from its membership. Her membership was unilaterally terminated by the Seniors Association because of her spiritual practice of Falun Gong.149 After her membership in the Association was revoked Ms. Huang asked for an award in the amount of $100,000, in part because: d. there is a link between the Chinese party-state and the Association’s decision to revoke her membership. There is also clear solidarity between the Association and the Chinese government; e. the discrimination in this case is particularly serious because the world‑wide persecution of Falun Gong makes the complainant more vulnerable and puts her in greater anguish; and f. the matter is of global significance and should send a message to Chinese government to cease persecution.150 On April 27, 2011, the Tribunal ruled in Daiming Huang’s favour, having found that the Association and its leadership violated the Ontario Human Rights Code.151 The Tribunal ordered that “the corporate respondent shall pay the complainant $15,000 for the injury to her dignity, feelings and self‑respect arising from the infringement of her rights under the Code.”152 Although ruling in favour of Huang, the Tribunal failed to address the persecution of Falun Gong in a global context and the behaviour of the Chinese Seniors Association insofar as it acted as a persecutory agent of the CCP-State within Canada. The Judge disregarded the testimony of Xiao Junqiang regarding 147 Ibid (Evidence, Affidavit of Xin Dingjian at para 21). 148 Ibid (Evidence, Representations of the Complainant, testimony of Xiao Junqiang at para 49). 149 Ibid (Evidence, Representations of the complainant, testimony of Xiao Junqiang at para 46). 150 Ibid at para 120. 151 RSO 1990, c H-19. 152 Supra note 7 at para 142. Matas & Cheung, Canadian Tribunals, Human Rights and Falun Gong n 87 the Consul General of the Chinese Embassy on the basis that it “[did] not stand up to examination in terms of reasonableness or consistency with the other evidence and the circumstances.”153 This conclusion could have been reached only by someone ignorant of the pattern of CCP-State persecution of Falun Gong abroad. Even though Ms. Huang succeeded before the Tribunal, we ask if justice has been served. An evaluation of the legal system’s adequacy should not be based solely on the outcome, but rather on the process as a whole. Because it made no finding on the global pattern of persecution, the decision achieved less than it could have in response to the persecution of Falun Gong in Canada and throughout the world. IV. Institutional Constraints The failure of courts and tribunals to come to grips with the Falun Gong phenomenon cannot be attributed to inadequate pleadings or insufficient evidence. Rather, Falun Gong litigants are running up against institutional constraint. Courts and tribunals in Canada, whether specialized or general, rely on the parties to set out relevant information. Canadian courts and tribunals are, for the most part, adversarial and not investigative. In a Canadian context, the courts and tribunals may not know the contextual details which led to the dispute, but they are expected to be, and indeed are, familiar with the Canadian context in which the dispute is embedded. The matter is different when the dispute has a foreign context. In that situation, the whole cultural framework is different. There is a tendency for Canadian courts and tribunals to extrapolate and to assume that, unless shown otherwise, the norms and patterns of behaviour that exist in other countries are the same as those in Canada. For China, with a culture very different from that of Canada, that assumption is often mistaken. The problem posed by the Falun Gong cases is that Falun Gong is not just one island of difference in a sea of sameness. Rather, the Falun Gong phenomenon, originating in China, occurs in an environment that is very different from the Canadian environment. In order to better understand and adjudicate the issues before them, Canadian courts and tribunals could give a contextual analysis that explains the Falun Gong repression, much as we attempt in this article. This sort of analysis, however, goes against the tendency of courts and tribunals to restrict themselves to the disputes before them and to avoid broad sweeping statements that are unnecessary to the resolution of the particular disputes. Indeed, counsel is often discouraged from raising broad, general, contextual 153 Ibid at para 70. 88 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts issues.154 This practice of exclusively considering the particular dispute at hand makes sense where the broader context is Canadian; however, where the broader context lies outside Canada and is culturally distinct, this restriction prevents courts and tribunals from fully understanding the dispute. In sitting on judicial review of refugee determinations, the Federal Court has commented on this problem stating that considerable caution is required when assessing the norms and patterns of different cultures.155 This caution needs to be applied generally to all tribunals and courts in Canada and not solely to the Refugee Protection Division of the Immigration and Refugee Board. With regard to Falun Gong cases, Canadian courts and tribunals must exercise greater cultural sensitivity and awareness and exhibit greater openness to broad, general contextual information than they have shown thus far. There is a variety of solutions to the failures identified here. One lies in the selection process of judges and tribunal members that gives weight to their background, experience, and knowledge in non-Canadian cultures and political systems. Another is training and continuing education in the differing nature of legal problems that arise in the context of addressing claims of oppression occurring outside Canada, but adjudicated within Canada. A third is a shift that allows and encourages counsel to address larger contextual issues, and also allows the courts and tribunals themselves to address these issues. V. Conclusion The persecution of Falun Gong has been ongoing for twelve years. The persecution is sustained by the promotion of Mainland Chinese oppressive discourse through the withholding and masking of critical information and knowledge. In Mainland China, the general public is not only fed anti-Falun Gong propaganda, but also false and distorted information about the extent of persecutory actions taken against Falun Gong. The fear generated by the denigration of Falun Gong, coupled with the punitive measures utilized by Chinese authorities to combat any dissidence, serves to silence the general public on the topic of Falun Gong and perpetuates the oppressive status quo. The Chinese Party-State, using its local and international media, capitalizes on this fear, both in China and abroad, in order to carry out its persecution of Falun Gong practitioners. As a result, Falun Gong practitioners continue to be 154 See eg Kruger v The Queen, [1978] 1 SCR 104 at pages 108 and 109. 155 See Giron v Canada (Minister of Employment and Immigration), [1992] 143 NR 238 (FCA). Matas & Cheung, Canadian Tribunals, Human Rights and Falun Gong n 89 the targets of torture, libel, discriminatory actions, and marginalization by the Chinese community, both in China and Canada. Not since the days of Nazi Germany have we seen a political party use a country’s governmental system in its entirety, at home and abroad, to execute an agenda of persecution in the way that the CCP now uses the Chinese government to execute its agenda of persecution against the Falun Gong community worldwide. It is true that there are many modern day instances of persecution of other groups, but the Falun Gong phenomenon is distinct in several important ways. For example, in recent years the Libyan and Syrian governments have suppressed their democracy‑prone dissidents;156 however, their targets are political in nature, rather than based on identity in spiritual beliefs and the suppression has not been extended beyond their borders. In contrast, the Chinese Communist Party-State persecution of Falun Gong pervades all levels of government in China and extends beyond national borders. The persecution of this minority group is perpetrated on an international scale thwarting those who seek justice. The employment of this system at the international level has extended the persecution of Falun Gong practitioners into Western countries such as Canada. Canadian tribunals have been ineffective in responding to the systemic international persecution of Falun Gong emanating from China. To remedy this situation, the Canadian legal system needs to develop the capacity to understand the various persecutory mechanisms of another sovereign state. Justice requires knowledge. It is impossible for the uninformed to be just. Specialized tribunals, in particular, should have specialized knowledge. Human rights tribunals should have a greater awareness and understanding of human rights issues. Where tribunals do not have this knowledge, they should not, under any circumstances, prevent the parties from presenting evidence that would allow Tribunals to be better informed. In the case of courts of general jurisdiction, judges cannot be expected to have specialized knowledge; however, they can be expected to allow the parties to present the evidence necessary to reach an informed decision, and not to repeat bigotry as fact. Lack of knowledge of the CCP-State’s global oppression of Falun Gong has meant that efforts by Falun Gong victims in Canada to seek justice have been thwarted outright or have gone astray. We have seen specialized human rights tribunals that did not have the requisite specialized knowledge, general jurisdiction courts that prevented Falun Gong litigants from presenting the evidence necessary for the court to make an informed decision and, even 156 Matthew Weaver, Syria, Libya and Middle East unrest, online: The Guardian 92 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts Cultural Restoration in International Law: Pathways to Indigenous Self-Determination Jeff Corntassel1 How are land-based and water-based cultural harms addressed and remedied for Indigenous peoples? Under existing international legal norms, states and other non-state entities have a duty to provide redress for the harms of colonialism and occupation, and this obligation extends to the recognition and protection of Indigenous territories as well as regenerating subsistence living through land-based and water-based cultural practices. What role do international treaties and the UN Declaration on the Rights of Indigenous Peoples play in terms of promoting comprehensive restorative justice for Indigenous communities? Given that the rights discourse can take Indigenous peoples only so far in this struggle for the reclamation and regeneration of Indigenous traditional lifestyles, what are some strategies that other Indigenous peoples have utilized to promote sustainable self-determination? Overall, findings from this research offer theoretical and applied understandings for regenerating indigenous nationhood and restoring sustainable relationships on indigenous homelands. Comment, pour les peuples autochtones, peut-on aborder et remédier aux dommages culturels terrestres et aquatiques? Selon les normes juridiques internationales, les états et les entités non-étatiques doivent remédier aux dommages causés par le colonialisme et l’occupation en reconnaissant et en protégeant les territoires autochtones ainsi qu’en rétablissant l’autosuffisance à travers des pratiques culturelles terrestres et aquatiques. Quel rôle les traités internationaux et la Déclaration des Nations Unies sur les droits des peuples autochtones jouent-ils pour promouvoir une forme de justice réparatrice complète auprès des communautés autochtones? Puisque, à lui seul, le discours des droits ne pourra gagner le combat pour la réclamation et la régénération des styles de vie traditionnels des peuples autochtones, quelles stratégies les peuples autochtones ont-ils utilisées pour promouvoir l’auto-détermination durable? Somme toute, les résultats de cette recherche offrent des idées théoriques et appliquées pour rétablir le sens de nation autochtone et pour restaurer des relations durables sur les terres autochtones. 1 Associate Professor, School of Indigenous Governance, University of Victoria. 94 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts I. Introduction hat happens when the salmon people can no longer catch salmon in their rivers? Or when the buffalo people no longer have free- Wranging buffalo to hunt? Or when the medicines, waters, and traditional foods that Indigenous peoples have relied on to sustain their communities for millennia become contaminated with toxins? What recourse exists when Indigenous homelands have become so disfigured that they are unrecognizable to Indigenous peoples, creating an “absence of fit between the place itself and the way its name describes it?”1 Ultimately, what happens when our homelands no longer recognize us as being indigenous to that place? Increasingly, ethnobotanists and other environmental researchers recognize that “many causes of biodiversity loss are also responsible for the loss of cultural diversity.”2 The same forces that threaten Indigenous languages, homelands and community well-being also endanger ecosystems (including plant and animal species, water, soil, etc.). Environmental destruction and settler encroachment jeopardize the sustainable relationships Indigenous nations have practiced with their families and the natural world for thousands of years, including their land-based and water-based cultural practices. As the late geographer Bernard Nietschmann observes: Where there are nation peoples with an intact, self-governed homeland, there are still biologically rich environments … The converse is equally striking: State environments – where the non-nation peoples live – are almost always areas of destructive deforestation, desertification, massive freshwater depletion and pollution, and large-scale reduction of genetic and biological diversity.3 Being Indigenous today means engaging in a struggle to reclaim and regenerate one’s relational, place-based existence, by challenging the ongoing, destructive forces of colonization.4 Indigeneity is about continuously 1 Keith Basso, Wisdom Sits in Places (Albuquerque: University of New Mexico Press, 1996) at 14. 2 Sarah Pilgrim & Jules Pretty, “Nature and Culture: An Introduction” in Sarah Pilgrim & Jules Pretty, eds, Nature and Culture: Rebuilding Lost Connections (London, UK: Earthscan, 2010) 1 at 9. See also Fikret Berkes, Sacred Ecology, 2d ed (New York: Routledge, 2008). 3 Bernard Nietschmann, ”The Fourth World: Nations Versus States” in George J Demko & William B Wood, eds, Reordering the World: Geopolitical Perspectives on the 21st Century, 1st ed (Boulder, Col: Westview Press, 1994) 225 at 239. 4 The United Nations has not adopted an official definition of Indigenous peoples, but working definitions, such as the one developed by the United Nations Working Group on Indigenous Populations in 1986, offer some generally accepted guidelines for self-identifying Indigenous peoples and nations: (a) self-identification as Indigenous peoples at the individual level and accepted by the community as their member; (b) historical continuity with pre-colonial and/or pre-settler societies; (c) strong link to territories and surround natural resources; (d) distinct social, economic, or political systems; (e) distinct language, culture, and beliefs; (f) form non-dominant groups of society; and (g) resolve to maintain and reproduce their ancestral environments and systems as distinctive peoples and communities. See generally Indigenous Peoples, Indigenous Voices, UNPFII, 2007 online: renewing our community roles and responsibilities. Whether through ceremony or through other ways that Indigenous peoples (re)connect to the natural world, processes of restoration and regeneration are often contentious and reflect the spiritual, cultural, economic, social and political scope of the struggle.5 According to the late Mohawk scholar, Patricia Monture-Angus, “[s]elf-determination is principally, that is first and foremost, about relationships. Communities cannot be self-governing unless members of those communities are well and living in a responsible way.”6 Despite Prime Minister Harper’s assertions that “we” in Canada “have no history of colonialism”,7 contemporary colonialism continues to disrupt Indigenous relationships with their homelands, cultures and communities. In order to live in a “responsible way” as self-determining nations, Indigenous peoples must confront colonial institutions, structures and policies, not only historically but, as part of an ongoing process that impacts the health and well-being of present generations of Indigenous youth and families. According to Dakota historian Waziyatawin, “[c]olonial dominance can be maintained only if the history of the subjugated is denied and that of the colonizer elevated and glorified.”8 Strategies of decolonization offer different pathways for reconnecting Indigenous nations with their traditional land- based and water-based cultural practices. When describing a process of decolonization, Kanaka Maoli scholar Kahikina de Silva envisions it as a way of moving “from performance to practice.”9 This entails moving away from the performativity of a rights discourse aimed at state affirmation and approval toward a daily existence conditioned by place-based cultural practices. Decolonization, as a process, has multiple layers to it and centres on resisting colonial encroachments into our daily lives and homelands, while practicing everyday acts of resurgence through conscious community Indigenous peoples around the world, see Jeff Corntassel, “Who is Indigenous? ‘Peoplehood’ and Ethnonationalist Approaches to Rearticulating Indigenous Identity” (2003) 9:1 Nationalism Ethn Polit 75 at 75-100 [Corntassel, “Indigenous”]. 5 Leroy Little Bear, “Foreword” in Taiaiake Alfred, Wasáse: indigenous pathways of action and freedom (Toronto: Broadview Press, 2005) 9 at 10. 6 Patricia Monture-Angus, Journeying Forward: Dreaming First Nations’ Independence (Halifax: Fernwood Publishing, 1999) at 8. 7 David Ljunggren, “Every G20 nation wants to be Canada, Stephen Harper insists”, Calgary Herald (25 September 2009) online: Indigenous Portal 10 Glen S Coulthard, “Subjects of Empire: Indigenous Peoples and the ‘Politics of Recognition’ in Canada” (2007) 6:4 Contemp Pol Theory 437 at 439. 11 Jeff Corntassel, “Toward Sustainable Self-Determination: Rethinking the Contemporary Indigenous- Rights Discourse” (2008) 33 Alt J 105 at 115-116 [Corntassel, “Toward”]. 12 Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR, 61st Sess, Supp No 49, UN Doc A/RES/47/1, (2007) at art 46 [Declaration]. 13 Taiaiake Alfred, Wasáse: indigenous pathways of action and freedom (Toronto: Broadview Press, 2005) at 113. Corntassel, Cultural Restoration in International Law n 97 example, Cheryl Bryce and her family have been managing their traditional Lekwungen territories for centuries and Cheryl continues to harvest kwetlal, (camas), a starchy bulb that has been a staple food and trade item for Indigenous peoples in the region for generations, on park lands and private properties, despite threats to her and her family’s well-being from settlers attempting to deny her access to Lekwungen homelands.14 The revitalization of these traditional foods, as well as community roles and responsibilities, is critical to the future survival and regeneration of Lekwungen peoples. A community’s cultural continuity is premised on direct actions to protect these sacred relationships. It follows that sustainable self-determination is both an individual and community-driven process where “evolving indigenous livelihoods, food security, community governance, relationships to homelands and the natural world, and ceremonial life can be practiced today locally and regionally – thus enabling the transmission of these traditions and practices to future generations.”15 This article examines how cultural harm against Indigenous peoples is described and assessed under international law and existing human rights regimes, such as the Inter-American Commission on Human Rights (IACHR) and the Declaration. How have questions of restitution and restoration for cultural loss been framed by the rights discourse? Additionally, how have Indigenous peoples initiated processes of restoration and regeneration on their own terms? The proceeding analysis is organized into three parts: (1) recovery and the colonial context; (2) restoration of land-based and water- based cultural practices; and (3) regenerating Indigenous nationhood. First, however, I will begin by conceptualizing some key terms used throughout the article. II. Culture and Continuity Culture includes a “combination of sets of practices, networks of institutions and systems of meanings.”16 For the purposes of this article, cultural practices comprise the everyday activities of Indigenous peoples in relationship to their homelands (including both land-based and water-based practices). It is understood that Indigenous peoples who live outside their 14 Briony Penn, “Restoring Camas and Culture to Lekwungen and Victoria: An interview with Lekwungen Cheryl Bryce”, Focus Magazine (June 2006) 1 at 2, online: 17 Jim Silver et al, In Their Own Voices: Building Urban Aboriginal Communities (Halifax: Fernwood Publishing, 2006) at 15. 18 Indigenous peoples living in Vancouver, Edmonton, Calgary, Regina, Saskatoon, Winnipeg, Thunder Bay, Montreal, Toronto, Halifax and Ottawa were surveyed both in person and by phone. See Environics Institute, Urban Aboriginal Peoples Study: Main Report (Toronto: Environics Institute, 2010), online: Indigenous notion of subsistence living corresponds most closely to Shiva’s description of the sustenance economy. The term subsistence usually describes a specific type of economic system that is interrelated to a set of social practices driving a particular community. Subsistence entails everyday living on the land while sustainability is the broader outcome, philosophy and Indigenous knowledge base undergirding it. According to the late Seneca scholar John Mohawk, subsistence living is a “cultural, spiritual, social exchange that’s intended to go on for generations.”22 A subsistence economy is one that strengthens and enriches Indigenous communities and economies, rather than the other way around, where Indigenous communities might intentionally (or unintentionally) put their energies into strengthening the dominant economic system. The “cultural, spiritual, social exchange” that Mohawk refers to entails much more than an exchange of material goods; subsistence economies are sustainable because at their core are moral relationships and reciprocal practices that are continuously renewed. As Sami scholar Rauna Kuokkanen points out, “[s]ustainability is premised on an ethos of reciprocity in which people reciprocate not only with one another but also with the land and the spirit world.”23 This conceptualization of sustainability runs much deeper than the frequently cited Brundtland Commission definition of “meeting the needs of the present without compromising the ability of future generations to meet their own needs.”24 An Indigenous notion of sustainability involves living in relationship to the land and natural world and giving back more than you take, rather than simply residing on the land. Sustainability is also “intrinsically linked to the transmission of traditional knowledge and cultural practices to future generations.”25 For this reason, engaging in a process of sustainable self-determination is about promoting subsistence living and is much more 22 John Mohawk, “Subsistence and Materialism” in Jerry Mander & Victoria Tauli-Corpuz, eds, Paradigm Wars: Indigenous Peoples’ Resistance to Globalization, 2nd ed (San Francisco: Sierra Club Books, 2006) 23 at 27. 23 Rauna Kuokkanen, “Indigenous Economies, Theories of Subsistence, and Women,” (2011) 35 Am Ind Q 215 at 219. 24 World Commission on Environment and Development, Report of the World Commission on Environment and Development: Our Common Future, WCED, 96th Sess, Annex, Agenda Item 3, UN Doc A/42/187 (1987). online: • (2) livelihoods, practices and resource management systems; • (3) knowledge bases and languages; and • (4) institutions, norms, and regulations.27 What seems to be missing from these four components are other “worldview” factors that unite and regenerate communities, such as ceremonial life and nationhood. A model of “peoplehood” – which Cherokee/ Creek scholar Tom Holm and his colleagues describe as four interlocking relationships of sacred history, ceremonial cycles, language and ancestral homelands – demonstrates how loss in one area, such as language, can impact other cultural practices undertaken by the community.28 Holm points out that 26 Pilgrim & Pretty, supra note 3 at 11. 27 Jules Pretty et al, “How do Biodiversity and Culture Intersect?” (Plenary paper delivered at the conference “Sustaining Cultural and Biological Diversity In a Rapidly Changing World: Lessons for Global Policy”, 2-5 April 2008) at 3, 5, 6 & 7, online: Centre for Biodiversity and Conservation “[n]o single element of the model is more or less important than the others.”29 If any one of these cultural practices is in jeopardy of being lost, it can prompt unified action to restore and revitalize it. Of course, none of these models are useful unless they are actually practiced. At its core, a revised peoplehood model requires a continuous process of individual and community renewal in order to be sustainable in everyday practice.30 Keeping these cultural continuity indicators in mind, the United Nations Permanent Forum on Indigenous Issues (PFII) has attempted to address the problem of developing culturally relevant indicators for Indigenous peoples in terms of well-being, poverty and sustainability by holding global and regional Indigenous workshops on these topics. In 2008, under the guidance of “The Forum on Biodiversity Working Group on Indicators”, the PFII identified twelve global core themes and issues relevant to indigenous peoples: • (1) security of rights to territories, lands and natural resources; • (2) integrity of indigenous cultural heritage; • (3) respect for identity and non-discrimination; • (4) fate control; • (5) full, informed and effective participation; • (6) culturally appropriate education; • (7) health; • (8) access to infrastructure and basic services; • (9) extent of external threats; • (10) material well-being; • (11) gender; and • (12) demographic patterns of indigenous peoples.31 29 Ibid at 15. 30 Jeff Corntassel & Tom Holm, eds, The Power of Peoplehood: Regenerating Indigenous Indian Nations, (Austin: University of Texas Press) [forthcoming]. 31 Indicators of Well-being, Poverty and Sustainability Relevant to Indigenous Peoples: Summary Report on Regional and Thematic Workshops on Indicators Relevant to Indigenous Peoples Under the Convention of Biological Diversity and the Millennium Development Goals/ Submitted by Victoria Tauli-Corpuz, Forum Member, UNESCOR, 7th Sess, UN Doc E/C 19/2008/9, (2008) at 10. 102 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts While some of the PFII indicators overlap with the components identified by Pretty as necessary for maintaining cultural continuity (in particular, indicators 1, 2, 5 and 8), several of the other indicators deal more with adapting state measures of human rights and sustainability to an Indigenous context. Given the comprehensive nature of these measures, there exists the potential for misinterpretation and policy-making discretion that obscure Indigenous worldviews and relationships to the land. According to ethnobotanist Nancy Turner, when cultural loss “is not obvious to others, is not readily measured, is not represented in a manner recognized as legitimate, or is the result of a series of compounding impacts that are not easily connected to an original action, the consequences can be invisible even though they prove devastating.”32 These “invisible losses” and threats to cultural continuity will be examined in the proceeding section on the colonial impacts on the Indigenous recovery of cultural practices. III. Recovery and the Colonial Context As indicated by Monture-Angus, a process of sustainable self- determination is premised on the well-being of communities “living in a responsible way.”33 Recovery in this context entails identifying and challenging the colonial institutions, policies and mentalities that disconnect Indigenous peoples from their place-based existence as well as reconnecting with their ancestral relationships and revitalizing the health and well-being of Indigenous communities. Reconnecting to the land is key to the recovery of Indigenous knowledge and for revitalizing the health of the community. From an Indigenous perspective, health takes on a much broader meaning than the standard bio-medical definitions. According to Mohawk scholar Mary Arquette: Health is spiritual. Health is rooted in the heart of the culture. Health is based on peaceful, sustainable relationships with other peoples including family, community, Nation, the natural world, and spiritual beings. Health is supported by the solid foundation of a healthy natural world.34 As advanced by Arquette, community health and well-being are directly related to cultural continuity. Research in this area has shown clearly that “the degree of control that people have in their life and their capacity to 32 Nancy J Turner et al, “From Invisibility to Transparency: Identifying the Implications” (2008) 13:2 Ecology and Society (7th) 1 at 1. 33 Supra note 7. 34 Mary Arquette et al, “Holistic Risk-Based Environmental Decision Making: A Native Perspective” (2002) 110 Environmental Health Perspectives 259 at 262. Corntassel, Cultural Restoration in International Law n 103 take action, especially during times of stress, are key influences to health.”35 Part of the recovery process involves linking cultural harm and losses to the contemporary conditions of Indigenous nations and families. Turner describes several invisible losses that often go unrecognized: • (1) cultural and life-style losses; • (2) loss of identity; • (3) health losses; • (4) loss of self-determination and influence; • (5) emotional and psychological losses; • (6) loss of order in the world; • (7) knowledge losses; and • (8) indirect economic losses and lost opportunities.36 For example, health losses often occur when traditional food sources are contaminated and/or when Indigenous peoples are denied access to their traditional territories. The Saint Lawrence River ecosystem has been systematically polluted since the 1950s by corporations such as the General Motors Powertrain Division and Reynolds Metals and the Aluminum Company of America (ALCOA) which have released toxicants such as polychlorinated biphenyl (PCBs), dibenzofurans, dioxins, polyaromatic hydrocarbons, fluorides, cyanide, aluminum, arsenic, chromium and styrene into the air, land and water.37 The contamination of the river has threatened the health and well-being of Mohawks who rely on these lands and waterways for fishing, farming, horticulture, medicine plants, hunting, trapping and the continuation of their land-based and water-based cultural practices that have sustained their communities for millennia. Given that it is deemed unsafe to consume fish caught in the river, hunt animals that drink from the river or even eat plants nourished by the river, community members have been forced to rely on other food sources. Consequently, traditional diets have been replaced with processed and marketed food, thus increasing health risks such as heart disease and diabetes.38 Additionally, with the interruption of 35 Ibid. 36 Turner et al, supra note 33 at 3-5. 37 Arquette et al, supra note 35 at 259. 38 Turner et al, supra note 33 at 3. 104 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts land-based and water-based cultural practices along the river, ceremonial life, language use and even the gathering of medicines has been curtailed, denying the transmission of some forms of Indigenous knowledge and practices to future generations. Furthermore, clean-up of these areas may take decades of legal warfare, impact assessments, human rights claims and community reclamation efforts while cultural practices and access to traditional foods become increasingly scarce, rendering these losses invisible. Mohawks of Akwesasne and in other neighboring communities persist in their demands for justice and restoration of these cultural losses so that future generations will survive and thrive as sustainable communities. Through colonial policies and “invisible losses”, states and other entities attempt to erase Indigenous histories and presence on the land. Ultimately, Indigenous nations are only as strong as their collective memories. This is the reason why Indigenous knowledge recovery and the regeneration of land-based and water-based practices is so vital to Indigenous sustainability. According to Waziyatawin, (Angela Cavender Wilson), “[t]he recovery of Indigenous knowledge is deeply intertwined with the process of decolonization because for many of us it is only through a consciously critical assessment of how the historical process of colonization has systematically devalued our Indigenous ways that we can begin to reverse the damage wrought from those assaults.”39 As Mohawk scholar Taiaiake Alfred points out in his extensive study on the psychological and physical impacts of colonialism on Indigenous peoples within a Canadian context, “colonialism is best conceptualized as an irresistible outcome of a multigenerational and multifaceted process of forced dispossession and attempted acculturation – a disconnection from land, culture, and community – that has resulted in political chaos and social discord within First nations communities and the collective dependency of First Nations upon the state.”40 This disconnection from the land, culture and community has led to social suffering and the destruction of families and yet “the real deprivation is the erosion of an ethic of universal respect and responsibility that used to be the hallmark of indigenous societies.”41 The linkages between cultural injury and the disintegration of community health and well-being could not be clearer. Furthermore, this is a spiritual crisis as much as it is a political, social and economic crisis. It follows that “[m]eaningful change, the 39 Angela Cavender Wilson, “Reclaiming our Humanity: Decolonization and the Recovery of Indigenous Knowledge” in Devon Abbott Mihesuah & Angela Cavender Wilson, eds, Indigenizing the Academy: Transforming Scholarship and Empowering Communities (Lincoln: University of Nebraska Press, 2004) 69 at 72. 40 Taiaiake Alfred, “Colonialism and State Dependency” (2009) 5:2 Journal of Aboriginal Health 42 at 52 [Alfred, “Colonialism”]. 41 Ibid at 43. Corntassel, Cultural Restoration in International Law n 105 true transcendence of colonialism, and the restoration of indigenous strength and freedom can be achieved only through the resurgence of an indigenous consciousness channelled into contention with colonialism.”42 With an understanding of the linkages between Indigenous recovery, health and reconnections to land-based and water-based practices, how have these relationships been operationalized as rights within international law? A 2003 questionnaire examining Indigenous peoples traditional foods and cultures undertaken by the International Indian Treaty Council (IITC) offers some initial insights into the difficulties faced by Indigenous nations as they initiate recovery and restoration of their cultural practices.43 110 (86 percent) of the Indigenous nations responding to the questionnaire stated that it was “very important” for their “community to keep growing/ hunting/fishing/gathering/herding and eating your cultural foods for an active, healthy life.”44 Additionally, when asked whether “your community started any activities to strengthen, protect and/or restore its traditional subsistence foods and practices?”, 83 (72 percent) Indigenous nations responded “yes”. However, 33 (28 percent) Indigenous nations stated that they either “plan to” or “no”. One of the nations answering “no” said “because there’s not enough unity to take care of & protect the foods.”45 In addition to the challenges of disunity as well as the marketization of traditional foods, perhaps the most telling indicator was the fact that most food sovereignty initiatives among those surveyed were started by state, government agency, international program or non-governmental organization from outside the Indigenous community. When asked “[w]ere any members of your community involved in planning or carrying out the new program?”, only seven nations (16 percent) responded “yes, allowed to be fully involved”, 17 respondents (40 percent) reported “only a little” and 19 communities (44 percent) reported “no, not at all.”46 As one respondent stated “[t]hey didn’t consult us, and we didn’t even receive any information.”47 One gets a much different view of food security and cultural continuity based on the responses to “new programs” that reflect the contemporary struggles for Indigenous self-determination and community autonomy over decolonizing food security and community regeneration strategies. The next section examines 42 Ibid at 48. 43 128 Indigenous nations and organizations from around the world responded to the IITC survey. 44 International Indian Treaty Council, Questionnaire on Indigenous Peoples’ Traditional Foods and Cultures Distributed by the International Indian Treaty Council (IITC) and submitted to the United Nations Food and Agriculture Organization (FAO) Rural Development Division (SDAR) (2003) at 9, online: International Indian Treaty Council IV. Restoration of Land-based and Water-based Cultural Practices Restoration can be viewed as both a goal and a process, and the process in this case is just as important as the outcome. Unfortunately, the rights discourse has stressed a goal-oriented function of restoration to the exclusion of community-driven restoration processes. In tandem with previously discussed processes of knowledge recovery, meaningful restoration entails a community process of redressing cultural harms and establishing viable strategies for reconnecting Indigenous peoples with their homelands. In a comprehensive United Nations (UN) study examining Indigenous peoples and their relationships to homelands (broadly construed as including water as well), Special Rapporteur Daes found that “it is difficult to separate the concept of Indigenous peoples’ relationship with their lands, territories and resources from that of their cultural differences and values. The relationship with the land and all living things is at the core of indigenous societies.”48 According to Daes, “the intergenerational aspect of such a relationship is also crucial to indigenous peoples’ identity, survival, and cultural viability.”49 In a subsequent report, Daes found that “[f]ew if any limitations on indigenous resource rights are appropriate, because the indigenous ownership of the resources is associated with the most important and fundamental of human rights: the rights to life, food, shelter, the right to self-determination, and the right to exist as a people.”50 This is the reason why Indigenous communities have been so adamant about asserting a right to subsistence living – their future survival as Indigenous nations depends on it. Cree activist Ted Moses discusses how self-determination and a right to subsistence are interrelated in this regard: “[w]e may not be denied our own means of subsistence ... We may not be denied the wherewithal for life itself – food, shelter, clothing, land, 48 Indigenous Peoples and their Relationship to Land: Final Working Paper/ Prepared by the Special Rapporteur, Erica-Irene A. Daes, UNESCOR, 53rd Sess, UN Doc E/CN 4/Sub 2/2001/21 (2001) at 7. 49 Ibid at 9. 50 Indigenous Peoples’ Permanent Sovereignty Over Natural Resources: Final Report of the Special Rapporteur, Erica-Irene A Daes, UNESCOR, 56th Sess, UN Doc E/CN 4/Sub 2/2004/30, (2004) at 15. Corntassel, Cultural Restoration in International Law n 107 water and the freedom to pursue a way of life. There are no exceptions to this rule.”51 Despite articulating a right to subsistence and self-determination through the global Indigenous rights discourse and international legal instruments, Indigenous activists have found that the resulting policies often reflect the values and practices of state governments rather than those of Indigenous communities. As discussed previously, relying strictly on a rights-based approach for the recognition of Indigenous land claims has extensive limitations. Within Canada, cases such as Kwakiutl Nation v Canada (A-G),52 which set a high threshold for First Nations to prove cultural loss, as well as the Haida Nation53 and Taku River Tlingit First Nation cases,54 which affirmed that Canada has a duty to consult with First Nations when rights are asserted, have been inconsistently applied and have failed to adequately address questions of cultural loss. International organizations such as the IACHR and the Inter-American Court of Human Rights (I/A Court HR) have directly addressed issues of cultural harm in their decisions, which have important ramifications for Indigenous peoples in Canada. Having ratified the Charter of the Organization of American States in 1990,55 Canada became a full member of the Organization of American States (OAS) and is bound by the numerous customary international legal principles, namely, the rights outlined in the American Declaration of the Rights and Duties of Man.56 Based on the American Declaration principles, the IACHR has the authority to examine petitions relating to alleged violations of the American Declaration and make general recommendations on human rights matters to all member states, even though Canada has not ratified the American Convention on Human Rights.57 51 Ted Moses, “The Right of Self-Determination and its Significance to the Survival of Indigenous Peoples” in Pekka Aikio & Martin Scheinin, eds, Operationalizing the Right of Indigenous Peoples to Self-Determination (Turku: Institute for Human Rights, Åbo Akademi University, 2000) 155 at 161. 52 Hereditary Nations of the Kwakiutl Nation et al v The Attorney General of Canada et al, 2004 BCSC 490, 4 CNLR 82. 53 Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, 3 SCR 511. 54 Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004 SCC 74, 3 SCR 550. 55 Charter of the Organization of American States, 30 April 1948, OASTS 61 (entered into force 13 December 1951). 56 American Declaration of the Rights and Duties of Man, April 1948, OR OEA/Ser.L.V/II 82/Doc 6, rev 1 (1948) [American Declaration]; See eg Mary and Carrie Dann v United States (2002), Inter-Am Comm HR, No 75/02, Annual Report of the Inter-American Commission on Human Rights: 2002, OEA/Ser L/V/II 117/Doc 1; Mayan Indigenous Communities of the Toledo District Toledo v Belize (2004), Inter-Am Comm HR, No 40/04, Annual Report of the Inter-American Commission on Human Rights: 2004, OEA/Ser L/V/II 122/Doc 5, which will be discussed in more detail below. 57 American Convention on Human Rights, November 22 1969, OASTS 36 (entered into force 18 July 1978) [ACHR]. 108 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts According to Amnesty International’s legal brief in Hul’qumi’num,58 which has been submitted before the IACHR, “the Commission considers that in many instances the Convention may be considered to represent an authoritative expression of the fundamental principles set forth in the American Declaration” and has previously applied the jurisprudence of the Inter-American Court in interpreting state obligations under the Declaration.”59 In Hul’qumi’num, the IACHR was petitioned to issue “precautionary measures” requiring Canada to consult with the Hul’qumi’num Treaty Group (HTG) before selling Hul’qumi’num ancestral homelands for logging by a private corporation. At the moment, the IACHR has granted the HTG a hearing on their land claim (October 2011) but issued recommendation has yet to be issued.60 While there has been limited success in advancing claims of Indigenous cultural harm/ injury in global forums and judicial bodies, such as the IACHR, no global forum has yet to hold Canada accountable to standards related to land-based and water-based cultural practices, homeland reclamation and subsistence. There are some global instruments and standards that provide insight into what effective community and cultural restoration ought to entail. In order to address questions of restorative justice, the UN General Assembly adopted a resolution in 2006 to implement Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.61 Resolution 60/147 sets out international standards for remedy and reparations for victims of gross violations of international human rights law. According to Resolution 60/147, restitution should restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property.62 Additionally, in taking a goal-oriented approach to restoration, Resolution 60/147 states that 58 Hul’qumi’num Treaty Group v Canada (2009), Inter-Am Comm HR, No 105/09, Annual Report of the Inter- American Commission on Human Rights: 2009, OEA/Ser.L/V/II./Doc.51 [Hul’qumi’num]. 59 Amnesty International, Amicus Curiae Case of the Hul’qumi’num Treaty Group v. Canada (Ottawa: Amnesty International, 2011) at 7-8, online: [c]ompensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case, resulting from gross violations of international human rights law and serious violations of international humanitarian law, such as: (a) Physical or mental harm; (b) Lost opportunities, including employment, education and social benefits; (c) Material damages and loss of earnings, including loss of earning potential; (d) Moral damage; (e) Costs required for legal or expert assistance, medicine and medical services, and psychological and social services.63 The “social benefits” outlined in “Part B” could be construed to include land-based and water-based cultural practices, and can be a useful starting point for assessing questions of justice and cultural restoration for Indigenous people. By formalizing global standards for restorative justice in Resolution 60/147, the UN also recognized that these rights already existed in several existing treaties, to which Canada is a signatory, such as the International Covenant on Civil and Political Rights at Article 2,64 the International Convention on the Elimination of All Forms of Racial Discrimination at Article 6,65 the Convention on the Rights of the Child at Article 39,66 and Articles 68 and 75 of the Rome Statute of the International Criminal Court.67 The most comprehensive Indigenous rights instrument in effect today is the Declaration, which was adopted by the UN General Assembly in 2007 (143 member states voted in favour).68 While initially voting against adoption of the Declaration (along with Australia, New Zealand and the United States), Canada has since reversed its previous position and formally endorsed the Declaration in 2010.69 While the Canadian government emphasized that the 63 Ibid at 7-8. 64 International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171, art 27, Can TS 1976 No 47, 6 ILM 368 (entered into force 23 March 1976, accession by Canada 19 May 1976) [ICCPR]. 65 International Convention on the Elimination of All Forms of Racial Discrimination, GA Res 2106 (XX), UNGAOR, 1966, Supp No 14, UN Doc A/6014 at art 6 (entered into force 4 January 1969, accession by Canada 14 October 1970). 66 Convention on the Rights of the Child, GA Res 44/25, UNGAOR, 1989, Supp No 49, UN Doc A/44/49 at art 39 (entered into force 2 September 1990, accession by Canada 13 December 1991). 67 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome Statute of the International Criminal Court, UN Doc A/Conf 183/9 at art 68, 75 (17 July 1998) [mimeo restricted]; Working group of the Commission on Human Rights to elaborate a draft declaration in accordance with paragraph 5 of General Assembly resolution 49/214 of 23 December 1994, UNGAOR, 61st Sess, UN Doc A/C 3/61/L 18/Rev 1, (2006) at 1. 68 Declaration, supra note 13. 69 Australia, New Zealand and the U.S. have also reversed their 2007 positions on the Declaration and 110 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts Declaration is a “non-legally binding document that does not reflect customary international law nor change Canadian laws,”70 international legal scholars such as S. James Anaya contend that the principles outlined in the Declaration still have political and legal force as they “are simply derived from human rights principles of equality and self-determination that are deemed of universal application.”71 When describing the potential of the Declaration to rectify injustices to Indigenous peoples, Anaya states by particularizing the rights of indigenous peoples, the Declaration seeks to accomplish what should have been accomplished without it: the application of universal human rights principles in a way that appreciates not just the humanity of indigenous individuals but that also values the bonds of community they form. The Declaration, in essence, contextualizes human rights with attention to the patterns of indigenous group identity and association that constitute them as peoples.72 Drafted by Indigenous activists, scholars and state delegates over the past three decades, the Declaration is comprised of 46 articles that mirror several international customary norms already in place.73 The main articles of interest are those which outline the rights of Indigenous peoples to restorative justice, including redress for any action which has the aim or effect of depriving them of their integrity as distinct peoples,74 their cultural traditions,75 their means of subsistence,76 their economic and social conditions,77 access to health and traditional medicines,78 the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise used and occupied lands, territories, waters and coastal seas and other resources,79 formally endorsed UNDRIP. 70 Aboriginal Affairs and Northern Development Canada, Media Release, “Canada’s Statement of Support on the United Nations Declaration on the Rights of Indigenous Peoples” (12 November 2010) online: Aboriginal Affiars and Northern Development Canada restitution for homelands taken,80 protection of the environment,81 protection of cultural heritage,82 reparation of adverse environmental, economic, social, cultural or spiritual impacts83 and effective remedies for all infringements against Indigenous peoples regarding their individual and collective rights.84 Provisions of the Declaration are also rooted in other international legal instruments. For example, the ICCPR, which Canada has ratified, outlines the right of minorities “to enjoy their own culture”.85 The applicability of Article 27 to Indigenous peoples was addressed in 1994 when members of the UN Human Rights Committee (HRC) observed that: Culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.86 The HRC provision closely parallels Article 25 of the Declaration as it focuses on the sustainability of Indigenous communities in terms of their ability to practice their land-based and water-based cultures.87 Additionally, based on previous applications of Article 27 to Indigenous peoples, it is clear that “international law safeguards indigenous peoples in their traditional territories from competing activities that would prevent them from continuously exercising, or make it more difficult for them to continuously exercise, their traditional livelihoods and other culture-based activities.”88 Canada has also ratified the Convention on Biological Diversity89 which closely correlates to Article 31 of the Declaration addressing the protection of Indigenous peoples’ cultural heritage. According to Article 8(j) of the CBD: 80 Ibid at art 28. 81 Ibid at art 29. 82 Ibid at art 31. 83 Ibid at art 32. 84 Ibid at art 40. 85 ICCPR, supra note 65 at art 27. 86 General Comment Adopted by the Human Rights Committee under Article 40, Paragraph 4, of the International Covenant on Civil and Political Rights/ Adopted by the Human Rights Committee, UNCCPROR, 50th Sess, UN Doc CCPR/C/21/Rev 1/Add 5 (1994) at 4. 87 Declaration, supra note 13 at art 25. 88 Mattias Åhrén, “The Provisions on Lands, Territories and Natural Resources in the UN Declaration on the Rights of Indigenous Peoples: An Introduction” in Claire Charters & Rodolfo Stavenhagen, eds, Making the DeclarationWork: The United Nations Declaration on the Rights of Indigenous Peoples (Copenhagen: International Work Group for Indigenous Affairs, 2009) 200 at 203. 89 Convention on Biological Diversity, 5 June 1992, 1760 UNTS 79, 31 ILM 818 (entered into force 29 December 1993) [CBD], online: Each contracting Party shall, as far as possible and as appropriate: Subject to national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge innovations and practices.90 Despite Canada’s ratification of the CBD, there have been no significant gains made under Article 8(j) as applied to Indigenous peoples in Canada since 1992. The above-mentioned examples support the tenet that Indigenous peoples may not be denied their own means of subsistence, while also demonstrating the remedial nature of the Declaration by grounding it in other international legal instruments. Overall, despite its conditional endorsement of the Declaration, Canada can still be held accountable to Indigenous peoples within its borders for policies that have caused and/or led to cultural harm and loss based on other international instruments to which Canada is a party. As noted, having ratified the Charter of the Organization of American States, Canada is required to followthe recommendationsof the IACHR and the I/A Court HR.91 One of the unique aspects of the I/A Court HR regarding a discussion of cultural harm and restoration is the recognition that “Indigenous people have the right to participate in decisions affecting them and that those decisions must reflect their customary law and culture.”92 Basically, Indigenous peoples must be allowed to participate meaningfully in these decisions and any consultations must be “culturally appropriate and procedurally adequate” to reflect community protocols and practices.93 Four I/A Court HR cases are directly relevant to the question of cultural harm and a legal obligation to provide a culturally relevant restoration framework for the return of Indigenous homelands as well as the regeneration of land-based 90 Ibid at 6. 91 See eg Hul’qumi’num, supra note 61. 92 Jo Pasqualucci, “The Evolution of International Indigenous Rights in the Inter-American Human Rights System” (2006) 6:2 HRLR 281 at 287. 93 Ibid at 288. Corntassel, Cultural Restoration in International Law n 113 and water-based cultural practices: Awas Tingni, 94 Masacre de Plan de Sánchez, 95 Yakye Axa96 and Sawhoyamaxa.97 In Mayagna (Sumo) Awas Tingni Community v Nicaragua, the I/A Court HR held that the government of Nicaragua had violated the right of the Mayagna community of Awas Tingni to protect their traditional territory by granting concessions to a multinational corporation to log on their homelands without consultation or consent from the communities living there. The I/A Court HR declared that Nicaragua has violated a right to property98 and a right to judicial guarantees99 by allowing foreign encroachment onto Indigenous homelands. According to the I/A Court HR, “[f]or indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.”100 Nicaragua was ordered to demarcate and title the corresponding lands of the Mayagna people and stop any further encroachment onto their traditional territory. While the I/A Court HR did not put many measures in place for the restoration of the Mayagna community’s cultural practices, this was a landmark case at the time in terms of recognizing community-held land rights based on the continuing cultural practices and customary use of their homelands. As geographers Wainwright and Bryans point out, however, the holding of the Awas Tingni case has yet to be fully implemented as “the community’s rights to land and resources remain as vulnerable as they ever have been.”101 As one example, the process of demarcating traditional Mayagna homelands has exposed gendered conceptions of territorial use. Based on their observations 94 Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua (31 August 2001), Merits, Reparations and Costs, Inter-Am Ct HR (Ser C) No 79, online: 102 Ibid at 642-643. 103 Ibid at 165. 104 Leonardo J Alvarado, “Prospects and Challenges in the Implementation of Indigenous Peoples’ Human Rights in International Law: Lessons from the Case of Awas Tingni v Nicaragua” (2007) 24:3 Ariz J Int’l & Comp L 609 at 638. 105 Ibid. 106 Wainwright and Bryans found a similar pattern and lack of implementation in the 2004 IACHR case of Maya Indigenous Communities of the Toledo District v Belize, which also dealt with the demarcation and protection of Indigenous homelands in Belize. Supra note 102 at 159. Corntassel, Cultural Restoration in International Law n 115 boys and the girls.”107 However, survivors were unable to bring this case forward until 1992 when they were able to inform state authorities regarding the location of the clandestine mass Maya Achí gravesites. When all attempts at domestic remedy failed, the case went before the IACHR in 2004. In an attempt to provide restitution for the cultural losses of elders, women and children, the I/A Court HR ordered Guatemala to take several steps regarding the Maya Achí community that was devastated by the massacre, as follows: • to acknowledge its international responsibility and publicly honour and commemorate those who were executed. According to the I/A Court HR holding the act should be carried out in the village of Plan de Sánchez, where the massacre occurred, in the presence of high-ranking State authorities and, in particular, in the presence of the members of the Plan de Sánchez community and the other victims in this case, inhabitants of the villages of Chipuerta, Joya de Ramos, Raxjut, Volcanillo, Coxojabaj, Las Tunas, Las Minas, Las Ventanas, Ixchel, Chiac, Concul and Chichupac108 • to translate into Maya Achí relevant abstracts of the judgements of the court; • to guarantee non-repetition of this massacre by providing resources for the collective memory of the Plan de Sánchez community; • to ensure, through the use of its health institutions, free medical and psychological treatment (individual as well as collective) and assistance to the members of the community of Plan de Sánchez; • to provide adequate housing for the survivors of the massacre who are still living in Plan de Sánchez and who wish to be so housed; and • to establish within the community of Plan de Sánchez and other indigenous communities of the area programs in order to: study and spread the Maya Achí culture within the affected community; maintain and improve the roads between the communities and the main village of the area; provide drinking water and a sewerage system to the communities; provide the personnel capable of ensuring bilingual and multilingual teachings in the schools of the area; create a Health 107 Plan de Sánchez Massacre, supra note 96 at paras 42(15)-42(17). 108 Case of the Plan de Sánchez Massacre v Guatemala (19 November 2004), Reparations, Inter-Am Ct HR (Ser C) No 105 at para 100, online: Centre.109 While the I/A Court HR could have gone further in helping the Maya Achí locate all of the people killed in the massacre,110 this was an attempt by the I/A Court HR to enact a culturally-relevant holding grounded in a philosophy of restorative justice. The 2005 case of Yakye Axa v Paraguay also addressed the notion of restitution for the violation of Indigenous peoples’ property rights. In this case, the Yakye Axa community demanded the return to its ancestral lands, which had been illegally claimed and occupied by a private owner. In its judgement, the Court asserted that the state is obligated to recognize the property rights of Indigenous peoples, even when their ancestral Indigenous lands have been granted by the state to private individual owners: As regards indigenous peoples, it is essential for the States to grant effective protection that takes into account their specificities, their economic and social characteristics, as well as their situation of special vulnerability, their customary law, values, and customs.111 The I/A Court HR, referring to Article 16(4) of ILO Convention Number 160, elaborated further that when a state cannot return ancestral lands to Indigenous peoples, it should, with the agreement of the interested people, attempt to find them alternative lands “of quality and legal status at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development.”112 If securing replacement lands was not possible, compensation for lands taken from Indigenous communities were to take into account “the meaning of the land for them.”113 In addition to the compensation for lands taken, Paraguay was ordered to: • establish a Community Fund for Development; • delimit and demarcate the ancestral lands of the Yakye Axa community; • provide safe drinking water, sewage, medical treatment to people in the community; • create an effective mechanism for delimitation, demarcation, and titling of the property of all Indigenous communities in Paraguay; • publicly recognize its international responsibility and issue an apology in the language(s) of the community; and 109 Ibid at paras 109-110; Citroni & Osuna, supra note 101 at 328-329. 110 Citroni & Osuna, supra note 101 at 329. 111 Yakye Axa, supra note 97 at para 63. 112 Ibid at para 150. 113 Ibid at paras 149-150. Corntassel, Cultural Restoration in International Law n 117 • publish relevant abstracts of the judgement of the IACHR in the language(s) of the community.114 While Yakye Axa was an important case for setting out key principles of cultural restoration within an Indigenous community, it overlooked several key aspects of a cultural revitalization process. First, the court failed to establish a community program to promote the cultural regeneration of the Enxet people. Additionally, the I/A Court HR holding was never translated into the Enxet language. Finally, Citroni and Osuna suggest that it may have been appropriate for the State to implement certain protective measures surrounding the Yakye Axa community’s return to their ancestral lands.115 In Sawhoyamaxa v Paraguay, the I/A Court HR was dealing with a similar situation to that of Yakye Axa. In order to determine adequate measures of restitution for Indigenous peoples of Enxet Lengua who had been displaced from their territories, the I/A Court HR for the first time introduced the concept of ‘devolution of traditional lands’ and ordered that the state could provide alternative lands to the community in case the devolution of their ancestral lands would not be possible.116 According to the I/A Court HR, “[w]hen a State is unable, on objective and reasoned grounds, to adopt measures aimed at returning traditional lands and communal resources to indigenous populations, it must surrender alternative lands of equal extension and quality, which will be chosen by agreement with the members of the indigenous peoples, according to their own consultation and decision procedures”.117 In sum, previous holdings made by the I/A Court HR have developed and reaffirmed an Indigenous right to live on their traditional homelands as well as rights to restitution, compensation, and the provision of replacement lands if necessary so that they may survive as Indigenous peoples while continuing their land-based and water-based practice for future generations. The Declaration and other instruments of international law have set out clear and effective principles that make Canada accountable to the promotion and strengthening of Indigenous peoples’ distinctive spiritual relationship with their traditional homelands, territories, waters and coastal seas and other resources. While there is an inherent Indigenous right to subsistence on their homelands, the implementation of previous international legal holdings is uneven at best when it comes to cultural restoration. While offering possible platforms for future action as standards for state accountability and 114 Ibid at para 242. See also Citroni & Osuna, supra note 101. 115 Supra note 101 at 336. 116 Sawhoyamaxa, supra note 98. 117 Ibid at para 135. 118 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts Indigenous aspirations, the rights discourse (both at the state and global levels) has not been an effective vehicle thus far for Indigenous restorative justice or liberatory praxis. Processes of cultural continuity and renewing roles and responsibilities cannot be effectively encompassed within a discourse filtered through state sovereignty and recognition. As stated earlier, the rights discourse can only take Indigenous peoples so far. Meaningful restoration is asserted by Indigenous nations, and rarely granted willingly by the state. In the section that follows, strategies for Indigenous regeneration take us beyond the political-legal architecture of rights to on-the-ground examples of Indigenous community revitalization in progress. V. Regenerating Indigenous Nationhood As previously discussed, decolonization is about moving from performance to everyday practices of resurgence.118 Within a context of decolonization, these practices are undertaken in the spirit of digadatsele’i and a daily renewal of the “cultural, spiritual, social exchange that’s intended to go on for generations.”119 According to Alfred, who examines colonialism and state dependency within a Canadian context, a process of Indigenous regeneration includes collective community efforts to achieve the following objectives: (1) The restoration of Indigenous presences on the land and the revitalization of land-based practices; (2) An increased reliance on traditional diets among Indigenous people; (3) The transmission of Indigenous culture, spiritual teachings and knowledge of the land between Elders and youth; (4) The strengthening of familial activities and re-emergence of Indigenous cultural and social institutions as governing authorities within First Nations; and (5) Short-term and long-term initiatives and improvements in sustainable land-based economies as the primary economies of reserve based First Nations communities and as supplemental economies for urban Indigenous communities.120 While the above-listed indicators of cultural regeneration offer several promising pathways to community revitalization, the adequacy of these measures will vary from community to community. I draw on two comparative examples to flesh out the complexities of cultural regeneration: one from 118 Supra note 10. 119 Supra note 23. 120 Alfred, “Colonialism”, supra note 41 at 56. Corntassel, Cultural Restoration in International Law n 119 Kanaka Maoli (Hawaiian people) and one from the Quechua peoples in Peru. Both examples will be linked back to specific Indigenous movements in Canada relating to cultural restoration and resurgence. VI. Auwai and Lo’i at ‘Aihulama Kalo (taro) is a sacred plant and is considered an elder sibling to the Kanaka Maoli people. Prior to European invasion, lo’i kalo fields covered at least 20,000 acres (90 square kilometres) over six islands in the Hawaiian archipelago. Today, after more than 100 years of United States occupation, less than four hundred acres (1.6 square kilometres) of lo’i kalo remain.121 Recently, the Hàlau Kû Mäna (HKM) public charter school students and teachers began rebuilding the ‘auwai and lo’i at ‘Aihulama, which is the first time it had been functioning in over a century. As Goodyear-Ka’ōpua points out, “the project of rebuilding ‘auwai and lo’i at ‘Aihualama can be seen as part of a larger effort to rebuild indigenous Hawaiian agricultural and educational systems”.122 Since their first taro planting under the full moon in 2006, “students in Papa Lo’i have opened approximately one new field per year, and learned and practiced all phases from putting huli in the ground to putting ‘ai (food, especially pounded kalo) in people’s mouths.”123 When I was invited along with other Indigenous Governance faculty and students to visit the lo’i kalo in 2010, we had several opportunities to work alongside the HKM students at ‘Aihualama and they talked about how much they have learned about their responsibilities to the land/waterways as well as Kanaka Maoli food security from their semester work in the lo’i kalo. For several of these youth and participants, this was a transformative experience but it was also something deeper. It was the regeneration of sustainable Hawaiian technologies by putting them back into everyday practice. Furthermore, distinctions between education and cultural practice were blurred. Several of the kumu and students also spoke about their kuleana to the lo’i, which roughly translates into responsibility, sphere of authority and family. Goodyear-Ka’ōpua discusses the significance of rebuilding of ‘auwai and lo’i kalo (wetland taro field) as going beyond viewing the ‘auwai as a “material technology” but “also as a form of indigenous Hawaiian theory, with its basis in the ancestral, landed practices of Kanaka Maoli.”124 In the “strategies and non-negotiables” section of her paper, Goodyear-Ka’ōpua 121 Noelani Goodyear-Ka’ōpua, “Rebuilding the ‘auwai: Connecting ecology, economy and education in Hawaiian schools” (2009) 5:2 Alternative 46 at 53. 122 Ibid at 61. 123 Ibid at 64. 124 Ibid at 49. 120 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts outlines four goals that overlap with Alfred’s measures which also apply to the Hawaiian context: ‘Āina (land) is paramount; water is essential to life; regular and consistent protocols; and Lo’i teaches us work ethics.125 This is where practice departs from performance as Kanaka Maoli act on their kuleana to the land and water as well as their relatives. The regeneration of the Auwai and Lo’i at ‘Aihulama in Hawai’i has parallels to the revitalization of the kwetlal (camas) food systems on Lekwungen homelands in Victoria, British Columbia. For over eleven years, Cheryl Bryce126 has initiated public efforts to remove invasive species, such as Scottish Broom (Cytisus scoparius), which were intentionally introduced to British Columbia, Canada, from Europe. Since its introduction to Vancouver Island in 1850, Scottish Broom has threatened native plant species, such as Garry Oak ecosystems and kwetlal, as it has overtaken these and other eco- cultural systems throughout the island. Consequently, a key part of the cultural restoration process in Lekwungen is the removal of invasive species that threaten the future well-being of kwetlal and other traditional plants. Cheryl, her family and community youths have been working on their territory to remove invasive species as well as harvest and traditionally pitcook the kwetlal. However, invasive species removal undertaken in Lekwungen takes place on “public park lands”, such as Meegan (also known as Beacon Hill Park), and is prone to challenges by authorities and local citizens over competing jurisdictional claims. In order to recruit greater assistance for her efforts, Cheryl founded a “Community Tool Shed” in 2011 to establish a network of students and interested residents to work together towards reinstating traditional food systems.127 There is a strong educational component to this work as Cheryl has developed maps of Victoria with traditional place names and has also spoken to several school groups and residents about the history of the region as well as their obligations to the kwetlal food systems in Lekwungen territories.128 According to Cheryl, “[t]he Garry Oak Ecosystem is a living artifact of my ancestors. The Lekwungen people will continue to harvest and pitcook kwetlal for many years to come. Its importance is vital to our history, traditions and future generations.”129 125 Ibid at 69. 126 Cheryl Bryce is currently the Indigenous Research Coordinator with the Vancouver-Island Public Interest Research Group (VIPIRG). 127 See The mentorship and educational practices that Cheryl and Noelani demonstrate are also present in other communities where cultural losses are being confronted. The Akwesasne Mohawks, for example, have developed a comprehensive master-apprenticeship program to equip “masters” with the necessary tools, supplies and support and connect them with an appropriate number of “apprentices” drawn from younger Akwesasne individuals who have expressed interest and demonstrated commitment to restoring the cultural practices of their community. These long-term master-apprentice relationships focus on four, community-identified areas of traditional cultural practice that were harmed by the release of hazardous contaminants (for example, hunting and fishing, medicine plants and healing, etc.), and promote the regeneration of practices associated with traditions in these areas. Overall, one sees that grassroots efforts do not rely heavily on rights but rather community responsibilities to protect and nourish traditional homelands and food systems. By resisting colonial authority and demarcating their homelands via place-naming and traditional management practices, these everyday acts of resurgence have promoted the regeneration of sustainable food systems in community and are transmitting these teachings and values to future generations. VII. Parque de la Papa Located within the Cusco Valley in Peru, the Potato Park (Parque de la Papa) is “home to eight known native and cultivated species and 2,300 varieties” of the over 4,000 varieties of potatoes found throughout the world.130 The park is founded on the Quechuan practice of ayllu, which is understood as “a community of individuals with the same interests and objectives linked through shared norms and principles with respect to humans, animals, rocks, spirits, mountains, lakes, rivers, pastures, food crops, wild life etc.”131 According to Argumedo and Wong, the main objective of the ayllu system is the attainment of “well-being” (Sumaq Qausay). But this term holds a much deeper meaning. A basic value of Sumaq Qausay is “solidarity, expressed as ayni or sacred reciprocity.”132 Similar to a Cherokee practice of digadatsele’i, ayni entails relying on “reciprocal arrangements with neighbours and kin based 130 Alejandro Argumedo & Bernard Yun Loong Wong, “The ayllu system of the Potato Park (Peru)” in Caroline Bélair et al, eds, Sustainable use of biological diversity in socio-ecological production landscapes (Montreal: Secretariat of the Convention on Biological Diversity, 2010) 84 at 86. 131 Ibid at 84. 132 Alejandro Argumedo & Michel Pimbert, “Bypassing Globalization: Barter markets as a new indigenous economy in Peru” (2010) 53:3 Development 343 at 344. 122 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts on obligation, loyalty, social and ritual debts.”133 By practicing these familial obligations and responsibilities, community resilience and sustainability is achieved. In accordance with Quechuan values, the Potato Park is locally managed as an “Indigenous Biocultural Heritage Area” (IBCHA), which is a merging of “community-led and rights-based approach to conservation based on indigenous traditions and philosophies of sustainability, and the use of local knowledge systems”.134 Despite ongoing colonial encroachment, the families living in the park demonstrate resilience and have worked with Asociación ANDES to establish several “economic collectives”, including the Potato Arariwas (a seed repatriation and conservation collective), the gastronomy Qachun Wquachi collective, the Tika Tijillay women’s video collective, the Naupa Awana craft collective, the Willaqkuna guides collective and the Sipaswarmi Medicinal Plants Collective.135 Indigenous women have anchored the Potato Park’s cultural revitalization movement. The women are also the ones who “participate directly in the barter markets, who set the rules and mechanisms of negotiation. They also administer the use of the foods in the households.”136 According to Argumedo and Pimbert, Quechuan women are “like hubs of multi- level management, ensuring that productive processes are integrated with household needs, exchanging produce in the barter markets, and supervising food habits and patterns.”137 With an emphasis on protecting and nourishing local subsistence practices based on reciprocity and ayllu systems, the Potato Park is an Indigenous regeneration movement that exercises self-sufficiency and community responsibility via land-based cultural practices. Similar to the leadership roles that Indigenous women play in Potato Park, Indigenous women in Canada have begun reasserting their self- determining authority to protect their relationships to water. Given the close relationship between water and community health as well as threats posed by the pollution of water, Indigenous women have initiated a “Water Walkers” movement in Wikiwemikong Unceded First Nation in Ontario, Canada. The threat, as Nishnaabekwe Elder Josephine Mandamin points out, is that “anything wrapped in plastic dies.”138 Given the massive amounts of bottled 133 Ibid. 134 Supra note 131 at 84. 135 Ibid at 88. 136 Supra note 133 at 345. 137 Ibid. 138 Kim Anderson, “Aboriginal Women, Water and Health: Reflections from Eleven First Nations, Inuit, and Métis Grandmothers” (Paper commissioned by The Atlantic Centre of Excellence for Women’s Health & The Prairie Women’s Health Centre of Excellence, October 2010) at 20, online: Prairie Women’s Health Centre of Excellence < http://www.pwhce.ca/pdf/womenAndWater.pdf>. Corntassel, Cultural Restoration in International Law n 123 water being consumed each year, she asks “Are we feeding our people dead water?”139 According Nishnaabekwe scholar Renée Elizabeth Mzinegiizhigo- kwe Bédard, “[s]piritually, it is the women who are responsible for praying to the water and caring for the water during ceremonies, and, as we near the end of the first decade of the twenty-first century, it is not surprising that Nishnaabeg women are standing up to protect the water.”140 The Water Walkers began in the winter of 2002 as a group of women discussed traditional teachings, roles of women and water songs. According to one of the leaders of this movement, Josephine Mandamin, they asked themselves, “[w]hat can we do to bring out, to tell people of our responsibilities as women, as keepers of life and the water, to respect our bodies as Nishnaabe- kwewag, as women?”141 They decided as a group to undertake a spiritual walk around the entire perimeter of Lake Superior with buckets of water to raise awareness of the need to protect water. According to Josephine, “[t]his journey with the pail of water that we carry is our way of Walking the Talk … Our great grandchildren and the next generation will be able to say, yes, our grandmothers and grandfathers kept this water for us!!”142 Movements to regenerate relationships with water, food and the land have taken place in other Indigenous communities throughout Canada and research, such as Anderson’s recent report on Indigenous women and water, is just beginning to highlight the decolonizing movements mobilizing around concerns over cultural loss and harm.143 After all, the roots of the Haudenosaunee recovery of their original territory (Haldimand Tract in Caledonia, Ontario) began when Six Nations’ spokeswoman for the hereditary chiefs, Janie Jamieson, organized a potluck to commemorate the history of the territory. This led to the Rotinoshon’non:we (Six Nations Confederacy) Clan Mothers reasserting their authority as legitimate representatives of the Six Nations peoples and true title holders of their homelands.144 This and other movements led by Indigenous women highlight critical community shifts from performance to everyday practices of resurgence and regeneration. 139 Ibid. 140 Renée Elizabeth Mzinegiizhigo-kwe Bédard, “Keepers of the Water: Nishnaabe-kwewag Speaking for the Water” in Leanne Simpson, ed, Lighting the Eighth Fire: The Liberation, Resurgence, and Protection of Indigenous Nations (Winnipeg: Arbeiter Ring Publishing, 2008) 89 at 89. 141 Ibid at 103. 142 Ibid at 104. 143 Supra note 139. 144 Laura Parisi & Jeff Corntassel, “A ‘Revolution within a Revolution’: Indigenous Women’s Diplomacies,” in J Marshall Beier, ed Indigenous Diplomacies (New York: Palgrave Macmillan, 2009) 79. 124 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts VIII. Conclusions When discussing questions of Indigenous community regeneration and sustainability, it becomes evident from the previous research and case examples that revitalizing land-based and water-based cultural practices is premised on enacting community responsibilities, which “entails sparking a spiritual revolution rather than seeking state-based solutions that are disconnected from indigenous community relationships.”145 Processes of recovery, restoration and regeneration take on a renewed urgency given the high stakes of dispossession and disconnection from Indigenous territories. How, then, does one begin to gauge cultural loss within a community context? Establishing a historical baseline that is derived from community oral histories and interviews is critical to understanding how cultural practices were interrupted or altered to reflect encroachment, contamination or other forms of disruption to sustainable self-determination. As Turner et al points out, basing the extent of cultural injury on current conditions runs counter to current findings in economic theory and applied research on valuing cultural loss.146 Ultimately, Indigenous peoples need to be able to express the impacts of colonialism and disconnection from the land on their own terms. By establishing a historical baseline and identifying meaningful indicators of cultural loss/injury, whether through applied ethnographic research, direct assessment of loss of resource use, habitat and resource equivalency or the stated preferences of Indigenous peoples within the affected communities,147 one gains a clearer picture of what meaningful restoration and regeneration would look like. Critical areas of cultural injury offer some possibilities for how these discussions and future strategies can unfold: • water, fishing and river use; • horticulture, farming and basket-making; • medicine plants and healing; • hunting and trapping; • well-being of children, youth and families; • food security and sustainable livelihoods; and 145 Corntassel, “Toward”, supra note 12 at 124. 146 Supra note 33 at 9. 147 Robert E Unsworth & Taiaiake Alfred, “An Introduction to Tribal Natural Resource Damage Claims” (Paper delivered at the Law Seminars International Conference on Natural Resource Damages, 14-15 2011) at 4. Corntassel, Cultural Restoration in International Law n 125 • the transmission of community knowledge to future generations. Rather than assessing cultural loss as strictly a compensatory claim, meaningful restitution should be premised on paying the costs necessary to regenerate specific land-based and water-based practices. The role of mentorships and apprenticeships is key to initiating a process of community regeneration that takes Indigenous peoples beyond performance and into the realm of everyday practice. Change of this magnitude tends to happen in small increments, “one warrior at a time.”148 Elders and teachers will need to ready themselves for the renewed responsibilities of assisting others in their reconnections to land, culture and community. According to Alfred, “[m] easurable change on levels beyond the individual will emanate from the start made by physical and psychological transformations in people generated through direct, guided experiences in small, personal groups and one-on-one mentoring.”149 These are changes that also begin within families by embracing the practice of digadatsele’i. As Alfred points out, “[o]ur children should have the opportunity to live more Indigenous lives than we do.”150 By understanding the overlapping and simultaneous processes of recovery, restoration and regeneration, we begin to better understand how to implement meaningful and substantive community decolonization practices. Future generations will map their own pathways to community regeneration, ideally on their own terms. By moving from performance to everyday cultural practice, this is how our ancestors, along with future generations, will recognize us as indigenous to the land. And this is how our homelands will recognize us as being indigenous to that place. 148 Taiaiake Alfred & Jeff Corntassel, “Being Indigenous: Resurgences Against Contemporary Colonialism” (2005) 40:4 Government & Opposition 597 at 613. 149 Alfred, “Colonialism”, supra note 41 at 56. 150 Taiaiake Alfred, Reclaiming Ćelánen: Land, Water, Governance, Lecture notes (Indigenous Governance Program, University of Victoria, 19 July 2011). 126 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts Conscientious Objection to Creating Same-Sex Unions: An International Analysis Bruce MacDougall,1 Elsje Bonthuys,2 Kenneth McK. Norrie3 & Marjolein van den Brink4 In jurisdictions that recognize same-sex marriages and unions, the question arises as to the extent to which civic officials who normally preside at such unions can refuse such participation for religious reasons. This paper examines this issue in the context of four jurisdictions: Scotland, Canada, the Netherlands and South Africa. What is striking is how different is the process of reaching a resolution in each jurisdiction, though the actual result might be the same. This difference arises because of the jurisdiction-specific reasons why same-sex marriages and unions are recognized, how they are recognized, the status of the officers who preside over the relevant services, and the historical-legal place of religion in each jurisdiction. Against these backgrounds, reasonably similar arguments relating to discrimination and accommodation are raised, but play out differently given the varying contexts. There results from this comparative analysis some lessons that can be transported across jurisdictions but also considerable caution as to the generic quality of such lessons. Dans les juridictions qui reconnaissent les mariages et les unions entre personnes du même sexe, une question survient quant au sujet du droit des officiants présidant à ces unions de refuser d’y participer pour des raisons religieuses. Cet article examine la question dans quatre pays: l’Écosse, le Canada, les Pays-Bas et l’Afrique du Sud. Bien que chaque juridiction résout cette question par un processus différent, la solution retenue est semblable. Ces approches différentes sont dues aux circonstances nationales particulières quant aux raisons pour lesquelles les mariages et unions entre personnes du même sexe sont reconnus, comment ils sont reconnus, le statut des officiants qui y président ainsi que le rôle légal et historique de la religion. Dans ces contextes, des arguments semblables reliés à la discrimination et l’accommodation sont soulevés mais se répercutent de façon différente dépendant du contexte national. De cette analyse comparative ressortent des conclusions qu’il est possible d’appliquer aux autres juridictions, sans toutefois les généraliser. 1 Professor of Law, University of British Columbia, Vancouver. 2 Professor of Law, University of the Witwatersrand, Johannesburg. 3 Professor of Law, University of Strathclyde, Glasgow. 4 Universitair Docent (Lecturer in Law), Utrecht Law School, University of Utrecht. 128 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts I. Introduction he issue of whether same-sex couples should be able to enter into marriage or an equivalent institution has been addressed in many Tjurisdictions in the past two decades. Those legal systems that have either created some form of legally-recognized same-sex partnership or opened the existing institution of marriage to such couples, have each faced difficult legal questions. One such question concerns whether or not government- employed or government-authorized persons (referred to here generically as “marriage officers” when not referencing a particular jurisdiction) may refuse to participate in the formalization of a same-sex union for religious reasons. On the one hand, it may be argued that states should respect the religious and conscientious scruples of their citizens and should not discriminate against marriage officers who claim that their religious convictions prevent them from conducting marriages or civil unions between same-sex couples. On the other hand, it may be argued that allowing state employees to refuse to do so perpetuates the very discrimination that the institutionalization of same-sex unions aims to abolish. This article compares the different attempts at resolving this conflict in four jurisdictions: the Netherlands, South Africa, Scotland, and Canada. The primary purpose of the paper is to analyze both the nature of the complexities which arise in each jurisdiction as they attempt to resolve the conflict, as well as the practice of using arguments concerning discrimination and accommodation in order to seek such resolution. We will also discuss how these issues reflect the complexity of the larger issue of whether and how to extend legal recognition to formalized same-sex couples. This discussion will shed some light on the more general issue of the ability to transplant the legal resolutions from one jurisdiction to another. The selected jurisdictions were chosen based on the areas in which each of the authors have conducted their research. These jurisdictions provide a useful context in which to situate a comparative analysis both because of their legal and social similarities, as well as the differences which are not immediately apparent. From a legal perspective all four jurisdictions have reputations for being progressive and each has its roots in some European tradition. In South Africa, however, the Roman-Dutch common law is accompanied by customary law, which may carry less legal weight, but may be more influential in the lives of a greater proportion of the population. Our chosen jurisdictions are all places where there is legal acceptance of homosexuality5 (decriminalization, protection from discrimination, relationship recognition) despite having 5 We deal only with what might be called “traditional” homosexuals: gay men and lesbians. Going beyond these categories would of course add yet another layer of complexity to the study. MacDougall et al, Conscientious Objections to Creating Same-Sex Unions n 129 differing degrees of social hostility towards it. They are all places where, because of immigration or political changes or both, there is some social or political flux in progress. As well, the jurisdictions are sufficiently different so as to generate questions about the ability to transport legal analyses or solutions to such socio-legal issues across jurisdictions. The specific legal system in each jurisdiction is in fact different: a common law system with civilian roots in Scotland; Roman-Dutch common law in South Africa; civil law in the Netherlands; a mixture of the English common law and the French civil law in Canada. Different also have been the various responses to the common problem – how to accommodate same-sex couples within a system of family regulation that seeks to avoid discrimination on the basis of sexual orientation. The basic concepts are often the same but the history of legal developments affecting this issue is quite different in each jurisdiction. The way in which homosexuality and religious expression or ideas are legally protected in each jurisdiction is different. It is clear that the legal issue concerning the accommodation of each must be resolved in harmony with other historical legal developments in the given jurisdiction. To a certain extent, then, this paper is a critique of the assumption that legal solutions to these (and similar) issues can simply be transported across borders to somewhat similar jurisdictions. The underlying issues that make this simple transport complicated or impossible will be evident from the discussion here. A signal service of comparative analysis is to problematize easy and adoptive solutions, however the main aim of this paper is to investigate which concepts, analyses, and solutions can transcend the boundaries between somewhat similar jurisdictions. The determination of which lessons and approaches might be adopted or adapted by the jurisdictions in question is also an important aspect of a comparative legal analysis such as this one. Our primary concern is not the ability of religious officials to refuse to conduct same-sex marriages within their religious institutions or contexts. We accept (and, in fact, it is not much disputed) that religious institutions are entitled to conduct (or not conduct) marriages according to their own tenets and doctrines. We focus, rather, on civil servants (or their equivalents) who act as marriage officers and who object to participating in the legal institutionalization of same-sex unions. 130 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts II. Background: The Religious Associations of Marriage Marriage is an institution laden with symbolism and deep social importance. Though the historical association of religion in the institution of marriage is common in each of the jurisdictions being considered here, there are different assumptions about the degree to which religious ideology may inform legal issues relating to marriage, including its very definition. Moreover, for many people and in most societies the institution of marriage remains linked with religious norms.6 A. The Netherlands The Netherlands, where marriage – legally-speaking at least – has been an exclusively civil affair since 1795,7 is, among the considered jurisdictions, the one where religious bodies have least influence over the institution of marriage. This is probably due to the fact that Calvinism, the major religious tradition in the country, did not regard marriage as a sacrament, but as primarily a secular issue. Marriages officiated by religious representatives lack legal effect and religious weddings prior to the conclusion of a civil legal marriage are forbidden. A religious representative who performs such a premature religious wedding may be criminally sanctioned.8 Nevertheless, marrying couples often have religious ceremonies after the conclusion of the civil ceremony. Despite this long history of secularization of marriage, providing religious marriages with legal effect has been frequently debated and re-considered, most recently in 2001.9 Although secular authority over the institution of marriage has prevailed, the wish to reintegrate religion into marriage ceremonies persists in some quarters, carrying potentially detrimental consequences for same-sex couples. B. South Africa In 1652 the laws of Holland (which was at the time a province of what is now the Netherlands) were transported into South Africa by colonial occupation. At that time, marriages were preceded by the publication of banns and could 6 Robert Leckey, “Profane Matrimony” (2006) 21 CJLS 1. 7 L Westerhof, “Civiel effect voor het kerkelijk huwelijk?” [Legal Effect for the Church Marriage?] (2002) 77 NJB 80. 8 Art 1:68 BW (Burgerlijk Wetboek) [Dutch Civil Code]. 9 See Netherlands, Tweede Kamer, Kamerstukken II, Vergaderjaar 2001-2002, 28078 Burgerlijk huwelijk en kerkelijk huwelijk [Civil Marriage and Church Marriage], No 1 “Brief van de Staatssecretaris van Justitie” [Letter of the Deputy Minister of Justice] (5 November 2001). It is quite telling that in the Netherlands, religious marriage is still referred to as “church marriage”. MacDougall et al, Conscientious Objections to Creating Same-Sex Unions n 131 be concluded either in a church or by a magistrate.10 Civil marriage before a state official was introduced in South Africa in 1804. Subsequently there were periods when marriages were concluded only in churches, as well as other brief periods when marriage was concluded only by secular authorities. Mostly, and with small variations between the four territories and states which would eventually form South Africa in 1910, marriages could be concluded either by religious or state authorities.11 The adoption of the Marriage Act, 196112 standardized the different marriage laws in the four provinces. The current position is that marriages can be conducted either by state functionaries, or by religious officials who comply with the statutory requirements.13 The influence of Christianity on the legal definition and consequences of marriage in South Africa was manifest in various rules such as the prohibition of marriages between people who had committed adultery with one another,14 or the refusal to recognize the validity of Islamic marriages on the basis that they were “potentially polygamous”.15 The picture is further complicated by the historical and contemporary recognition of traditional African marriages,16 although these marriages have been regarded as lower status17 than civil marriages in terms of the Marriage Act, 1961. Many of the explicitly Judeo- Christian features of civil marriage have since been removed and therefore civil marriage can no longer simply be equated with religious marriage; however, some religious overtones remain, such as the insistence that civil marriage must be monogamous. In fact, the creation of separate legislation to cater for same-sex marriage is arguably motivated by the desire to maintain a form of marriage which would be acceptable to the Christian majority in South Africa. 10 As a result of the Political Ordinance of the States of Holland, adopted in 1580. For a historical overview, see HR Hahlo, The South African Law of Husband and Wife, 5th ed (Cape Town: Juta, 2005) ch 1. 11 See June D Sinclair & Jacqueline Heaton, The Law of Marriage: Based on H.R. Hahlo, the South African Law of Husband and Wife, vol 1 (Cape Town: Juta, 1995) ch 2. 12 (S Afr), No 25 of 1961. 13 Sections 2-10 of the Marriage Act, 1961, ibid, deal with the appointment of marriage officers and sections 12, 22, 24-30 set out the requirements for a valid marriage. In addition, the common law also regulates other aspects of the capacity to marry. 14 Cloete v Resident Magistrate of Elliot, 1914 CPD 1075. The Appellate Division in Green v Fitzgerald, 1914 AD 88, however, declared that adultery was no longer a crime. 15 Ismail v Ismail, 1983 (1) SA 1006 (A). 16 Currently enabled by the Recognition of Customary Marriages Act, 1998 (S Afr), No 120 of 1998. 17 Likhapha Mbatha, Najma Moosa & Elsje Bonthuys, “Culture and Religion” in Elsje Bonthuys & Catherine Albertyn, eds, Gender, Law and Justice (Cape Town: Juta, 2007) 158. 132 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts C. Scotland Scotland retained a closer connection between faith and marriage despite having somewhat similar connections to Calvin as existed in the Netherlands and South Africa. The reason was that, after the Reformation, canon law remained the law of the land except insofar as it was inconsistent with the reformed faith, and no such inconsistency was perceived in continuing the tradition of church ministers solemnizing marriages. Marriage could be solemnized in Scotland only by religious ceremony until 1940, when the Marriage (Scotland) Act 1939 came into force, permitting civil marriage celebrated by a secular state official, in addition to religiously conducted marriage.18 The dominant Church of Scotland’s (“the Kirk’s”) doctrinal interpretations of scripture continued to influence the law’s conception of marriage and how it should be controlled, well into the 20th century.19 D. Canada Distrust among the four original Canadian provinces, in particular between the French-speaking (largely Catholic) and the English-speaking (largely Protestant) provinces, over the role of religion in marriage and, particularly, divorce20 was so fundamental that it influenced Canada’s constitutional division of powers in 1867.21 The result is that the federal government defines marriage,22 but the provinces are in charge of the solemnization of marriage.23 That is to say, the provinces (and territories) decide how marriages are conducted - including who is authorized to perform them. Currently, all Canadian jurisdictions recognize most religious marriages without the need for a separate state ceremony, although the provinces still issue marriage licences. In addition, the provinces (and territories) facilitate the performance of secular or civil marriages. 18 After the Reformation the celebration of marriage fell within the exclusive jurisdiction of the Kirk (the Established church in Scotland), but the Marriage (Scotland) Act, 1834 (UK), 4 & 5 Will IV, c 28, permitted religious celebrants from churches other than the Church of Scotland. 19 See Jane Mair, “Public Ceremony and Private Belief: The Role of Religion in the Scots Law of Marriage” [2007] 4 Jurid Rev 279. 20 See FJE Jordan, “The Federal Divorce Act (1968) and the Constitution” (1968) 14:2 McGill LJ 209. 21 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5. 22 Ibid, s 91(26). 23 Ibid, s 92(12). MacDougall et al, Conscientious Objections to Creating Same-Sex Unions n 133 III. The Institutionalization of Same-Sex Unions Each of the four jurisdictions under consideration here has in the past couple of decades dealt with demands for the recognition of same-sex relationships within a wider context of providing legal recognition to family formations outside of traditional marriage. As a result of the different legal and social contexts within these jurisdictions, there have been significantly varied responses to these demands. A. The Netherlands The Netherlands introduced legally-recognized registered partnerships for both same and opposite-sex couples in 1998.24 Other than having fewer formalities for dissolution, registered partnerships are legally equivalent to marriage and can easily be converted into marriage or vice versa.25 Three years later same-sex couples gained access to the institution of marriage itself26 and article 1:30(1) of the Dutch Civil Code now explicitly states: “A marriage can be entered into by two people of different or same sex.”27 Ironically, this opening up of marriage to same-sex couples provided the impetus for a proposal to re-introduce legally-effective religious marriages. GroenLinks, a left wing “green” party, proposed to lift the ban on marriages conducted by religious officials so as to accommodate orthodox Christians who strongly opposed the new legislation.28 Like its predecessors, the proposal did not get much support, even from the groups which it intended to 24 Wet van 5 juli 1997 tot wijziging van Boek 1 van het Burgerlijk Wetboek en van het Wetboek van Burgerlijke Rechtsvordering in verband met opneming daarin van bepalingen voor het geregistreerd partnerschap [Act of 5 July 1997 to Amend Book 1 of the Civil Code and the Code of Civil Legal Procedure in Connection with the Inclusion of Provisions Regarding Registered Partnership], Stb 1997, 324. The act entered into force on 1 January 1998. 25 Katharina Boele-Woelki et al, Huwelijk of geregistreerd partnerschap?: Een evaluatie van de Wet openstelling huwelijk en de Wet geregistreerd partnerschap in opdracht van het Ministerie van Justitie [Marriage or Registered Partnership?: An Evaluation of the Act Opening Civil Marriage to Same-Sex Couples and the Act Introducing Registered Partnership, Commissioned by the Ministry of Justice] (The Hague: Ministerie van Justitie, 2006); Kees Waaldijk, ed, More or Less Together: Levels of Legal Consequences of Marriage, Cohabitation and Registered Partnership for Different-Sex and Same-Sex Partners: A Comparative Study of Nine European Countries (Paris: Institut national d’études démographiques, 2004); I Curry- Sumner, “Private International Law Aspects of Homosexual Couples: The Netherlands Report”, online: (2007) 11.1 EJCL 8 By way of contrast to the Netherlands, where same-sex couples are fully included in the institution of marriage, in Scotland marriage remains the exclusive preserve of opposite-sex couples, while same-sex couples have exclusive access to an equivalent and entirely statutory institution. The Civil Partnership Act 2004 adopts what might be called an “equivalence model”, creating an institution exclusively for same-sex couples, called “civil partnership”. Civil partnership is equivalent to, but separate from, the existing institution of marriage that remains exclusively for opposite-sex couples. 30 Civil partnership may be equivalent to marriage, but it is, quite intentionally, an entirely secular institution. So, for instance, registrars do not “solemnize” civil partnerships, for that language brings to mind the solemnities of religious ritual, which is reserved for marriage. Instead, civil partnerships are “registered” (even though many do so in the course of individually designed and legally non-sanctioned ceremonies). The secularity of the new institution is further emphasized by the rule that the registration may occur in any place in Scotland, except any place that is or has been used solely or mainly for religious purposes.31 Both in Canada and South Africa the recognition of same-sex relationships was preceded by Law Commission investigations into the various possibilities for giving legal effect to non-marital conjugal relationships,32 which were overtaken by successful constitutional challenges to the exclusively opposite- 29 C.f. Staatkundig Gereformeerde Partij, Daad bij het Woord: De SGP stáát ervoor! Verkiezingsprogramma SGP, 2010-2014 [Act by the Word: The SGP Stands for It! Political Programme of the Dutch Calvinist Party], online: SGP sex marital regime.33 This, in turn, resulted in national legislation opening marriage to same-sex couples. C. South Africa The South African Civil Union Act, 2006 allows for the solemnization of civil unions between two same-sex or opposite sex partners, either by a religious institution or by a state official.34 The provisions relating to the place and formalities for the solemnization of civil unions mirror those applying to marriage. Additionally, at the time of solemnization the “marriage officer must inquire from the parties…whether their civil union should be known as a marriage or a civil partnership,”35 and the certificate of registration will indicate that the parties have either entered into a marriage or a civil union.36 The consequences of a civil union are exactly on par with those of marriage.37 Thus, civil unions are institutions that share all of the characteristics and consequences of marriage; they can even be registered as a marriage, though the existing marriage regime, which is limited to opposite-sex couples, is retained, albeit rather clumsily. D. Canada Before the adoption in 2005 of the Canadian Civil Marriage Act, two provinces had introduced civil unions as equivalent institutions to marriage.38 The Civil Code in Quebec was amended in 2002 to create the status of civil union, open to same-sex and opposite-sex couples and mirroring the rights and obligations of spouses.39 The more conservative province of Alberta 33 The most important Canadian cases were EGALE Canada Inc v Canada (Attorney General), 2003 BCCA 251, 225 DLR (4th) 472, rev’g 2001 BCSC 1365, [2001] 11 WWR 685; Halpern v Canada (Attorney General) (2003), 65 OR (3d) 161, 225 DLR (4th) 529 (CA), aff’g (2002), 60 OR (3d) 321, 215 DLR (4th) 223 (Sup Ct (Div Ct)) [Halpern cited to OR]; Dunbar v Yukon Territory, 2004 YKSC 54, 8 RFL (6th) 235; Vogel v Canada (Attorney General) (2004), [2005] 5 WWR 154 (available on QL) (Man QB); Boutilier v Nova Scotia (Attorney General), [2004] NSJ No 357 (QL) (SC); W (N) v Canada (Attorney General), 2004 SKQB 434, 246 DLR (4th) 345; Pottle v Canada (Attorney General), [2004] NJ No 470 (QL) (NL SC (TD)); Harrison et al v Canada (Attorney General) et al, 2005 NBQB 232, 290 NBR (2d) 70 (TD). In South Africa, a series of constitutional challenges to legal discrimination against people who have sex with others of the same sex started off with National Coalition for Gay and Lesbian Equality v Minister of Justice, [1998] ZACC 15; 1999 1 SA 6 (CC); 1998 (12) BCLR 1517 (CC), which attacked the criminalization of sodomy, and culminated in Minister of Home Affairs v Fourie, [2005] ZACC 19; 2006 (1) SA 524 (CC), in which the complete failure to give legal recognition to same-sex relationships was declared unconstitutional. 34 (S Afr), No 17 of 2006 [Civil Union Act]. 35 Ibid, s 11(1). 36 Ibid, s 12(3). 37 Ibid, s 13. 38 SC 2005, c 33. 39 SQ 1991, c 64; see arts 521.1-521.19. 136 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts passed the Adult Interdependent Relationships Act in an attempt (albeit a vain one) both to pre-empt federal legislation allowing same-sex couples entry into marriage, and to preserve the existing limits of accessibility to marriage. 40 The impact of these provincial statutes and the expansion to other provinces of such approaches have now been pre-empted by court cases that opened civil marriage to same-sex couples and by the 2005 federal statute. Typical of the reasons in the court cases are those from the Ontario Court of Appeal. The Court of Appeal held that exclusion of same-sex couples from marriage “denies persons in same-sex relationships a fundamental choice – whether or not to marry their partner”.41 The Court accepted that the common law recognized only opposite-sex couples as capable of marrying, but held that “marriage” did not have a constitutionally fixed meaning. The Court said, “an argument that marriage is heterosexual because it ‘just is’ amounts to circular reasoning.”42 The Civil Marriage Act, passed in response to both of these cases as well as political pressure, is clear, stating: “[m]arriage, for civil purposes, is the lawful union of two persons to the exclusion of all others” and “[f]or greater certainty, a marriage is not void or voidable by reason only that the spouses are of the same sex.”43 It is worthy of note that the change of the definition of marriage in Canada does not differentiate between religious and civil marriage and therefore contemplates the availability of religious marriages for same-sex couples as well as for opposite-sex couples. To summarize the various legal regimes: in the Netherlands, both same and opposite-sex couples can either marry or enter into registered partnerships. In Canada, the institution of marriage is open either to same-sex or opposite-sex couples and some provinces offer a civil union-type alternative to both types of partnerships. South Africa retains opposite-sex only marriage, but also has civil unions, which are open to same or opposite-sex couples and which may be called marriage if the partners so wish. Only in Scotland is there no institution open to both categories of partners, with marriage reserved for opposite-sex couples and civil partnership reserved for same-sex couples. 44 40 SA 2002, c A-4.5. 41 Halpern, supra note 33 at para 87. 42 Ibid at para 71. 43 Supra note 38, ss 2, 4. The constitutional validity of the Civil Marriage Act was confirmed in Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 SCR 698. 44 The major technical complexity caused by this insistence on gender-mix exclusivity concerns transgender individuals who seek to have their new gender recognized while in a marriage or civil partnership. The Gender Recognition Act 2004 (UK), 2004, c 7, requires the termination of the existing relationship, followed by the recognition of the new gender, leaving the person free to enter the other type of relationship with his or her partner. MacDougall et al, Conscientious Objections to Creating Same-Sex Unions n 137 IV. Conducting Same-Sex and Opposite-Sex Marriages A. The Netherlands In the Netherlands secular marriage ceremonies and the registration of registered partnerships are the tasks of civil servants who work for the Registrar’s Office (Burgerlijke Stand); however, in practice the ceremonial part of the marriage is often conducted by people who may or may not work for the government but who are in any case sworn in just to carry out this ceremonial function on a kind of stand-by contract. A person carrying out this latter function is known as a “special civil servant of the Registry”. Municipalities are obliged to ensure that all couples who wish to marry are able to do so, but they have some scope of discretion concerning the local practice and execution of these obligations. For instance, some municipalities prefer to send only special civil servants to officiate marriages. Others publish the names of all available regular and special civil servants on their websites, accompanied by a resume, a photo, and sometimes information on their private life, hobbies, or their (non)religious affiliations. There have been cases where the (un)willingness to officiate same-sex marriages has been explicitly mentioned.45 Despite the absence of a provision allowing marriage officers to object to performing same-sex marriages, in 2011 there were approximately 105 objecting civil servants in the Netherlands, employed by 58 different municipalities; however, 72% of the municipalities have indicated that they are not willing to countenance these objections (so-called weigervrije gemeenten) and 234 municipalities hire new servants only on condition that they are willing to perform all marriages.46 This refusal, at the municipal level, to allow for such conscientious objections has caused job seekers and employees to file complaints with the Dutch national equality body (Commissie Gelijke Behandeling, the “CGB”). This body is tasked with investigating discrimination complaints and may release non-binding, but socially persuasive findings on the discrimination issues. The complaints have been made on the basis that the municipal employers, by not appointing, or by refusing to renew the contracts of objecting officials, discriminate against them on the basis of religion. 45 See e.g. the website of the municipality of Staphorst: “Buitengewone ambtenaren burgerlijke stand” [Special Officials Registry], online: Gemeente Staphorst The effect of the equality legislation on the employer-employee relationship, therefore, stands at the centre of these disputes in the Netherlands. The act of officiating at a marriage is legally regarded as a “unilateral” act of government. That is to say, such acts typically belong to the sphere of the legislator or the administration, comparable to the levying of taxes. Such acts have been deliberately left outside of the scope of the equal treatment legislation that focuses on relationships between citizens, and not between the government and its citizens. So, couples will usually not know that an official refused to marry them because they apply to the municipality, which in turn assigns a civil servant. Regardless, even if the couple were to know of the refusal by a particular civil servant, this would not engage the equality legislation if another official is willing to conduct the marriage.47 B. Scotland The Church of Scotland’s pre-eminent position in Scottish society means that Kirk ministers are, by dint of their office, state officials for the purposes of solemnizing religious marriages,48 while it is required that celebrants from other religious organizations first be authorized to solemnize marriages.49 Non- religious, or civil, marriages may be conducted only by district registrars.50 There is no obligation upon ministers of the Church of Scotland to marry anyone within their parish and a minister is free to refuse to do so. Registrars, on the other hand, are state officials and as such are not able to refuse to marry any couple who are legally free to marry each other. Registrars are employed by local councils who set their terms of employment and their range of duties, which may include registering marriages, civil partnerships, births, and deaths. Councils with larger geographical areas and less dense populations charge their Registrars with a larger variety of work, whereas in cities the Registrars tend to specialize in registration duties alone. The purely secular nature of Scottish civil partnerships mean that they may be registered only by district registrars and that religious officers have no legal role in bringing civil partnerships into being. Registrars are authorized by the Registrar General of Scotland, who must ensure that there are sufficient 47 A very explicit refusal, either directed at a specific couple or advertised in general on the internet might come within the ambit of arts 137(c)-(g) SR (Wetboek van Strafrecht) [Dutch Criminal Code]; however, no cases have followed this route yet. 48 Marriage (Scotland) Act 1977 (UK), 1977, c 15, s 8(1)(a)(i). 49 Ibid, ss 8(1)(a)(ii), 9. 50 Ibid, s 8(1)(b). A qualification to this is that the Registrar General of Scotland has authorized humanists to solemnize marriage on the same basis as he authorizes non-Church of Scotland religious officiants to do so. MacDougall et al, Conscientious Objections to Creating Same-Sex Unions n 139 registrars available to conduct civil partnerships throughout the country.51 The local demand for registrars who will conduct civil partnerships and marriages is assessed by the local authorities, who must ensure that there are enough registrars so authorized in their area to meet the demand. Despite calls for it to do so, the Civil Partnership Act 2004 contains no conscientious objection provision. Nevertheless, registrars have argued that by forcing them to conduct civil partnerships the local authorities thereby violate their right to religious beliefs under article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms,52 and under EU-inspired domestic legislation.53 The issue is thus whether, in the absence of an explicit conscience clause, the employing local authorities have a legal obligation to allow an objector to be relieved of the duty to register civil partnerships where there are sufficient numbers of registrars willing to assume the duty instead. As in the Netherlands, objecting officials have cast their claims in terms of employment law.54 C. Canada In Canada, the provinces have different regimes relating to the appointment of people who can conduct same or opposite-sex civil marriages. There are also different names for the individuals authorized to perform them.55 Different solutions were adopted by the different jurisdictions, regarding the issue of refusing marriage commissioners.56 Some decided that marriage commissioners would have to indicate a willingness to perform such ceremonies or else resign their positions. Others permitted refusals on 51 Civil Partnership Act 2004, supra note 30, s 87, mirroring Marriage (Scotland) Act 1977, supra note 44, s 17. 52 4 November 1950, 213 UNTS 221, Eur TS 5 [European Convention]. 53 See Employment Equality (Religion or Belief) Regulations 2003, SI 2003/1660 [Employment Equality Regulations] (designed to implement EC Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, [2000] OJ, L 303/16; now replaced by the far more comprehensive Equality Act 2010, supra note 31). 54 See Islington London Borough Council v Ladele, [2009] EWCA Civ 1357, [2010] ICR 532 [Ladele]; McClintock v Department of Constitutional Affairs (2007), [2008] IRLR 29 (available on BAILII) [McClintock] (both cases discussed in Andrew Hambler, “A No-Win Situation for Public Officials with Faith Convictions” (2010) 12:1 Ecc LJ 3); McFarlane v Relate (Avon) Ltd, [2010] EWCA Civ 880, [2010] IRLR 872 [McFarlane]. 55 In Ontario, for example, judges, justices of the peace and municipal clerks can perform marriages, but are not called marriage commissioners: Marriage Act, RSO 1990, c M.3, s 24. See Solemnization of Marriage Act, RSNS 1989, c 436, s 4 (certain judges); art 366 CCQ (e.g. clerk or deputy clerk of the Superior Court). Newfoundland and Labrador and the western Canadian jurisdictions have specially-designated marriage commissioners: Marriage Act, RSA 2000, c M-5, s 3; Marriage Act, RSBC 1996, c 282, s 7; The Marriage Act, RSM 1987, c M50, s 7; Solemnization of Marriage Act, RSNL 1990, c S-19, s 3; Marriage Act, RSNWT 1988, c M-4, s 7; The Marriage Act, 1995, SS 1995, c M-4.1, s 3; Marriage Act, RSY 2002, c 146, s 5. 56 These solutions generally appear to have been informally and not always consistently adopted. See Bruce MacDougall, “Refusing to Officiate at Same-Sex Civil Marriages” (2006), 69 Sask Law Rev 351, at fn. 11. 140 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts the basis of religion or conscience.57 Still others took what might be called a middle-ground approach and permitted opt-outs only where the marriage commissioners could provide a replacement. Yet another middle-ground approach was to allow opt-outs for existing marriage commissioners, while exclusively appointing as new marriage commissioners only those who will agree to marry same-sex couples. There also exists a “single entry point” system where marriage commissioners are not contacted directly by members of the public but instead through a central office. By centralizing the process, the religious beliefs of individual marriage commissioners can be accommodated “behind the scenes”, much as is the case in the Netherlands.58 The method of implementing these approaches varies by jurisdiction, with some being very casually implemented, it would seem.59 The Canadian federal Civil Marriage Act does not, for constitutional jurisdiction reasons, regulate the performance of marriage ceremonies. Nonetheless, section 3.1 was added late in the drafting process of that statute and states that: [N]o person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom. D. South Africa In South Africa, the Marriage Act, 1961 dictates that marriages can be performed either by religious officials or by public servants, who are automatically deemed marriage officers by virtue of their occupation.60 In addition, marriages can also be conducted by officers of certain religions who have been appointed as marriage officers by the State.61 Religious marriage officers may object to conducting marriages which do not conform tothe tenets, doctrines, or disciplines of their religions.62 For instance, Catholic marriage officers who solemnize marriages in their capacity as religious 57 See the Prince Edward Island Marriage Act, RSPEI 1988, c M-3 s 11.1, as amended by An Act to Amend the Marriage Act, SPEI 2005, c 12, s 7 [Marriage Act (PEI)]. New Brunswick proposed similar legislation: Bill 76, An Act to Amend the Marriage Act, 2nd Sess, 55th Leg, New Brunswick, 2005. 58 See Reference re Marriage Commissioners Appointed Under The Marriage Act, 1995 (Sask), 2011 SKCA 3 at para 85, 327 DLR (4th) 669 [Saskatchewan Marriage Reference]. 59 Only one jurisdiction, Prince Edward Island, has a statute on this matter: Marriage Act (PEI), supra note 57, s 11.1. The other jurisdictions simply use policy statements. 60 Marriage Act, 1961, supra note 12, ss 2-3. 61 Ibid, s 3(1). 62 Ibid, s 31. MacDougall et al, Conscientious Objections to Creating Same-Sex Unions n 141 marriage officers may object to conducting marriages between persons who have been divorced, while certain Jewish marriage officers could object to conducting marriages between Jews and non-Jews. Conversely, no similar conscientious objection provision exists for public officials who are marriage officers, therefore they must conduct all marriages, regardless of their own beliefs. The position is different for civil unions in South Africa. In respect of religious marriage officers, the Civil Union Act requires first, that a religious denomination or organization apply for approval to conduct civil unions.63 Once the organization has been approved, an official from the organization may apply to be appointed as a marriage officer. Once religious organizations have obtained permission to conduct civil unions, religious officers no longer have statutory rights of conscientious objection on theological grounds.64 This contrasts with the position of religious marriage officers who conduct heterosexual marriages under the Marriage Act, 1961. They may object to conducting marriages which do not conform to the “rites, formularies, tenets, doctrines or disciplines” of their religions.65 This ground of objection would cover religious scruples relating to conducting same-sex marriages; however, its application is wider than this. The ground could apply to other situations, such as Catholic marriage officers objecting to conducting marriages of divorced people, or a Jewish marriage officer who objects to conducting the marriage of an atheist. The reason for the omission of this wider ground of objection from the Civil Union Act could lie in the fact that both the religious institution and the individual marriage officer must apply to conduct civil unions and it could, therefore, have been assumed that the issue of conscientious or religious objection would not arise. A person who objects to same-sex marriage would not actively apply under the Civil Union Act, thus putting themselves in a position to conduct such marriages. Nevertheless, this reasoning is clearly problematic, because not all objections would be based on the sexual orientation of the couple. For instance, a Jewish marriage officer could be asked to conduct a civil union for a Christian same-sex couple. Although the marriage officer may not object on the grounds of the couple’s sexual orientation, he might object on the grounds of their religion. Regardless, the Civil Union Act would not allow a marriage officer in this position to refuse to conduct the marriage on religious grounds. The absurdity of this should be clear. 63 Civil Union Act, supra note 34, s 5(1). 64 Ibid, s 6. See also Elsje Bonthuys, “Irrational Accommodation: Conscience, Religion and Same-Sex Marriages in South Africa” (2008) 125:3 SALJ 473 [Bonthuys, “Irrational Accommodation”]. 65 Marriage Act, 1961, supra note 12, s 31. 142 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts Turning to civil servants conducting civil unions, they “may in writing inform the Minister that he or she objects on the ground of conscience, religion and belief to solemnizing a civil union between persons of the same sex, whereupon that marriage officer shall not be compelled to solemnize such civil union.”66 The only ground upon which they can object is the sexual orientation of the parties. Religious objections for all other reasons are not accommodated in the Civil Union Act. It will be remembered that there is no similar right of religious objection for civil servants conducting heterosexual marriages under the Marriage Act, 1961. The different forms of objection for the different kinds of marriage officers and the grounds upon which they can object are, therefore, problematic.67 V. Legal and Constitutional Contexts How countries have dealt with issues of marriage officers who refuse to conduct same sex marriages or unions depends on the legal context, and in particular on binding human rights norms in various constitutions or human rights instruments. This section sketches the human rights norms that have influenced state responses to the problem and against which state responses can be measured. A. Scotland The Scottish retention of marriage as a status reserved only for opposite- sex couples can perhaps be explained by the fact that the family rights of same-sex couples have been only gradually recognized since the early 1990s as result of a development of the principles of family law. Although earlier cases regarded same-sex families with deep suspicion,68 the highest court in Scotland, the Court of Session, in T, Petitioner allowed a gay man to adopt the child that he and his partner had been looking after for some years. 69 This case clearly signalled that gay and lesbian people were no longer to be stereotyped by the courts as a bad influence or harmful to children, nor a danger to society. That message was confirmed and emphasized by the House of Lords which held in Fitzpatrick v Sterling Housing Association Ltd that a same-sex couple could be considered a “family” for the purposes of allowing the surviving 66 Civil Union Act, supra note 34, s 6. 67 Bonthuys, “Irrational Accommodation”, supra note 64. 68 Early v Early (1989), [1990] SLT 221 (Ct Sess), where a seven year old boy was removed from the custody of the mother with whom he had always stayed when she entered into a lesbian relationship, and delivered into the custody of a father who had three convictions for child neglect. 69 T, Petitioner (1996), [1997] SLT 724. This case was followed shortly thereafter in England by In re W (A Minor) (Adoption: Homosexual Adopter) (1997), [1998] Fam 58, [1997] 3 WLR 768. MacDougall et al, Conscientious Objections to Creating Same-Sex Unions n 143 partner to inherit the tenancy held by the deceased partner. 70 The House of Lords subsequently built upon this ruling in Ghaidan v Godin-Mendoza by requiring all rules relating to cohabiting couples to be interpreted, where at all possible, to include same-sex couples.71 Discrimination on the ground of sexual orientation is now explicitly prohibited in the provision of services, the performance of public functions, employment, pensions, and education, by s. 12 of the Equality Act 2010. After a long hesitancy from the European Court of Human Rights (the “European Court”) to accept that same-sex couples represented an aspect of family life as well as private life, that Court has now firmly established that, just like legal differences based on sex, legal differences based on sexual orientation may be justified only by particularly serious and persuasive reasons.72 In 2010, the European Court, while rejecting the proposition that limiting marriage to opposite-sex couples was contrary to articles 8, 12 and 14 of the European Convention, finally accepted that the legal regulation of same- sex relationships engaged “family life” as protected by article 8.73 The Court also accepted that, for those European states that have opened marriage to same-sex couples, any difference in treatment between them and opposite-sex couples would necessitate justification based on particularly persuasive and legally proportionate reasons. The European Convention also protects the right to hold religious beliefs, as does domestic UK law.74 Both the European Court itself and the British domestic courts take a robustly secularist approach to the need to balance religious freedoms with the demands for equality. Munby J put it thus: [I]t is important to realise that reliance upon religious belief, however conscientious the belief and however ancient and respectable the religion, can never of itself immunise the believer from the reach of the secular law. An invocation of religious belief does not necessarily provide a defence to what is otherwise a valid claim. Some cultural beliefs and practices are simply treated by the law as being beyond the pale.75 Laws LJ elaborated upon this with a classically secular judgment in McFarlane.76 Here the court held that it was not unfair or unlawful to dismiss a relationship counselor from his post when he refused to offer the 70 Fitzpatrick v Sterling Housing Association, (1999), [2001] 1 AC 27, [1999] 3 WLR 1113 [Fitzpatrick]. 71 [2004] UKHL 30, [2004] 2 AC 557 [Ghaidan]. 72 See Salgueiro da Silva Mouta v Portugal, No 33290/96, [1999] IX ECHR 309, 31 EHRR 47; SL v Austria, No 45330/99, [2003] I ECHR 71, 37 EHRR 39; Karner v Austria, No 40016/98, [2003] IX ECHR 199 at para 37, [2003] 2 FLR 623; EB v France [GC], No 43546/02 (2008), 47 EHRR 21 at para 91 (available on BAILII). 73 Schalk and Kopf v Austria, No 30141/04 (2010), 29 BHRC 396 (available on BAILII) [Schalk]. 74 European Convention, supra note 52, art 9; Equality Act 2010, supra note 31, s 10. 75 R (E) v Governing Body of JFS, [2008] EWHC 1535 (Admin) at para 108, [2008] ELR 445. See now R (E) v Governing Body of JFS, [2009] UKSC 15, [2010] 2 AC 728. 76 Supra note 54. 144 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts organization’s services to same-sex couples. His argument that this amounted to an infringement of his right to religious beliefs was rejected, Laws LJ holding that: [T]he conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled; it imposes compulsory law not to advance the general good on objective grounds, but to give effect to the force of subjective opinion … The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified; it is irrational, as preferring the subjective over the objective, but it is also divisive, capricious and arbitrary. We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion, any belief system, cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other.77 B. The Netherlands The Dutch Constitution contains an explicit prohibition against discrimination on several grounds, including religion, but not explicitly including sexual orientation.78 The protection offered by the non-discrimination clause acquires horizontal application by way of a number of specific equality acts, closely resembling European Union (sex-)equality legislation.79 Generally, direct discrimination is not allowed on any of the enumerated grounds, unless the law explicitly provides for an exception. Indirect discrimination, on the other hand, may be objectively justified. The objective justification test, developed by the European Court of Justice, demands that discrimination must serve a legitimate government purpose and that the means to achieve this purpose are both appropriate and necessary. Despite the fact that sexual preference is not contained in the Dutch Constitution, it is an enumerated ground in the Equal Treatment Act of 1994.80 The jurisprudence of the European Court in its interpretation of the European Union (sex-)equality legislation, as described above, applies in the Netherlands as it does in Scotland. In addition to the constitutional provision prohibiting discrimination on the basis of religion, article 6(1) of the Dutch Constitution also determines that “[e]veryone shall have the right to profess freely his religion or belief, either individually or in community with others, without prejudice to his 77 Ibid at paras 21-22. 78 Grondwet voor het Koninkrijk der Nederlanden [Constitution for the Kingdom of the Netherlands], art 1 Gw [Dutch Constitution]. 79 See Algemene wet gelijke behandeling [General Act on Equal Treatment], 2 March 1994 [Equal Treatment Act] (an English translation is available at: “Equal Treatment Act”, online: Commissie Gelijke Behandeling responsibility under the law.”81 Whereas protection against discrimination depends on comparison, freedom of religion can be regarded as an autonomous claim, which may extend beyond the right to religion, thus also protecting deeply held non-religious beliefs. Finally, the Dutch Criminal Code prohibits abuse and incitement of discrimination, both on grounds of belief and sexual preference.82 C. Canada The constitutional position in Canada is very similar to that in the Netherlands. The Canadian Charter of Rights and Freedoms contains a provision prohibiting discrimination on various grounds, including religion, but without explicitly including sexual orientation. 83 The Charter also provides in section 2 that “[e]veryone has … freedom of conscience and religion.” The Charter applies to regulate only government action, and not action between private individuals and entities.84 There is no doubt, however, that the creation of a civil marriage constitutes government action. Another pertinent feature of the Charter is section 1, the so-called “reasonable limits” clause which determines that “[t]he Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”85 This means that discrimination may be justifiable in particular contexts, similar to the Dutch provision. Furthermore, s. 33 of the Charter, termed the “notwithstanding provision”, permits governments to override certain constitutional protections for a period of five years, provided they specifically invoke this section. Canadian governments have, however, been extremely reluctant to use this clause, though there were certainly those who, during the marriage debates at the federal and provincial levels, advocated its use. By 1995, the Supreme Court of Canada came to accept that it was unconstitutional to discriminate against gay and lesbian couples on the basis of their sexual orientation. In Egan v Canada,86 the Court agreed that sexual orientation was an ‘analogous ground’ (analogous to other prohibited forms of discrimination) under section 15 of the Charter. At the same time, however, by the narrowest of majorities, the Court allowed for differential treatment in 81 Dutch Constitution, supra note 78, art 6(1) Gw [translated by author]. 82 Dutch Criminal Code, supra note 47, arts 137(c)-(f) SR. 83 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 15 [Charter]. 84 Ibid, s 32. 85 Ibid, s 1. 86 [1995] 2 SCR 513, 124 DLR (4th) 609 [Egan]. 146 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts terms of access to the particular benefits involved in the case (old-age spousal security benefits). Not long afterwards however, it was held by the Supreme Court of Canada to be constitutionally unjustifiable to discriminate in terms of benefits on the basis of sexual orientation. In M v H,87 it was held that the exclusion of members of same-sex couples from the definition of “spouse” in Ontario’s Family Law Act,88 thus excluding them from spousal support claims, was an infringement of section 15’s equality provisions. Such an infringement was found not to be demonstrably justified under s. 1 of the Charter. Though worded within a different constitutional framework, the principles underpinning this decision are the same as those identified by the UK’s House of Lords in the cases of Fitzpatrick and Ghaidan. The Supreme Court of Canada in M v H held that a denial of the potential benefit of a spousal support claim, possibly imposing a financial burden on a member of such a same-sex relationship that a member of an opposite-sex couple would not have, “contribute[d] to the general vulnerability experienced by individuals in same-sex relationships.”89 The majority stressed that “[b]eing in a same-sex relationship does not mean that it was an impermanent or a non-conjugal relationship.”90 There were a series of legislative changes shortly afterwards at both the federal and the provincial levels to make laws conform with the decision in M v H. References to couples were amended to include same-sex couples as well as opposite-sex couples; however, the federal government hoped to “save” marriage for only opposite-sex couples, in part by stipulating in the Modernization of Benefits and Obligations Act of 2000 that: “For greater certainty, the amendments made by this Act do not affect the meaning of the word ‘marriage’, that is, the lawful union of one man and one woman to the exclusion of all others.”91 The court cases on same-sex marriage, referred to earlier, put paid to this hope of so “protecting” marriage, as same-sex marriages were permitted as a result of those decisions. D. South Africa As a result of its more recent origin, the South African Constitution is unique in this study in that it contains an explicit prohibition of discrimination on the basis of sexual orientation alongside the more common prohibited grounds of 87 [1999] 2 SCR 3 at para 2, 171 DLR (4th) 577. 88 RSO 1990, c F.3, ss 1(1), 29. 89 Ibid at para 69. 90 Ibid at para 70. 91 Modernization of Benefits and Obligations Act, SC 2000, c 12, s 1.1. This section has since been repealed by the Civil Marriage Act, supra note 38, s 15. MacDougall et al, Conscientious Objections to Creating Same-Sex Unions n 147 discrimination such as race and religion.92 Similar to, but somewhat broader than the Dutch and Canadian constitutions, it also protects rights to “freedom of conscience, religion, thought, belief and opinion” and holds that the state may recognize marriages conducted “under any tradition, or a system of religious, personal or family law.”93 The non-discrimination provisions also have horizontal application94 and, as in the Netherlands, are further enforced in equality legislation.95 The South African Constitution contains an additional right for “[p]ersons belonging to a cultural, religious or linguistic community… to enjoy their culture, practise their religion and use their language”; however, the latter right “may not be exercised in a manner inconsistent with any provision of the Bill of Rights.”96 VI. Responses to Objecting Marriage Officers in the Different Jurisdictions In the Netherlands and Scotland, which lack conscientious objection provisions, the issue of objecting marriage officers has nevertheless surfaced in the indirect guise of employment discrimination claims. Employees and job applicants have claimed that employers discriminate against them on the basis of their religious convictions by refusing to allow them to abstain from conducting same-sex marriages. In Canada and South Africa, both of which have conscientious objection provisions, the arguments are based more directly upon the competing claims of the religious objectors on the one hand, and the same-sex couples on the other hand. We will consider in turn how such cases have been dealt with in each jurisdiction. VII. Claims of Employment Discrimination In the UK,97 the Employment Appeal Tribunal (the “EAT”) has twice in recent years faced claims by state officials seeking to be relieved of the obligation to perform public functions for same-sex couples, as doing so was 92 Constitution of the Republic of South Africa, 1996, No 108 of 1996, s 9(3) [South African Constitution]. 93 Ibid, ss 15(1), 15(3)(a)(i). 94 Ibid, s 9(4). 95 See Employment Equity Act, 1998 (S Afr), No 55 of 1998; Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (S Afr), No 4 of 2000, [Promotion of Equality Act]. 96 Supra note 92, s 31. 97 Both cases about to be discussed are English, but the employment legislation and the discrimination provisions at issue are common across the jurisdictions that make up the United Kingdom (including, of course, Scotland). 148 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts contrary to their own personal views. In McClintock,98 a Justice of the Peace who sat in family cases asked to be relieved from dealing with adoption cases which might involve him having to make adoption orders in favour of same-sex couples. His request was refused and he felt obliged to resign. He then made a claim of unfair dismissal. The claim was dismissed by both the Employment Tribunal and the EAT on the ground that judges could not “cherry pick” which laws to apply and which to refuse to deal with.99 The EAT did not directly address the issue of sexual orientation discrimination because the claimant based his argument on the supposed clash between the Civil Partnership Act 2004 and the obligation under the Children Act 1989100 to treat the welfare of the child as the paramount consideration. This argument was dismissed.101 The principle in this case was not limited to those objectors exercising judicial functions. This was confirmed in Matthews v Northamptonshire County Council, where a council employee who refused to be involved in the council’s adoption process, insofar as it might have led to children being adopted by same-sex couples, was held to have been lawfully dismissed from her employment.102 In Islington London Borough Council v Ladele a registrar refused to register civil partnerships on the ground that to do so would be inconsistent with her “orthodox Christian” beliefs, and particularly her belief in the sanctity of marriage.103 She was disciplined and threatened with dismissal, which she claimed amounted to both harassment, as well as direct and indirect discrimination, contrary to the Employment Equality Regulations,104 as read with article 9 of the European Convention. The Employment Tribunal found in her favour in July 2008, but this was overturned by the EAT in December of that year. A year later, the Court of Appeal dismissed an appeal from the EAT decision.105 98 Supra note 54. 99 Ibid at para 19. 100 (UK), c 41 (applicable in England and Wales). The equivalent Scottish legislation is the Children (Scotland) Act 1995 (UK), c 36. 101 Ibid at para 17. 102 (16 November 2010), 1901629/2009 (Employment Tribunal) (as discussed in “Christian Advisor Loses Gay Adoption Case Tribunal”, BBC News (16 November 2010), online: BBC News The Court of Appeal held that there was no direct discrimination against Ladele because the Council’s actions were a response to her refusal to carry out civil partnership duties and not a response to her religious beliefs. As well, it held that there was no indirect discrimination because the Council’s (legitimate) aim was not only to ensure that all couples who wished to register a civil partnership had access to a registrar who would do so, but also to ensure that the Council acted consistently with its stated policy of fighting discrimination against gay and lesbian citizens and employees. The Court endorsed the finding of the EAT that “[o]nce it is accepted that the aim of providing the service on a non-discriminatory basis was legitimate – and in truth it was bound to be – then … it must follow that [the Council] was entitled to require all registrars to perform the full range of services.”106 Importantly, the Court held that the council’s policy of requiring all of its registrars to perform civil partnership duties was a proportionate means of achieving its aim of providing a non-discriminatory public service, notwithstanding that some other councils might not impose this requirement on its registrars. Indeed, the Court was willing to contemplate that councils could not lawfully exempt their registrars from performing their civil partnership duties. The Court held that the Equality Act (Sexual Orientation) Regulations 2007,107 which prohibits discrimination on the basis of sexual orientation in regards to the provision of goods and services, “takes precedence over any right which a person might otherwise have by virtue of his or her religious belief or faith, to practise discrimination on the ground of sexual orientation.”108 The Strasbourg jurisprudence was fully explored by the Court of Appeal, which concluded that the case law was fully consistent with the conclusion it reached. Article 9 of the European Convention has never been interpreted to require that everyone should be allowed to manifest their religion at any time and place of their own choosing. Generally, article 9 protects beliefs as opposed to actions motivated by these beliefs. The only acts protected are those forming part of the performance of religious rites. So, while the conduct of a ceremonial ritual might be protected by article 9, the refusal of a pharmacist to sell contraceptives was not.109 Likewise, the refusal to enrol university students wearing Islamic headscarves was also not upheld under article 9.110 106 Ibid at para 49, citing Ladele (EAT), supra note 99 at para 111. 107 SI 2007/1263. 108 Ladele, supra note 50 at para 69. 109 Pichon and Sajous v France, No 49853/99, [2001] X ECHR 381. 110 Sahin v Turkey [GC], No 44774/98, [2005] XI ECHR 173, 44 EHRR 5. 150 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts The first Dutch case on the issue concerned a special civil servant whose fixed term contract was not renewed because she was unwilling to officiate at same-sex marriages.111 The official argued that this amounted to indirect discrimination on the basis of religion. The CGB accepted the indirect discrimination argument and found that the exclusion of the special civil servant was not objectively justified. It opined that it would not be very difficult for the local authorities to organize work so that the civil servant did not have to marry same-sex couples and that same-sex couples would be able to marry without any problems or delay. Thus, the decision not to renew the contract on the basis of the special civil servant’s objection was found to violate the principle of equal treatment. The CGB decision precipitated various attempts by the Dutch Parliament to settle the issue. First, in 2006, there was a motion to oblige all newly appointed marriage officials to officiate all at forms of marriage; however, this motion was rejected.112 In 2007, a new government included in its coalition agreement a statement that: “marriage officials with conscientious objections are allowed to excuse themselves from officiating same-sex marriages on the condition that another official is available. If problems arise, initiatives will be taken to ensure legal security for the objecting officials.”113 The most recent government did not discuss the issue at all.114 Whether this removes the ability of local authorities to formulate their own policies on the issue, is still unclear.115 The second complaint was directed at a municipality requiring newly hired civil servants, both regular and special, to marry all couples, regardless of sex.116 A member of an orthodox reformed church was interested in serving as a special civil servant but did not apply because the municipality had declared itself unwilling to accommodate objections. The CGB deviated from its former opinion, explaining that, whereas the first opinion had focused on pragmatic 111 Decision No 2002-26 (2002), (CGB), online: aspects of the issue, this current opinion was based on principled reasoning. It held that municipalities could refuse to accommodate religious objections because they also had a duty not to discriminate against people on the basis of their sexual orientation. Although civil servants are free to harbour any religious, political, or other ideas, they may not express discriminatory beliefs in the execution of their office. Municipalities could accommodate religious objectors by employing them as regular civil servants who did not perform marriages. This is a similar approach to that of the English Court of Appeal in Ladele. Of course, this judgment does not assist special civil servants, whose only function is to officiate at marriages. Unfortunately, this solution does not seem to be clear or settled. The deputy minister responsible for gay emancipation policies announced that, according to her, municipalities should be allowed to accommodate objecting officials, on condition that there is another civil servant available to perform same-sex marriages.117 In reaction, members of parliament have requested that the government formally end the practice of accommodating objecting officials.118 The consequences of the holding of the European Court in Schalk that marriage rules, in countries where marriage is available to same-sex couples, need to be applied without unjustified discrimination, seem at least to rule out current local practices of indicating the (un)willingness of marriage officials regarding the performance of same-sex marriage. A. Claims Based on Constitutional Rights The South African Civil Union Act is still relatively new and there have been no legal challenges against the conscientious objection provision. Nevertheless, it has been suggested that, at the very least, the peculiar way in which this provision accommodates religious objections, as described above, fails to meet the standards of reasonable accommodation.119 A related case was recently heard by the Equality Court in terms of the Promotion of Equality Act.120 The case of Strydom v Nederduitse Gereformeerde Gemeente Moraleta 117 Netherlands, Tweede Kamer, Kamerstukken II, Vergaderjaar 2010-2011, 27017 Homo-emancipatiebeleid [Homosexual Emancipation], No 76 “Brief van de Minister van Onderwijs, Cultuur en Wetenschap” [Letter of the Minister of Education, Culture and Science] (24 May 2011). 118 Netherlands, Tweede Kamer, Kamerstukken II, Vergaderjaar 2010-2011, 27017 Homo-emancipatiebeleid [Homosexual Emancipation], No 77 “Motie van het lid Van Gent cs” [Motion of Member of Parliament Van Gent cs] (23 June 2011). Currently, the majority of Dutch Parliament opposes the practice of accommodation. The debate is expected to take place in the fall of 2011. See JP Loof, “CGB sluit deur voor gewetensbezwaarde trouwambtenaren” [CGB Closes the Door for Marriage Officials with Conscientious Objections] (2008) 33:6 NJCM Bulletin 791 at 799. 119 Bonthuys, “Irrational Accommodation”, supra note 64. 120 Supra note 95 (designed to give practical effect to the basic freedoms and equality guarantees in the Bill of Rights). 152 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts Park121 involved a church which dismissed Strydom, who was employed as an independent contractor to teach music to students in its arts academy, when it became clear that Strydom was involved in a relationship with another man. The church justified the dismissal by referring both to its religious doctrine, which held that homosexuality is sinful, and its fear that Strydom would set an incorrect example for parishioners. The Court dismissed these arguments on the basis that Strydom was not in a position of religious leadership, since he did not teach religious doctrine. He was merely a contract worker who taught music and was not even a member of the church.122 In weighing Strydom’s rights to equality and freedom from discrimination on the basis of sexual orientation against the impact upon religious freedom,123 which would result from failing to grant the church an exemption from the anti-discrimination legislation, the Court found in favour of Strydom. In Canada, within jurisdictions which oblige marriage commissioners to marry all couples, some marriage commissioners have resigned in direct response to the obligation. There have been at least two sets of complaints launched by affected marriage commissioners in Manitoba and Saskatchewan, with all initial decisions being against the marriage commissioners.124 Out of all of the countries discussed in this paper, the only complaint by a person who was refused a same-sex marriage ceremony was brought before the Saskatchewan Human Rights Tribunal. The Tribunal rejected the marriage commissioner’s defence that he ought to be able to decide whether or not to provide government services based on his religious beliefs.125 This was effectively the same reasoning as the UK Employment Appeal Tribunal in McClintock, discussed above. This decision was upheld by the Saskatchewan Court of Queen’s Bench which agreed that the commissioner had discriminated in refusing to officiate a same-sex ceremony and that an accommodation of his religious beliefs was not required.126 A marriage commissioner was, the court held, “government” because he or she implements a specific government scheme. As such, the 121 [2008] ZAGPHC 269; 2009 (4) SA 510 (EqC). 122 Ibid at paras 17, 20, 22. 123 Ibid at para 25. 124 These cases are discussed in Geoffrey Trotter, “The Right to Decline Performance of Same-Sex Civil Marriages: The Duty to Accommodate Public Servants; A Response to Professor Bruce MacDougall” (2007) 70:2 Sask L Rev 365 at 390-91. See, in Manitoba, Kisilowsky, File No 04 EN 462 (Manitoba Human Rights Commission); and, in Saskatchewan, three cases before the Saskatchewan Human Rights Tribunal: Bjerland v Saskatchewan (Department of Justice) (2006), CHRR Doc 06-888; Goertzen v Saskatchewan (Department of Justice) (2006), CHRR Doc 06-889; Nichols v Saskatchewan (Department of Justice) (2006), CHRR Doc 06-887. 125 MJ v Nichols (2008), 63 CHRR D/145. 126 Nichols v Saskatchewan (Human Rights Commission), 2009 SKQB 299, [2009] 10 WWR 513. MacDougall et al, Conscientious Objections to Creating Same-Sex Unions n 153 marriage commissioner is “empowered to act only in accordance with” the relevant law, in this case that governing marriages.127 The court held that when acting as a marriage commissioner, a person’s “freedom of religion ought to be limited to exclude discrimination on the basis of sexual orientation.”128 The ability to refuse to perform a ceremony for religious reasons applied only to religious officials performing religious marriages. McMurtry J said: Regardless of the religious basis of Mr. Nichols’ views, his acting on them in this manner constitutes discrimination in the provision of a public service on the basis of sexual orientation. Any accommodation of Mr. Nichols’ religious views, if the duty to accommodate exists, is not the responsibility of those who seek the services that he is legally empowered to provide. If any accommodation is due to Mr. Nichols for his religious views, it must be accomplished without risking what occurred here – where the complainant sought a service and was expressly denied it on the basis of his sexual orientation.129 The Saskatchewan government then submitted a proposed law on marriage commissioners to the Saskatchewan Court of Appeal for its opinion on the law’s constitutional validity. This proposed legislation had two versions. One version would have “grandfathered” existing marriage commissioners so as to allow them to refuse to perform a marriage if it would be contrary to their religious beliefs. The second version would have allowed any marriage commissioner to refuse to perform a marriage contrary to his or her religious beliefs. In the Saskatchewan Marriage Reference, the Court unanimously held both versions of the law to be unconstitutional as unjustifiably infringing equality guarantees. R.G. Richards JA, writing one of two sets of concurring reasons, said: It is not difficult for most people to imagine the personal hurt involved in a situation where an individual is told by a governmental officer “I won’t help you because you are black (or Asian or First Nations) but someone else will” or “I won’t help you because you are Jewish (or Muslim or Buddhist) but someone else will.” Being told “I won’t help you because you are gay/lesbian but someone else will” is no different.130 Richards JA also expressed concern about the impact on gays and lesbians if a number of marriage commissioners refused to perform same-sex marriages, especially in more geographically isolated areas. 127 Ibid at para 53. 128 Ibid at para 73. 129 Ibid at para 57. 130 Saskatchewan Marriage Reference, supra note 58 at para 41. 154 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts VIII. Discrimination and Accommodation Arguments Resolution of this issue is a task fraught with complexity. It depends very much on the constitutional and legal background of the jurisdiction, as well as on the broad characterization of the issue and the emphasis placed on specific facets of the issue. Developments in the Netherlands and Scotland show that the issue of conscientious objection will arise even where there is no statutory authorization for it. From the Canadian and South African discussions we learn that, even where conscientious objection clauses exist, their content and their actual application will often be in dispute. A defining feature of the debate on conscientious objections to officiating same-sex unions is the polarization of views, either favouring accommodation of religious beliefs or taking a stance against discrimination against homosexuals. To a certain extent, the perspective informing the approach of a participant in the debate – “pro-gay” or “pro- faith” – is recognizable in the description of the problem, whether based on a discrimination or on an accommodation analysis.131 So, those in favour of the accommodation of objections tend to define the problem as the unnecessary exclusion of people adhering to specific faiths, whereas those opposed to this accommodation tend to emphasize the necessity of preventing discrimination on the basis of sexual orientation. The different starting points can determine the flow of the argument: a focus on the problems of the conscientious objectors tends to result in a focus on the practical possibilities to accommodate objectors. A focus on the problems of same-sex couples tends to result in an objection to the idea that a more historically marginalized group should have to “give” to ensure the continuity of the scope of protection for the group that has historically spearheaded this marginalization. Is it possible to satisfy both concerns by finding ways in which a government can accommodate religious convictions whilst also guaranteeing the right of same-sex couples to have their relationship institutionalized and protected from directly discriminatory reactions? Such a pragmatic solution is usually unacceptable to those who reject the accommodation of discrimination against homosexuals, because of its general message that discrimination of homosexuals is, at the least, tolerable (while discrimination based on, say, race, is “beyond the pale”). Such a differentiation was rejected in the Saskatchewan Marriage Reference by Richards JA in the passage quoted above.132 131 It is important to note that being gay or religious is not decisive for the stance taken. Quite a number of gay people agree with the pragmatic solution to accommodate objections, mostly because they feel they would not like to be married by someone who secretly rejects their lifestyle. On the other hand, some orthodox Christians take either the view that one should accept the consequences of ones’ religious principles, whereas others contest the correctness of the belief that a believer should not celebrate a marriage between two people of the same sex. Similarly, not all Roman Catholics (for example) follow their church’s teachings on matters like contraception and divorce. 132 Saskatchewan Marriage Reference, supra note 58 at para 41. MacDougall et al, Conscientious Objections to Creating Same-Sex Unions n 155 Nevertheless, a pragmatic solution may be mandated by the constitutional duty of reasonable accommodation of religious beliefs. That, however, shifts the question to what would amount to reasonable accommodation. A focus on discrimination against lesbians and gay men usually leads to fundamental human rights questions such as whether or not the non- discrimination principle has priority over freedom of religion and whether or not there is a hierarchy between protected identity markers. The right to religion was defined by the Supreme Court of Canada as follows: The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.133 Nevertheless, this right is generally subject to other public policy concerns, like “public safety, order, health, or morals or the fundamental rights and freedoms of others.”134 Both sides in the debate will contest the severity of the plight of the other: one side will point out that conscientious objectors are merely excluded from a ceremonial office and that they can perform other bureaucratic functions. The contrary argument is that same-sex couples can have their relationship institutionalized by other marriage or registration officers whereas the objectors are excluded, even if only from one specific sort of job. This is what one might call the “who suffers?” argument. A. Discrimination Arguments The discrimination arguments made by same-sex couples are self-evident. The ability of a marriage or registration officer, a civil servant after all, to refuse such a service is direct discrimination on the basis of the sexual orientation of the members of the couple.135 Whatever the motive for the discrimination, it clearly amounts to a most basic denial of a service on a prohibited ground of discrimination. That said, in the Netherlands system, where a member of the public may never know of a given official’s refusal and where there will be no delay resulting from such a refusal, it is arguable that the mere fact that an official officiates only at opposite-sex marriages cannot be qualified as “individual discrimination”; it is at most a kind of abstract, general discrimination, where there is arguably no concrete harm done. 133 R v Big M Drug Mart Ltd, [1985] 1 SCR 295 at 336, 18 DLR (4th) 321. 134 Ibid at 337. See also Ross v New Brunswick School District No 15, [1996] 1 SCR 825 at para 72, 133 DLR (4th) 1; South African Constitution, supra note 92, s 31(2) which determines that the right to practice religion “may not be exercised in a manner inconsistent with any provision of the Bill of Rights.” 135 Saskatchewan Marriage Reference, supra note 58. 156 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts Marriage or registration officers who refuse to be involved in the creation of marriages or civil unions involving same-sex couples argue that the failure to provide them with a right to refuse constitutes discrimination on the basis of their religion and infringes their fundamental rights to freely practise their religion. While this argument appears to be based on indirect discrimination (i.e. religious individuals are not denied a position so long as they give concessions relating to some of their beliefs, while concessions are not required of non-religious persons), it can also be argued as a form of direct discrimination. For instance, in the Dutch context, Loof has argued that having a job requirement for civil servants that they should be prepared to officiate all marriages is directly aimed at applicants having conscientious objections and thus amounts to direct discrimination.136 This is not generally accepted, however, because facially neutral criteria or policies that nevertheless have a more severe impact on a specific group in comparison with others are usually regarded as indirectly discriminatory.137 In theory, an apparently neutral criterion could amount to direct discrimination if it is employed specifically in order to disadvantage or exclude a specific group. In this case, however, the clear government purpose, which is to provide same-sex couples with an equal right to marry rather than to disadvantage religious believers, precludes such an argument. There is an opposing argument that a refusal to accommodate conscientious objectors does not result in discrimination on the basis of religion because religious and non-religious marriage officers alike are required to officiate at all marriages. Instead, the issue is to be framed as the objecting marriage officers asking for (and being denied) a special privilege, namely the right to discriminate against same-sex couples. Governments cannot consent to such requests because they would thereby become complicit in the discrimination. The Saskatchewan Human Rights Tribunal has, for instance, held that a marriage commissioner appointed to perform purely secular marriage ceremonies is a part of “government” for constitutional purposes.138 It has been argued that it is an “illiberal notion that persons performing public functions must leave their conscientiously held beliefs at home and church, and personally embrace all state policy when they are at work”.139 In this context, however, an examination of the religious or secular nature of marriage can become important. It can be argued that the institution of marriage 136 Loof, supra note 118 at 800. See also E Brems, “Religious Objections to Conducting Marriages of Same-Sex Couples in the Netherlands” (Paper delivered at the seminar Religion in the Public Sphere, University of Utrecht, 7-9 May 2008) [unpublished, on file with author Van den Brink]. 137 Equal Treatment Act, supra note 80, art 1(1)(c) (this part defines ‘indirect discrimination’). 138 MJ v Nichols, supra note 125 at para 97. 139 Trotter, supra note 124 at 366. MacDougall et al, Conscientious Objections to Creating Same-Sex Unions n 157 has for a long time not been regarded as central to many religious traditions. If that is the case, then civil servants would, as a result of this interpretation, not be required to participate in a ceremony of religious significance, but merely to perform an administrative act.140 Moreover, civil servants do not, by officiating at same-sex marriages, become themselves parties to same-sex sexual relationships or acts, i.e. they do not engage in homosexuality; they simply engage in a function that accords status. Therefore, it can be argued that officiating at a same-sex civil ceremony is consistent with and conforms to the distinction between homosexual status (acceptable, often) and homosexual activity (unacceptable, usually) that many religions claim to be so important.141 The lack of religious significance in civil marriages was stressed by one of the judges in the Saskatchewan Marriage Reference. G.A. Smith JA concluded that the performance of a civil marriage by a marriage commissioner “is not a religious rite or practice.”142 The requirement to perform the ceremony did not limit or restrict religious belief. The judge said: “[i]t is far from clear that officiating at a civil marriage ceremony carries any implication or connotation at all that the marriage commissioner who officiates necessarilyapproves of the particular union.”143 So, from the perspective of the conscientious objector, there are arguments for the existence of direct discrimination, indirect discrimination, or no discrimination at all. It is probably most accurate to characterize governments’ requirements that all marriage officers conduct same and opposite sex marriages as having a more detrimental effect on those who believe that their religions forbid them to officiate at such marriages – i.e., indirect discrimination. This does not, however, end the inquiry, since the question then becomes whether the discrimination is justified by other legitimate policy considerations, including the protection of the fundamental rights of other citizens and the achievement of governmental policy aimed at ending discrimination based on sexual orientation.144 140 This is the same argument that was accepted by the English House of Lords in Janaway v Salford Health Authority (1988), [1989] AC 537, [1988] 3 All ER 1079, in a quite different context. The Abortion Act 1967 (UK), 1967, c 87, s 4 allows doctors to perform abortions but also gives them a right to conscientious objection. The House of Lords held that this statutory right does not extend to medical secretaries whose jobs involved making appointments for patients seeking abortions. 141 See Trotter, supra note 124 at 371, n 19, where he says that though Canadian law does not distinguish between homosexual behaviour and identity after Egan religious persons ought to be able to ignore that legal position because of their religious beliefs. Courts are noticeably reluctant to accept this; for example, the argument put forward by Christian hotel owners that they could lawfully refuse a double room to a same-sex couple because they would thereby become complicit in potential acts of “sin” was roundly dismissed in Hall v Bull, [2011] EW Misc 2 (CC) (available on BAILII) (Bristol Co Ct). 142 Supra note 58 at para 147. 143 Ibid at para 142 [emphasis in original]. See also Hall (Litigation guardian of) v Powers (2002), 59 OR (3d) 423, 213 DLR (4th) 308 (Sup Ct). 144 Saskatchewan Marriage Reference, ibid at paras 95-97. 158 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts If one accepts that fundamental rights to freedom of religion should be balanced against equality interests of the same-sex couples, many contradictory arguments present themselves. First, it could be argued that direct discrimination – by the marriage officers against same-sex couples – is more objectionable than the indirect discrimination against marriage officers. This was at issue in a CGB decision in the Netherlands which involved a Muslim student, whose religious convictions prevented her from shaking the hands of male teachers, parents, and fellow students.145 Adhering to these convictions meant violating a social duty to shake hands as a respectful form of greeting, and this lead to her expulsion from school. The student would be guilty of direct discrimination (against men), while the universal imposition of a duty to shake hands would discriminate indirectly on the basis of religion. The CGB solved the problem in a pragmatic way by suggesting that the student refrain from shaking the hands of both men and women. Although her attitude towards men would remain the same, equality legislation is concerned with actions and not with mere attitudes or thoughts. It is, however, not immediately clear why direct discrimination should be regarded in a more serious light than indirect discrimination, particularly in a context where it is not certain that the discrimination involved is “merely” indirect. Moreover, where, as in the Netherlands, the couple does not apply directly to the marriage officer, but to the government, they would not face the refusing official or even know that someone refused to marry them, provided an agreeable marriage officer was available. In other words, is awareness of indirect discrimination more serious than unawareness of direct discrimination? Nevertheless, even in these circumstances, it could be argued that same-sex couples’ awareness of the fact that the government accommodates objections against same-sex marriage generally (while not accommodating objections to other marriages) is in itself insulting and unjustifiably discriminatory. Possibly the strongest argument put forward by the CGB in the second conscientious objection case, is simply that the officials’ freedom of religion should be balanced against the rights of the same-sex couple and that the latter rights should take precedence because they are explicitly protected by law. Although rights to hold opinions or belief are also protected, rights to put religious and other opinions into practice are generally limited by other fundamental rights.146 When the conduct of marriage officers is ascribed to the 145 Decision No 2006-51 (2006), (CGB), online: government, they may not discriminate on the basis of sexual orientation.147 Furthermore, it could be argued that the government must maintain a discrimination free environment. If governments accommodate staff members who hold discriminatory opinions, other gay and straight government employees are repeatedly confronted by expressions of that discriminatory opinion, as shown in the Ladele litigation in the UK. Most directly in issue for many are the fundamental rights of the same- sex couples who wish to institutionalize their relationship by marriage or civil union. MacDougall has argued that a constitutional protection of sexual orientation should make it immune to any sort of argument based on morality. The government and its public servants ought not, in any circumstances, to be entitled to qualify the equal provision of services and entitlement based on morality arguments. To do otherwise makes such constitutional protection contingent in a way that contradicts the protection itself.148 Arguments that seek to balance the rights of the objecting officials against the rights of the couples seeking the institutionalization of their relationship obscure another issue of discrimination on the basis of religion. Meyerson argues that, where the State’s constitutional responsibility in relation to religion is not merely to distance itself from religion, but to actively foster religious diversity and tolerance, conflicts between religion and equality become more complex. When the state accommodates certain religious groups there will also be equality claims by members of religions which have not been similarly accommodated or by people who are not religious.149 The State has a duty not to favour certain religions above others, nor to favour the religious over those who hold no religious beliefs.150 The problem may therefore be more difficult than it first appears. We are faced not only with a choice between the conflicting equality claims of same- sex couples, on the one hand, and those who argue for the right to live in accordance with one’s faith on the other hand. There is the additional issue that governments which allow objections on one basis must also consider the rights of those people who would want to object on other bases. In South Africa and Scotland, the only basis upon which marriage officers can object is the sexual orientation of the couple. In contrast, both in the Netherlands and Canada (specifically, in Prince Edward Island, and in the proposed Saskatchewan legislation discussed above), religious objections on other 147 Saskatchewan Marriage Reference, supra note 58 at para 97. 148 Bruce MacDougall, “The Separation of Church and Date: Destabilizing Traditional Religion-Based Legal Norms on Sexuality” (2003) 36:1 UBC L Rev 1; Bruce MacDougall, “The Celebration of Same-Sex Marriage” (2000) 32:2 Ottawa L Rev 235. See also MacDougall & Short, supra note 146. 149 Denise Meyerson, “Multiculturalism, Religion and Equality” [2001] Acta Juridica 104 at 110-12. 150 In the UK’s Equality Act 2010, supra note 31, s 10(2), “belief” is defined to include a lack of belief. 160 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts bases are or would have been permitted. In practice, however, the objection will generally be based on sexual orientation alone. This fact was recognized in the Saskatchewan Marriage Reference, where Richards JA said that same-sex marriage “occupies centre stage” in this issue.151 B. Duty to Accommodate The other – and clearly, related – perspective on the problem focuses more on the duty to accommodate than on the hierarchy of discrimination protections. The arguments here are centred around the employer’s duty to provide reasonable accommodation of disabilities, pregnancy, disease, language, and so forth. The question then becomes whether an employee may claim to be exempted from a law or rule of general application in order to accommodate the employee’s religious or other beliefs. The general approach seems to be that determining whether reasonable accommodation is necessary or not depends on a context-sensitive balancing exercise between the various competing rights and interests. The first consideration concerns the nature and the importance of the right which has been limited – in these cases the right to practise religion. Included within this factor is also a consideration of the nature and history of the group whose religious or cultural rights have been affected. Smaller and less influential groups may be in special need of constitutional protection. The second leg of the inquiry asks whether the legislation or legal rule functioning to limit the right to put religious beliefs into practice serves a legitimate government purpose and whether it effectively achieves this purpose. The final aspect of the test is to determine whether or not a less restrictive method exists, which would attain the same government purpose. A proportionality inquiry such as this is a familiar concept in human rights law.152 This approach highlights two additional issues not canvassed by a mere comparison of the competing rights. The first is the need to compare the social and historical power relations between the different groups and the second is what might be called “the burden of inconvenience.” Comparing the two groups, it is clear that lesbians, gay men, and bisexuals have been historically marginalized, largely at the hands of socially and economically powerful religious institutions. In at least three of the jurisdictions 151 Supra note 58 at para 25. 152 See Christian Education South Africa v Minister of Education, [2000] ZACC 11; 2000 (4) SA 757 (CC) at paras 31-32; Prince v President of the Law Society of the Cape of Good Hope, [2002] ZACC 1; 2002 (2) SA 794 (CC) at para 114; MEC for Education: Kwazulu-Natal v Pillay, [2007] ZACC 21; 2008 (2) BCLR 99 (CC) at paras 76, 97; Patrick Lenta, “Religious Liberty and Cultural Accommodation” (2005) 122:2 SALJ 352; Kenneth Norrie, “Accommodating Religion to the Gay Equality Imperative in Family Law” in Jane Mair & Esin Orucu, eds, The Place of Religion in Family Law: A Comparative Search, European Family Law, vol 30 (Antwerp: Intersentia, 2011) 303. MacDougall et al, Conscientious Objections to Creating Same-Sex Unions n 161 surveyed, same-sex couples are probably numerically disadvantaged as against members of established religions which disapprove of their relationships.153 This disapproval is commonly publicly and unapologetically vocal in a way that is not accepted for other discriminatory views and beliefs. They also continue to experience stigmatization and exclusion, sometimes because of government exclusion in the areas of education, pensions, and so forth. According to a Dutch survey from 2007, over a third of the population regarded sex between males as “disgusting” and about half of the population finds men kissing in public offensive, whereas only 16% feels the same about a man and a woman kissing.154 This context of numerical, social, and possibly economic power imbalance, between same-sex couples and those who hold homophobic views, suggests that religious objections to officiating same-sex unions should not be accommodated, since such accommodation will inevitably strengthen the existing prejudice against gay men and women. Withholding accommodation from illegitimate beliefs, such as anti-Semitism, while seeking to accommodate other beliefs, such as homophobia, suggests that these latter beliefs are to be accorded legitimacy and respect. Since same-sex couples are unable to celebrate their marriages in most religious institutions, even in countries where legally-recognized religious marriage remains possible, they are more dependent on the state to formalize their relationships.155 Thus, their exclusion from religious institutions provides reason for the refusal by the state to accommodate conscientious objectors in the civil context. This argument does not apply, of course, in a jurisdiction like the Netherlands where religious marriages are not recognized. Another fact to consider is whether the refusal to accommodate conscientious objections serves a legitimate purpose (which involves the balancing of the competing rights above) and whether there are less restrictive ways of doing so. The proportionality inquiry in an accommodation analysis directs us to the practical question of whether there are ways of accommodating which could protect rights to religion without unduly infringing equality rights of same sex couples. It has been argued that same-sex couples are not unduly burdened by having some marriage officers refuse to serve them, but that they will, at most, have to make “one or two” more phone calls to find somebody 153 MacDougall & Short, supra note 146. 154 Saskia Keuzenkamp, SCP, “Monitoring van sociale acceptatie van homoseksuelen in Nederland” [Monitoring of Social Acceptance of Homosexuals in the Netherlands] in Gewoon homo zijn: Lesbisch en homo emancipatiebeleid 2008-2011 [Just Gay: Lesbian and Gay Emancipation] (The Hague: Ministerie van OCW, 2007) 65 at 67. 155 As in MJ v Nichols, supra note 125 at para 109, where the complainant was Roman Catholic and so could not have a religious marriage. 162 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts who will provide the service.156 This ignores the humiliation inherent in all discrimination, which is, after all, based on assertions of superiority. This burden is unwarranted given that there are clearly ways of accommodating religious objections without putting same-sex couples to this inconvenience and humiliation. Richards JA in the Saskatchewan Marriage Reference held that the proposed legislation allowing refusals to officiate “would perpetuate a brand of discrimination which our national community has only recently begun to successfully overcome. It would be a significant step backward if, having won the difficult fight for the right to same-sex civil marriages, gay and lesbian couples could be shunned by the very people charged by the Province with solemnizing such unions.” The judge thought that the negative effects would be felt not just by the individuals involved but by the “gay and lesbian community at large”.157 The Netherlands provide an example where couples do not approach marriage officers and risk rejection, but where the government simply assigns a marriage officer. That said, in the Saskatchewan Marriage Reference, the Court declined to decide whether such a “single entry point” system is constitutionally valid in Canada.158 Another practical solution would be for the legal creation of either a marriage or a civil union to be reduced to a simple bureaucratic function, similar to the registration of births, deaths, and adoptions. There is no reason why the state should be responsible, or even able, to provide a celebratory element to what is simply a change of legal status. Parties should be free to celebrate their marriages or civil unions, whether by way of religious ceremonies or otherwise, but this does not have to be coupled to the governmental function. Such a secularization of marriage would remove the basis for religious objections, since marriage officers would be engaged in a simple administrative act. The United Kingdom’s civil union regimes are entirely secular, with the role of registrars being entirely administrative. Although this regime did not prevent the registrar in Ladele from objecting, it did make the rejection of her objections much easier. For this reason the breach of the principle of secularism in allowing civil partnership registrations on religious premises in England and Wales159 may be seen as a retrograde step. The benefit of viewing the problem from a reasonable accommodation perspective is that it creates opportunities for practical solutions to clashes of principle.160 On the other hand, it has been suggested that reasonable 156 Trotter, supra note 124 at 377. 157 Saskatchewan Marriage Reference, supra note 58 at paras 94, 96. 158 Ibid at para 89. 159 Equality Act 2010, supra note 31, s 202. 160 See Carl F Stychin, “Faith in the Future: Sexuality, Religion and the Public Sphere” (2009) 29:4 Oxford J MacDougall et al, Conscientious Objections to Creating Same-Sex Unions n 163 accommodation may not be the best vehicle for solving these kinds of problems because it would generally work in favour of the more socially and economically dominant parties.161 IX. Conclusion Within each of the considered jurisdictions there is great complexity in the legal, political, and social backgrounds which surround the issues and resolutions concerning same-sex unions. The inherent complexity of the issue combined with the differences between the approaches taken in each jurisdiction may make it seem impossible to adapt solutions from one jurisdiction to another, in spite of the relative similarities between the jurisdictions vis-à-vis their degree of acceptance of homosexual unions. This makes it seem even more unlikely that such solutions could be transported into jurisdictions which do not share such similarities. The existence of constitutional rights, especially whether a particular jurisdiction recognizes the right not to be discriminated on the basis of sexual orientation, is of signal importance. Also important to the analysis are factors such as the way in which marriage is perceived in the jurisdiction generally, the given roles of civil servants, and whether or not a marriage officer is considered part of the “government”. The practical political clout of groups – in this case LGBT groups and their allies, and the opposing religious groups – is also very significant. Each of these factors varies between jurisdictions, creating a unique socio-political climate. Despite the varied nature of the four jurisdictional settings in which the “refusal to officiate” question arises, it is interesting to observe how this issue generates a focus on similar underlying issues. Are the competing claims in fact claims concerning rights? What sort of discrimination is involved? Does either the history of discrimination on the basis of sexual orientation or the population ratios of LGBT people versus religious people play any role in resolving discrimination issues? Do direct discrimination claims trump indirect discrimination claims? What are the limits of “religion” in religion- based claims? Is it easier to facilitate one sort of accommodation rather than another? Should the government simply “get out of the business” of marriage ceremonies as much as possible and so perhaps end state involvement in the Legal Stud 729 at 752-53. 161 See Elsje Bonthuys, “Reasonable Accommodation as a Mechanism to Balance Equality Rights and Rights to Religion in Family Law” (2010) 25:2 SA Public Law 666; Ayelet Shachar, “Group Identity and Women’s Rights in Family Law: The Perils of Multicultural Accommodation” (1998) 6:3 Journal of Political Philosophy 285. 164 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts celebration of such a private matter? Or, is it implicated in any event by virtue of according status on the basis of the ceremony? These questions and the issue at large are not an easy one to resolve, and it does a disservice to those involved with it to pretend otherwise. No resolution will satisfy everyone. Nonetheless, the matter requires that the state and its institutions consider how they prioritize the protections and rights of various groups in order to, if not please everyone, at least do the least amount of harm. Consideration of the experiences (positive and negative) of somewhat similarly situated jurisdictions is a useful method for arriving at an optimal solution for a given jurisdiction. It is not necessary to reinvent the wheel – not entirely at least. ‘Forced Marriage’ in Conflict Situations: Researching and Prosecuting Old Harms and New Crimes Annie Bunting1 In 2008, the Appeals Chamber of the Special Court for Sierra Leone (SCSL) found “forced marriage” to be a new crime against humanity, distinct from the crime of sexual slavery. With expert evidence on the abduction and forced labour of women and girls during the extended conflict in Sierra Leone, the SCSL found such forced conjugal association to be part of the widespread or systematic attack on the civilian population in Sierra Leone. This article examines the Court’s decision in the context of developments of international criminal law and with comparisons to similar gender violence in Liberia, Rwanda, Uganda and the Democratic Republic of Congo. The author argues that practices described as “forced marriage” in these conflict situations ought to be charged as “enslavement” and not a new crime against humanity – the other inhumane act of forced marriage. En 2008, la Chambre d’appel du Tribunal spécial pour la Sierra Leone (TSSL) a statué que le « mariage forcé » était un nouveau crime contre l’humanité, distinct du crime d’esclavage sexuel. Se fondant sur la preuve d’experts sur l’enlèvement et le travail forcé des femmes et des filles pendant le long conflit en Sierra Leone, le TSSL a conclu que ce genre d’association conjugale forcée faisait partie d’une attaque systématique et répandue de la population civile de la Sierra Leone. Cet article examine la décision du Tribunal dans le contexte des développements du droit pénal international, et à la lumière d’actes de violence envers les femmes au Liberia, au Rwanda, en Ouganda et dans la République démocratique du Congo. L’auteur suggère que les pratiques décrites comme « mariage forcé » dans ces situations de conflit devraient être poursuivies sous le crime d’« esclavage » et non comme un nouveau crime contre l’humanité. 1 Annie Bunting is an Associate Professor of Law & Society at York University. The author would like to thank the Social Science and Humanities Research Council (SSHRC) for its generous financial support of this international collaboration on ‘enslavement in war for forced marriage’; Paul Lovejoy and colleagues at the Harriet Tubman Institute for Research on the Global Migrations of African Peoples; Karlee Sapoznik for her excellent research and logistical assistance; Donn Short, the CJHR student editors and their anonymous reviewers; and my partners on this project. All errors remain my responsibility. 166 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts I. Introduction omen’s experiences of being kidnapped by rebels or soldiers, raped, confined, forced to provide domestic services, impregnated, and controlled during the war in Sierra Leone have been variously W 2 called the ‘bush wife’ phenomenon , sexual slavery, extreme cruelty, forced marriage or enslavement. These terms are used in colloquial and in legal contexts and their usage signals different levels of proof for those charged with crimes nationally or internationally or for those seeking reparations for their victimization. They also carry different connotations for victims and survivors. In other countries – Uganda, Liberia and Rwanda, for example – similar practices in conflict situations have been called mass rape, rape as a tool of genocide or weapon of war, the ‘comfort women’ phenomenon, sexual slavery or ‘forced marriage’. The kidnapping, rape, forced impregnation and assault of women during war are not new phenomena. Indeed, scholars have documented the role of sexual violence and other gender crimes in conflict situations in historical contexts related to war and enslavement.3 Holding perpetrators responsible for those crimes against women, however, is a relatively new phenomenon in international criminal law.4 Even after the Second World War, the Japanese commanders and soldiers who sexually enslaved women were not prosecuted for mass rapes of the so-called ‘comfort women’,5 and during the Nuremberg 2 Expert evidence from Zainab Bangura in Prosecutor v Alex Tamba Brima, SCSL-2004-16-T, Prosecution Filing of Expert Report Pursuant to Rule 94(bis) and Decision on Prosecution Request for Leave to Call an Additional Expert Witness (8 August 2005) (Special Court for Sierra Leone) online: trials, Nazi leaders were not subject to criminal prosecution in relation to sexual crimes.6 As the Geneva Conventions and international humanitarian law developed, rape and sexual slavery (but not forced marriage) were included in war crimes and crimes against humanity.7 Navanethem Pillay, current United Nations High Commissioner for Human Rights, states, “there has been a quantum leap forward in the prosecution of sexual violence before international tribunals. The jurisprudence of these courts represented a watershed for women whose wartime suffering had long been considered as an inevitable by-product of conflict, or as ‘collateral damage’ that could be more easily tolerated and, consequently, disregarded”.8 Forced marriage is one example of such jurisprudential evolution. Because international law had not previously listed forced marriage as a specific crime, the decisions of the Trial and Appeals Chambers of the Special Court for Sierra Leone (SCSL) on forced marriage are groundbreaking and complicated. In this article, I explore the crime of forced marriage in conflict situations and argue that the practices referred to as forced marriage in war ought to be charged as enslavement in international law and not a new separate crime.9 Secondly, I address throughout some of the critiques of international prosecutions of gender crimes that have emerged in the literature in the past five years, in particular those concerning the complexities of victimhood as presented in trials.10 Kamari Clarke provokes us to think critically about the international justice project in which we are engaged as scholars and activists, and our responsibility to the survivors, communities and victims: Through its texts, transcripts, images, videos, legal procedures, and performances, the [International Criminal] court institutionalizes victimhood in mediated ways that are also familiarly racialized as “African”. What is not made explicit … are the narratives of victim suffering: the child soldier and his or her status as victim are referentially signaled but never present in the substantive presence of the court. 6 Luis Moreno-Ocampo, “Keynote Address - Interdisciplinary Colloquium on Sexual Violence as International Crime: Interdisciplinary Approaches to Evidence” (2010) 35:4 Law & Soc Inquiry 839 at 842. 7 Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287, 6 UST 3516 (entered into force 21 October 1950) [Fourth Geneva Convention]; Valerie Oosterveld, “The Special Court for Sierra Leone’s Consideration of Gender-based Violence: Contributing to Transitional Justice?” (2009) 10 Hum Rts Rev 73 at 81 [Oosterveld, “Transitional Justice”]; Doris Buss “Rethinking ‘Rape as a Weapon of War’” (2009) 17 Fem Legal Stud 145. 8 Navanethem Pillay, “Address – Interdisciplinary Colloquium on Sexual Violence as International Crime: Sexual Violence: Standing by the Victim” (2010) 35:4 Law & Soc Inquiry 847 at 848. 9 Most readers are more familiar with ‘forced marriage’ as marriage without consent of one or both spouses. This topic is very much a live policy issue in Canada and Britain – but beyond the scope of this paper. 10 Buss, supra note 7; Kamari Clarke, Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa (Cambridge: Cambridge University Press, 2009) [Clarke]; Katherine Franke, “Gendered Subjects of Transitional Justice” 15 Colum J Gender & L 813. 168 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts Instead, articulated through their legal representatives, the violation of individuals and communities is negated and, ... comes to exist as a specter of suffering, a “ghost”.11 Finally, since this work forms part of a larger, collaborative project with partners in five countries, I will explore the importance of empirical research on this and other topics concerning women’s experiences of trauma in conflict situations. I briefly present the empirical context through case studies of forced marriage in Sierra Leone, Liberia, Uganda, Rwanda and the Democratic Republic of Congo (DRC). Non-governmental organizations working with survivors of sexual and other violence in these countries have much to offer to both the law-making process and scholarship on gender violence in war. While enslavement of women in war for the purposes of forced marriage is related to existing gender systems and marriage practices before conflicts in each of these countries, I will not discuss marriage without consent in times of peace.12 This article concerns international criminal law prosecutions for forced marriage. II. Forced Marriage in International Law In international human rights law and many domestic legal regimes, forced marriage refers broadly to cases where one or both spouses are married without their full and free consent. The 1962 Convention on Consent to Marriage, Minimum Age for Marriage and Registration for Marriage as well as the 1979 Convention on All Forms of Discrimination Against Women call on governments to prohibit child marriage and require full and free consent to marriage.13 Whether these marriages can be considered slavery depends on the conditions at the time of the marriage and also whether “the powers attaching to the right of ownership” are exercised over the spouse, as required by the 1926 definition of slavery.14 Historically, servile forms of marriage, whether in the context of war or not, can be included in the definition of slavery. The 1956Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery15 includes child exploitation and marriage without the right to refuse 11 Clarke, ibid at 107. 12 Catherine Dauvergne & Jenni Millbank, “Forced Marriage as a Harm in Domestic and International Law” (2010) 73:1 Mod L Rev 57. 13 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, 7 November 1962, 986 UNTS 393 (entered into force 1964); Convention on the Elimination of all Forms of Discrimination Against Women, 18 December 1979, 1249 UNTS 13 (Registered ex officio 3 September 1981). 14 1926 Slavery Convention, 25 September 1926, 60 LNTS 253 (entered into force 1927). Article 1 of the Slavery Convention reads, “Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”). 15 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Bunting, Forced Marriage in Conflict Situations n 169 where consideration is exchanged as forms of slavery as defined in theSlavery Convention of 1926.16 Here the language is “given in marriage” for money or consideration (not “taken for marriage”), “transferred” or “inherited”, indicating that the target of this prohibition was families treating girls and women as chattel. In other words, the 1956 Supplementary Convention was not imagining in this section enslavement in war for forced marriage, but familial and community practices. Nonetheless, I would argue both the 1926 and 1956 Conventions support the interpretation of contemporary forced marriage in conflict situations being prosecuted as slavery when certain factors are included. Despite the recognition that servile marriage is a form of slavery, the prosecution strategies and judicial decisions of the International Criminal Court (ICC) and the Special Court for Sierra Leone (SCSL) do not yet show a coherent approach or theory for holding perpetrators responsible for practices of forced marriage. While the international legal standards are clear that the constituent elements under the rubric of forced marriage – such as torture, rape, sexual slavery and forced impregnation – are crimes against humanity, it is not clear whether the totality of crimes amounts to slavery, sexual slavery or some other inhumane act. The academic commentary is also mixed in assessing the relative merits of charging forced marriage as slavery or as a new separate crime. If forced marriage is considered a form of slavery, it is seen as the most serious crime against humanity with global prohibition.17 On the other hand, to be prosecuted successfully as a form of slavery, the court must find that the perpetrator had powers attaching to ownership over a person (1926 Slavery Convention) or a similar deprivation of that person’s liberty (Rome Statute).18 The Appeals Chamber of the SCSL, for example, found that the practices described as forced marriage constituted a separate crime against humanity, as another inhumane act.19 The Trial Chamber in that case, known as the Armed Slavery, 7 September 1956, 226 UNTS 3 (entered into force 30 April 1957). 16 See Jean Allain, “On the Curious Disappearance of Human Servitude from General International Law” (2009) 11 J Hist Int’l L 303 [Allain, “Human Servitude”]; and Jean Allain, “Hadijatou Mani Koraou v. Republic of Niger” (2009) 103 Am J Int’l L 311 [Allain, “Koraou v Niger”]. 17 Joel Quirk, “Ending Slavery in all its Forms: Legal Abolition and Effective Emancipation in Historical Perspective” (2008) 12:4 Int’l JHR 529 at 532. 18 Supra note 14; Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 3, 37 ILM 1002 (entered into force 1 July 2002) [Rome Statute]. The crime against humanity of enslavement is defined in 7(2)(c) as, “…the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.” 19 Prosecutor v Alex Tamba Brima, SCSL-2004-16-A, Appeals Judgment (22 February 2008) (Special Court for Sierra Leone) online: UNHCR Forced Revolutionary Council (AFRC) case, found the practice to constitute the crime against humanity of sexual slavery.20 The International Criminal Court has issued indictments in Uganda for similar practices as ‘sexual enslavement’. In the Democratic Republic of Congo, the ICC indictments include war crimes of sexual slavery and rape. In the Extraordinary Chambers in the Courts of Cambodia (ECCC), lawyers for civil parties requested in February 2009 that the Prosecutor conduct a supplementary investigation with the aim to amend the indictments in a case to include forced marriage.21 More recently, the SCSL in the Revolutionary United Front (RUF) decision found commanders guilty of crimes against humanity including other inhumane acts of forced marriage.22 In 2009, the guilty verdicts with regard to forced marriage in the RUF case against Sesay, Kallon and Gboa were confirmed.23 It is important to underline that international criminal law holds individuals responsible for crimes against humanity, genocide and war crimes. In the cases before the ICC, the SCSL, their predecessors, the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the Former Yugoslavia (ICTY), the highest-ranking officials were indicted for such crimes. On the other hand, international customary law includes the prohibition on slavery and calls on states, not individuals, to be responsible for compliance and breaches. International human rights law is also a matter of state responsibility. Should states enact penal laws against slavery, individuals can be prosecuted under those provisions; this recently took place in Australia in the case of The Queen v Tang.24 While mass violations of human rights and slavery transcend these distinctions, the point is that international criminal law indicts individuals (often heads of rebel forces or authoritarian regimes), not governments, and is but one dimension of the international legal apparatus to consider when examining forced marriage in historical and comparative perspective.25 Forced marriage as an isolated practice or as an institution in war implicates family law, human rights, international humanitarian law and slavery past 20 Prosecutor v Alex Tamba Brima, SCSL-04-16-T, Judgment (20 June 2007) (Special Court for Sierra Leone) online: UNHCR and present. I turn now to the empirical context of forced marriage during the conflicts in Sierra Leone, Liberia, Uganda, Rwanda and DRC. In the section that follows, I will try to establish the reasons why the crimes described ought to be charged as enslavement and not as a separate crime of forced marriage – with a focus on the particular shared features across the conflicts. III. ‘Forced Marriage’ in the conflicts of Sierra Leone, Liberia, Uganda, Rwanda and DRC There were massive violations of civilians’ human rights that took place in each of the conflicts discussed in this article. However documentation is not always readily available – in particular in countries facing ongoing insecurity such as the DRC. The historical record is more accessible when governments have undertaken commissions for inquiry and reconciliation as in Sierra Leone and Liberia or where there have been criminal prosecutions as in Rwanda. During the ten-year conflict in Sierra Leone (1992-2002 approximately), egregious crimes against civilians took place. According to the final report of the Truth and Reconciliation Commission, Witness to Truth: Report of the Sierra Leone Truth and Reconciliation Commission,26 violations of adults and children included forced displacement, abduction, arbitrary detention, killing, destruction of property, assault/ beating, looting of goods, physical torture, forced labour, extortion, rape, sexual abuse, amputation, forced recruitment, sexual slavery, drugging, and forced cannibalism. The age and gender profile of victims varied according to the crime. The Truth and Reconciliation Commission (TRC) in Sierra Leone found that: …documented victims of forced recruitment, sexual slavery and rape were younger than the other violation types. Specifically, the following conclusions can be drawn: • 50% of the victims of forced recruitment with age documented were 14 years of age or younger when they were forcibly recruited; • 25% of rape victims with age documented were 13 years of age or younger; • 50% of sexual slaves with age documented were children aged 15 or under when they were abducted.27 Women and girls were subjected to sexual and gender-based violence including kidnapping, rape, forced marriage, forced impregnations and 26 Sierra Leone, Truth & Reconciliation Commission Report, Witness to Truth: Report of the Sierra Leone Truth & Reconciliation Commission (Sierra Leone: Truth & Reconciliation Commission, 2004), online: Sierra Leone Truth and Reconciliation Commission Report 28 Susan McKay & Dyan Mazurana, Where are the Girls? Girls in the Fighting Forces in Northern Uganda, Sierra Leone and Mozambique: Their Lives During and After War (Montréal: Rights & Democracy, 2003). 29 Supra note 26 at vol 3A, para 127. 30 Ibid at vol 2, paras 503, 505. 31 Ibid at para 511. 32 Ibid at para 512. 33 Ibid. In one excerpt from a victim testimony before the TRC, for example, Marion Kargbo states that she was raped by seven AFRC/RUF men in 1999 and “the boss of the seven men took me as his wife ... unfortunately for me my jungle ‘husband’ was killed during the exchange of firing. The second in command straight away became my next husband under serious threat.” Bunting, Forced Marriage in Conflict Situations n 173 forces. The government in Liberia did hold a Truth and Reconciliation Commission which published its report in 2009. With respect to women and girls, the Final Report of the Truth and Reconciliation Commission of Liberia (2009) found that “[a]ll factions engaged in armed conflict, violated, degraded, abused and denigrated, committed sexual and gender based violence against women including rape, sexual slavery, forced marriages and other dehumanizing forms of violations.”34 And with regard to forced marriage and sexual slavery: Women were kidnapped and forced into sexual slavery only to be passed around as ‘wives’ of roaming combatants. They were also forced to engage in hard labour making them both sex and labour slaves relegating them to the status of chattel slaves. Women suffered the indignity of having the children that they bore after being raped and held as sex slaves summarily taken away from them by combatants at the end of armed conflict. Many women that testified before the TRC either through statement taking or the hearings gave thousands of heart breaking narratives about how they were brutalized during armed conflict.35 In addition to some shared characteristics of how girls and women were treated during the conflicts in Sierra Leone, Liberia and elsewhere, courts and commissions have observed that practices described as forced marriage were not only the acts of individual combatants and soldiers. The SCSL also heard testimony from women about their experiences of gender-based violence, included abduction, rape and forced marriage. The trial judgment in the RUF case found that “forced marriage was important to the RUF both as a tactic of war and means of obtaining unpaid logistical support for troops [emphasis added].”36 This is an important dimension of the practice which, I would argue, is better captured in the social and legal category of enslavement rather than the crime against humanity of forced marriage. The former connotes an institutionalized process during conflict and is consistent with the historical practices of the use of slave labour during wars in pre-colonial and colonial Africa. During the war in Uganda, the practice of forced marriage of girls and women most closely resembled what happened in Sierra Leone. Khristopher Carlson and Dyan Mazurana interviewed 103 women and girls who were abducted by Lord’s Resistance Army (LRA) combatants.37 Carlson and 34 Liberia, Truth and Reconciliation Commission of Liberia, Volume II: Consolidated Final Report (Liberia: Truth and Reconciliation Commission of Liberia, 2009) at 17, online: Truth and Reconciliation Commission of Liberia Mazurano “also interviewed parents and family members of abducted females; ex-LRA combatants; religious, clan, and community leaders; local government officials; Acholi and Langi clan leaders and people responsible for customary law; lawyers, and local, national, and international NGOs working in northern Uganda.”38 Much like the finding of the Special Court for Sierra Leone, women’s labour through forced marriage in Uganda was a tactic of war: Our evidence reveals that the crimes committed against these females were not haphazard, but were methodically organized by the senior leadership of the LRA. The presence of forced wives in the LRA served to bolster fighter morale and support the systems which perpetuate cycles of raiding, looting, killing, and abduction. The LRA leadership exercised rigid control over the sexuality of abducted women and girls through intimidation, discrimination, and violence. The LRA leader, Joseph Kony, is thought to have forcibly married more than 40 females and to have fathered dozens of children through rape and forced marriage. At any one time his commanders had on average five forced wives, while lower level fighters had one or to two.39 In both Sierra Leone and Uganda, women spoke of being referred to as a ‘wife’ despite the fact that in neither country would they be considered legally married, in customary or civil law. The Trial Chamber II of the Special Court in the AFRC case heard expert testimony in 2005 from Zainab Bangura (now a Minister in the Sierra Leone government) on the issue of forced marriage. The Prosecution commissioned her report about both the AFRC and RUF and in it “forced marriage was captioned as the ‘Bush Wife Phenomenon’”:40 According to Zainab Bangura, forced marriage arose when a young girl/ woman was abducted during the war, came under the total control and command of a rebel/ soldier (captor) claiming her to be his wife. This happened when the captor proclaimed yu na mi wef, in the Krio lingua franca meaning ‘you’re my wife’. At this point the victim was left with no option to accept the ‘marriage’… In return, the ‘bush husband’ ensured that he provided protection and support in terms of food and clothing.41 Other narratives of forced marriage during the war are consistent with Zainab Bangura’s general description. Reparations for human rights violations were recommended by the TRC in Sierra Leone and the National Commission for Social Action (NaCSA) proceeded to take claims.42 Survivors of gender violence who have made reparations claims to the NaCSA, for example, 38 Ibid. 39 Ibid. 40 Ibrahim Jalloh, “Analyzing Bush Wife Phenomenon at the Special Court Trials” Centre for Accountability and Rule of Law (2 May 2006) at para 1, online: Centre for Accountability and Rule of Law describe forced marriage during the war as when they were raped, abducted and then the rebel said, “you are now my wife”.43 One woman I interviewed in August 2010,‘M’, gave an interview to the SCSL investigators but did not testify in court. She explained in her words that she spent five years in the bush as a ‘wife’. After the first combatant was killed, she was assigned to another.44 Of 321 women’s claims for reparation, which I sampled randomly, approximately one quarter of the claimants talked about the designation of ‘wife’ in her claim. Many spoke of rape and other losses during the conflict. In the required description of the event leading to the human rights abuse, as the reparation form titles it, women spoke of being “forced into marriage”, “taken as a wife”, or “used as their wife”.45 The use of the term ‘bush wife’ or ‘forced marriage’ as in the decisions from the Special Court, however, is not without its critics. For example, a judge of the Supreme Court of Sierra Leone commented that what happened to women in the prolonged war in the country was not “forced marriage – that is what happens in customary law marriages”, referring to marriage without the consent of the bride.46 A woman’s rights activist objected to the use of the term marriage; the reason ‘forced marriage’ in the Sierra Leone conflict was not ‘marriage’ is that is was not arranged nor arranged by families, she explained.47 The former Deputy Prosecutor for the SCSL, Joseph Kamara, also noted that the term ‘bush wife’ predates the years of the conflict in Sierra Leone. The bush wife phenomenon previously referred to when women were “taken” as a wife without the proper arrangements of the families.48 These comments raise important questions that are not explored in the SCSL decisions. What are the similarities and differences between the rape and ‘marriage’ of women before and during the conflict in the Sierra Leone? How do women understand the differences? Is it important to distinguish forced marriage or bush wife practice from enslavement during war? 43 Rosaline M Carthy, “Forced Marriage in Conflict Situations – The Sierra Leone Experience” (Paper delivered at the Forced Marriage in Conflict Situations International Workshop, York University, 15 October 2010), [unpublished]. 44 Interview of ‘M’ (August 2010) in Freetown, Sierra Leone. 45 Claims from National Commission for Social Action (NaSCA), (2011) on file with the author. A full analysis of the reparations claims and interviews is not the purpose of this article but is the focus of further research along with the women’s umbrella organization, Women’s Forum of Sierra Leone. 46 Interview of Justice Thompson, Judge of Supreme Court of Sierra Leone (August 2010). 47 Interview of women’s rights activist (August 2010). 48 Interview of Josepha Kamara, former Deputy Prosecutor for the SCSL (August 2010). 176 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts During the Rwandan genocide, women were subjected to extreme sexual violence and gender crimes.49 This was documented by Binaifer Nowrojee in her important Human Rights Watch report Shattered Lives: Sexual Violence During the Rwanda Genocide and its Aftermath.50 Enslavement for forced marriage, however, is very little discussed with regard to gender violence during and after the Rwandan genocide. I have found only two references to forced marriage as a form of gender violence. In the introduction to the 1996 report, Nowrojee writes: Other women managed to survive only to be told that they were being allowed to live so that they would “die of sadness.” Often women were subjected to sexual slavery and held collectively by a militia group or were singled out by one militia man, at checkpoints or other sites where people were being maimed or slaughtered, and held for personal sexual service. The militiamen would force women to submit sexually with threats that they would be killed if they refused. These forced “marriages,” as this form of sexual slavery is often called in Rwanda, lasted for anywhere from a few days to the duration of the genocide, and in some cases longer.51 Jennie Burnet similarly emphasizes sexual violence and includes forced marriage in the list of violations experienced by women: A key feature of the 1994 genocide in Rwanda was sexual violence. Sexual violence (ranging from forced marriage to rape to sexual torture and mutilation) was used to torture, terrorize, or kill Tutsi women and girls; to humiliate Tutsi men who could not protect their wives or daughters; and to reward militiamen and male civilians who participated in the genocide.52 The practice of forced marriage as a form of sexual violence during the genocide was rarely spoken about, never prosecuted and remains all but undocumented in research on the genocide. IV. Enslavement and Sexual Slavery As I discussed above, the SCSL established the new crime against humanity of “other inhumane act (forced marriage)” in the AFRC Appeals 49 Sandra Ka Hon Chu & Anne-Marie de Brouwer, eds, The Men Who Killed Me: Rwandan Survivors of Sexual Violence (Vancouver: Douglas & McIntyre, 2009). 50 Binaifer Nowrojee, Human Rights Watch, Shattered Lives: Sexual Violence during the Rwandan Genocide and its Aftermath (New York: Human Rights Watch, 1996) [Nowrojee, Human Rights Watch]; Beth Van Shaack, “Engendering Genocide: The Akayesu Case Before the International Criminal Tribunal for Rwanda” Legal Studies Research Papers Series, Working Paper No. 08-55, July 2008. See also Binaifer Nowrojee “‘Your Justice is Too Slow’: Will the ICTR Fail Rwanda’s Rape Victims?” (United Nations Research Institute for Social Development (UNRISD) Occasional Paper, Geneva, November 2005) [Nowrojee, “Your Justice”]. 51 Nowrojee, Human Rights Watch, supra note 51 at 2. 52 Jennie E Burnet, “Sexual Violence and Ethnic/Racial Identity in the 1994 Rwandan Genocide” (Paper delivered at the Sexual Violence and Conflict in Africa Workshop, Carleton University, 5-6 May 2010), [unpublished]. Bunting, Forced Marriage in Conflict Situations n 177 Chamber decision to hold commanders responsible for the harms described as the “bush wife phenomenon”.53 In that case, the legal precedent was set but convictions on this ground were not entered.54 The RUF case, however, did find commanders guilty of this crime against humanity. In the RUF Appeals decision, the court laid out the elements according the SCSL statute: With respect to forced marriage, the Appeals Chamber recalls that the offence “describes a situation in which the perpetrator[,] … compels a person by force, threat of force, or coercion to serve as a conjugal partner.” The conduct must constitute an “other inhumane act,” which entails that the perpetrator: (i) inflict great suffering, or serious injury to body or to mental or physical health; (ii) sufficiently similar in gravity to the acts referred to in Article 2.a through Article 2.h of the Statute; and that (iii) the perpetrator was aware of the factual circumstances that established the character of the gravity of the act. As a crime against humanity, the offence also requires that the acts of the accused formed part of a widespread or systematic attack against the civilian population, and that the accused knew that his crimes were so related.55 This definition of the new crime of forced conjugal association “substantially adds to the recorded history of gender-based violence by the AFRC within the conflict in Sierra Leone, thereby positively contributing to transitional justice in that country.”56 This definition may also have substantial impact on other indictments from the ICC. The SCSL is now wrapping up its work in Freetown and has moved to the legacy stage of its mandate. The two most important precedents from the perspective of the offices of the Prosecutor and Registrar of the Special Court are its decisions on recruiting children into soldiering and forced marriage.57 The former Special Rapporteur on Systematic Rape, Sexual Slavery and Slavery-Like Practises During Armed Conflict, Gay J. McDougall, reported in 1998 that sexual slavery “also encompasses situations where women and girls are forced into ‘marriage’, domestic servitude or other forms of labor that ultimately involve forced sexual activity, including rape by their captors.”58 Survivors of forced marriage in Sierra Leone and elsewhere, and their advocates may or may not agree with this characterization as ‘slavery’ or the distinctions drawn between sexual slavery and forced marriage. Indeed 53 Supra note 19. 54 Oosterveld, “Transitional Justice”, supra note 7; Valerie Oosterveld, “Lessons from the Special Court for Sierra Leone on the Prosecution of Gender-Based Crimes” (2009) 17:2 Am U J Gender Soc Pol’y & L 407 [Oosterveld, “Lessons”]. 55 Prosecutor v Issa Hassan Sesay, Morris Kallon, Augustine Gbao, SCSL-04-15-A, Appeals Judgment (26 October 2009) (Special Court for Sierra Leone) online: UNHCR The key question here is not so much whether specific practices are identical to slavery, at least in part because slavery can be defined in a number of ways, but instead whether they share sufficient features in common with slavery to be rendered illegitimate as a result of prior anti-slavery commitments.59 In the context of forced marriage within the Lord’s Resistance Army in Uganda, for example, Kristopher Carlson and Dyan Mazurana found that “[w]hat is often overlooked when forced wives are characterized as solely sexual slaves is a particular quality of injustice they have suffered – the forced imposition of the status of marriage.”60 A number of other scholars agree that sexual slavery does not capture this specific harm. Michael Scharf and Suzanne Mattler argue that “[s]exual slavery describes the loss of personal freedom and sexual violence, but does not speak to the forced domestic labor, childbearing, childrearing, and degradation of the institution of marriage.”61 Neha Jain also criticizes the Trial Chamber’s decision in the AFRC case for “emphasizing the role of sexual abuse as an inherent component of the forced marriages in Sierra Leone and concluded that the elements constituting forced marriage in the context of Sierra Leone were completely subsumed within the crime of sexual slavery.”62 The Appeals Chamber of the SCSL in the AFRC case also found sexual slavery to be an inadequate categorization of forced marriage. Indeed the Appeals Chamber found, by contrast, that forced marriage “is not predominantly a sexual crime.”63 It found the facts of forced marriage to constitute a distinct crime within the category of “Other Inhumane Acts”64 and focused on the harms of “forced conjugal association” or partnership and the “long-term social stigmatization”.65 Some commentators have applauded this development in international criminal law for recognizing that forced 59 Supra note 17 at 532 (emphasis added). 60 Supra note 37 at 15. 61 Michael P Scharf & Suzanne Mattler, “Forced Marriage: Exploring the Viability of the Special Court for Sierra Leone’s New Crime Against Humanity” (2005) 1:2 Case Research Paper Series in Legal Studies at 17. 62 Jain, supra note 3 at 1018-19; see Oosterveld, “Lessons”, supra note 54. 63 AFRC Case, supra note 19 at para 195. 64 Ibid at paras 197-203. 65 Ibid at paras 197, 199. Bunting, Forced Marriage in Conflict Situations n 179 marriage in war is more than sexual slavery66 or “more than the sum of its constituent acts”.67 Amy Palmer concludes, in her analysis of the AFRC appeal decision, that forced marriage “should be prosecuted as a separate crime under international law in order to appropriately recognize its gravity, prevent future tragedies, properly recognize the suffering of the victims, and facilitate an examination of the traditional marital union within differing cultures across the world.”68 Scharf and Mattler also argue that forced marriage is a “valid and viable category of crime against humanity”69 and ought to be prosecuted as the “unique crime that it is.”70 A similar argument could be used to support the view of forced marriage in conflict situations as “enslavement”, without reducing the practice to only sexual slavery. Due to concerns about the misuse of the term ‘marriage’ in the context of war and conflict, some scholars criticize using forced marriage as an appropriate heading under which to prosecute these acts. Karine Belair, for one, argues that the term marriage should be avoided because the crime in Sierra Leone was “one of sexual slavery, poorly veiled by the euphemism ‘marriage.’”71 For the most part, however, Palmer, Oosterveld and others have welcomed the recognition of forced marriage as a distinct crime in international law as a positive development in transitional justice.72 What is less discussed in the literature is an examination of forced marriage as the crime against humanity of enslavement or as contemporary slavery: how neither ‘sexual slavery’ nor ‘the inhumane act of forced marriage’ may fit the crime for forced marriage. In order to recognize the gravity ofthe crime, the practice of forced marriage in war may be considered enslavement according to the Rome Statute73 and prosecuted as such. Jean Allain argues that servile marriage (where a woman or girl is purchased, transferred or 66 Jain, supra note 3 at 1022; see Augustine S J Park, “‘Other Inhumane Acts’: Forced Marriage, Girl Soldiers and the Special Court for Sierra Leone” (2006) 15:3 Soc & Leg Stud 315. 67 Amy Palmer, “An Evolutionary Analysis of Gender-Based War Crimes and the Continued Tolerance of ‘Forced Marriage’” (2009) 7:1 Northwestern Journal of International Human Rights 133 at 159. 68 Ibid. 69 Supra note 61 at 2. 70 Ibid at 24. 71 Karine Belair, “Unearthing the Customary Law Foundations of ‘Forced Marriages’ during Sierra Leone’s Civil War: The Possible Impact of International Criminal Law on Customary Marriage and Women’s Rights in Post-Conflict Sierra Leone” (2006) 15 Colum J Gender & L 551 at 557. 72 Micaela Frulli, “Advancing International Criminal Law: The Special Court for Sierra Leone Recognizes Forced Marriage as a ‘New’ Crime Against Humanity” (2008) 6 Journal of International Criminal Justice 1033. 73 Rome Statute, supra note 18, Article 7(2)(c). 180 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts inherited) meets the definition of enslavement as a crime against humanity.74 It is important to note, however, that in order to meet the constituent elements of a crime against humanity, forced marriage / enslavement must be part of a systematic and widespread attack on the civilian population. This raises important questions about the legal threshold to be met to prove enslavement in non-conflict situations. Like Allain, I would argue that this threshold would rarely be met in contexts outside war. And again, servile marriage does not include all non-consensual marriage. The Rome Statute, establishing the International Criminal Court and its Elements of Crimes, expands the 1926 definition of slavery – “any or all of the powers attaching to the right of ownership” over a person – with the additional phrase “or similar deprivation of liberty”.75 Enslavement in the Rome Statute explicitly signals analogous situations. Thus, there is good reason to argue that the practice described variously as the “bush wife phenomenon” or “forced marriage” in Uganda or Sierra Leone would meet the definition of enslavement. Any effort to designate contemporary practices as forms of slavery remains open to charges of analytical overreach and rhetorical excess.76 Even if we accept that some practices can be legitimately be described as a form of slavery or enslavement, it does not necessarily follow that the relevant thresholds can be easily applied to specific cases of forced marriage in either wartime or peacetime. Some observers will be very concerned that prosecuting practices referred to as ‘forced marriage’ in conflict situations such as slavery will lead to higher thresholds for proving forced marriage in non-conflict situations. I would argue that the context and conditions of war are substantively different from times of relative peace and, therefore, forced marriage in non-conflict zones would not necessarily meet the definition of slavery nor be required to. The relevant definition of servile marriage comes from the Supplementary Convention of 1956 and not all forms of marriage without consent are servile marriage.77 But what does an examination of the specific forms of servile marriage (purchased, transferred, inherited spouse) tell us about forced marriage in war? How does it push our analysis of gender crimes in conflict situations? I would argue, as Belair, that to prosecute forced marriage as a separate crime 74 Jean Allain, “Servile Marriage as Slavery and its Relevance to Contemporary International Law” (2010) [unpublished]. 75 Rome Statute, supra note 18 at art 7(1)(c); See also Proceedings of the Assembly of State Parties, 1st Sess, ICC-ASP/1/3 (2003) Article 8(2)(b)(xxii)-2: “The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.” 76 Benedetta Rossi, “Introduction: Rethinking Slavery in West Africa” in Benedetta Rossi, ed Reconfiguring Slavery: West African Trajectories (Liverpool: Liverpool University Press, 2009). 77 Supra note 15, at arts 1, 7. Bunting, Forced Marriage in Conflict Situations n 181 risks reinforcing a very gendered version of the crimes experienced by women and men. Nowhere have I seen mention of indictments citing the crime of being forced to marry – men are not seen as ‘victims’ of forced marriage and this form of sexual violence. While charging this crime as sexual slavery reduces the harms to the sexual, charging as forced marriage may reduce the harms to the conjugal. Enslavement by contrast can include both and casts our attention to human exploitation, bondage, control and violence. On the other hand, while to be referred to as a forced wife is a gendering process, being called a [sex] slave is even more complicated. The definition of slavery is one predicated on ownership, control and transfer of people as chattel. Historians of slavery have argued that being treated as property or controlled as if owned by another person does not mean that she does not have agency. Indeed, there were slave rebellions and survival techniques. The process of being enslaved does not negate human agency nor destroy all subjectivity – it is the treatment of another person as if they are not human, as chattel to be bought and sold, transferred or inherited. There is nothing new about women’s bodies and labour being used in war; there is nothing new about sexual violence in war. But what is distinctive about the attachment of the status of wife in conflict situations? Since women were assigned to a combatant and transferred from one to another by order of a commander, I would argue the practice meets the definition of both deprivation of liberty and powers attaching to ownership. Does this have an historical antecedent in concubinage or other slave practices? 78 As Paul Lovejoy argues: [A]ll enslaved women and all enslaved children in the Trans-Atlantic Slave Trade can be considered to have been civilian casualties… The designation of ‘civilian casualties’ is not intended to trivialize the experiences of slavery, but to suggest that a comparison with modern forms of collateral damage to civilian populations should be perceived in historical perspective.79 V. Further Research Questions The particular cases of sexual and gender-based violence in each of the five conflicts discussed here need to be analyzed together from the perspective of forced marriage/enslavement of women during war. While Sierra Leone and Uganda seem to have some commonalities, and narratives from survivors confirm the use of the term ‘bush wife’ and its associated harms in both cases, there may be important differences. Further, given the distinct cultural and 78 See Paul E Lovejoy, Transformations in Slavery: History of Slavery in Africa, 2d ed (Cambridge: Cambridge University Press, 2000). 79 Lovejoy, “Internal Markets”, supra note 3 at 34. 182 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts political histories in each country, further empirical research is needed in order to understand how and why women were victimized during these conflicts.80 Legal prosecution tends to flatten these empirical distinctions. I am also aware of the dangers of focusing once again on sexual violence. Maria Eriksson Baaz and Maria Stern, in The Complexity of Violence: A critical analysis of sexual violence in the Democratic Republic of the Congo, also critically assess the focus on rape in the DRC in order to identify causal factors for this violence.81 They write: The most prevalent storyline of violence in the reporting on the warscape of the Democratic Republic of Congo (DRC) has been rape. Indeed, the DRC has become infamous globally through the reports on the massive scale of sexual violence. While other forms of violence and abuse have also been committed on a massive scale, it is sexual violence that has attracted the lion’s share of attention, especially among ‘outside’ observers.82 Further, sexual violence in the DRC is most often understood to be violence against women perpetrated by men. Johnson et al. conducted extensive surveys in 2010 in over 1000 households in eastern DRC: Rates of reported sexual violence were 39.7% among women and 23.6% among men. Women reported to have perpetrated conflict-related sexual violence in 41.1% of female cases and 10.0% of male cases. Sixty-seven percent of households reported incidents of conflict-related human rights abuses.83 The authors conclude that “many women and men in the area of Eastern DRC included in this study are survivors and perpetrators of sexual violence and other human rights violations.”84 This important study underscores the need to challenge the preoccupation with gendered victimhood; while the majority of victims are female, they are not only female. And while an astonishing number of women are subject to human rights abuses, they are not only victims – they are sometimes perpetrators and active agents. In my own work, one “ghost” haunting the discussion of forced marriage is the perpetrator/“bush husband”. There is very little discussion, if any, in the literature about combatants who were forced to “take a wife” as part of an assault on a civilian population. How does thinking about male combatants as 80 SSHRC Partnership Development Grant 2011-2014 (Bunting). 81 Maria Eriksson Baaz & Maria Stern, “The Complexity of Violence: A critical analysis of sexual violence in the Democratic Republic of Congo (DRC)” (2010) (Sita Working Paper on Gender based Violence, Swedish International Development Cooperation Agency). 82 Ibid at 7. 83 Kirstin Johnson et al, “Association of Sexual Violence and Human Rights Violations With Physical and Mental Health in Territories of the Eastern Democratic Republic of the Congo”(2010) 304:5 Journal of the American Medical Association 553 at 553. 84 Ibid, at 561; See also Gaelle Breton-Le Goff, “Crimes of Forced Marriage / Slavery in the Democratic Republic of Congo” (Paper delivered at the Forced Marriage in Conflict Situations International Workshop, 15 October 2010), [unpublished]. Bunting, Forced Marriage in Conflict Situations n 183 survivors/victims (much like child soldiers who committed atrocious crimes) change the gendered analysis of forced marriage? Chris Dolan, in his book Social Torture: The Case of Northern Uganda, 1986- 2006, has written about masculinity and gender violence in northern Uganda, and argues that, “paradoxical though it may seem, the closer a man comes to achieving the [hegemonic male] model, the greater his vulnerability to male sexual violence at the hands of other men.”85 Xabier Agirre Aranburu also cautions against a “reductionist focus on female victims” and notes that there was an “extensive pattern of sexual abuse of male soldiers” found in Liberia.86 Men are extremely reluctant to speak of this violence. Dolan’s work raises important and related future research questions. I would argue that empirical research needs to include interviews with former ‘bush husbands’ as well as commanders wherever possible. Further, research ought not be limited to sexual violence. Economic, social and other violence are connected to gender harms. As Baaz and Stern write, sexual and gender based violence “can neither be understood nor effectively countered if approached and studied in relative isolation. It has to be seen in a context where grave human rights violations occur daily.”87 In the conflict in the Democratic Republic of Congo and the genocide in Rwanda, there is a hyper-visibility of sexual violence against women. Rarely were gender crimes described as forced marriage.88 Burnet writes: [A]n unknown number of Rwandan girls/women were pressed into sexual relationships with RPF soldiers after they reached the safety of internally displaced persons camps within RPF held territory... Focusing solely on sexual violence committed by Hutu perpetrators against Tutsi victims obscures the full complexity and contradictions of sexual violence in the context of genocide.89 By contrast, investigators, activists and the media often discussed forced marriage or the ‘bush wife phenomenon’ in the conflicts of Liberia, Sierra Leone and Uganda. As history reminds us, the patterns of gender violence and types of human rights violations in conflict situations can vary significantly.90 Does ‘bush wife’ even mean the same thing in Sierra Leone as it does in Uganda? What about ‘wife’ and ‘marriage’ during the Rwanda genocide and violence in the DRC? There are important historical records from truth and reconciliation commissions in Liberia and Sierra Leone, as well as 85 Chris Dolan, Social Torture: The Case of Northern Uganda, 1986-2006 (New York: Berghahn Books, 2009) at 211. 86 Xabier Agirre Aranburu, “Sexual Violence beyond Reasonable Doubt: Using Pattern Evidence and Analysis for International Cases” (2010) 35:4 Law and Soc Inquiry 855 at 862. 87 Supra note 81 at 56. 88 Breton-Le Goff, supra note 84. 89 Supra note 52. 90 Aranburu, supra note 86 at 859. 184 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts witness statements made to investigators in Rwanda, DRC, Uganda and Sierra Leone. These have not been systematically analyzed looking at forced marriage/enslavement. The full record of witness statements pertaining to forced marriage is not yet available to researchers, but it is clear there will be a rich archive of information pertaining to sexual violence and gender- based crimes when this material is available. Finally, non-governmental organizations working with survivors in each of these countries have a wealth of knowledge about experiences captured by the term ‘forced marriage’, but this information is often hard to find. I hope to better include this knowledge through the research collaboration and partnership with the Women’s Forum of Sierra Leone, AVEGA in Rwanda, Clinique Juridique de Goma, DRC, Coalition for Women’s Human Rights in Conflict Situations, and Feinstein International Center’s work in northern Uganda. It is imperative to document contemporary experiences more precisely and to compare these cases with historical practices also referred to as forced marriage. Thus, ours is a research project which brings together historians of slavery and women’s human rights scholars to contribute to the growing literature on gender crimes in international criminal law as well as the current debates on servile marriage, gender and slavery – by putting these debates in conversation with one another. I see this type of research as engaged in what Sally Engle Merry calls a “deterritorialized enthnography”, “an ethnographic engagement with the fragments of a larger system that recognizes that the system is neither coherent nor fully graspable”.91 In exploring how the international criminal justice system frames experiences under the heading of ‘forced marriage’ or ‘slavery’ in different sites and the corresponding question of how victims and survivors understand these events, I seek to contribute to the “ethnographic study of global reform movements”.92 Not only will research be concerned with capturing the flow of international justice ideas around ‘forced marriage’,93 but it will also develop tools for research and advocacy. VI. Conclusions Two hundred years after the British abolished their slave trade (1807), it is now the language of “humanitarianism” that embodies the international discourses around human entitlements to life… This new internationalized form of governance is subtler than earlier colonial forms yet represents a more tragic set of realities. International institutions work through the law to craft “victims” and “perpetrators” (or, indeed 91 Sally Engle Merry, Human Rights & Gender Violence: Translating International Law into Local Justice (Chicago: University of Chicago Press, 2006) at 29. 92 Ibid at 28. 93 Ibid at 29. Bunting, Forced Marriage in Conflict Situations n 185 “victim-perpetrators”) within the parameters of legal science … to perform them, yielding new subjects through which humanitarianism is further legitimized.94 In a recent case from Niger that was heard by the Community Court of Justice of the Economic Community of West African States (ECOWAS), Niger was found responsible for failing to protect one of its citizens from slavery.95 Hadijatou Mani Karoua was sold at the age of twelve to a tribal chief according to a local customary practice called ‘Wahiya”. When she tried to flee almost ten years later, her ‘master’ claimed that she was his ‘wife’. Referring to international conventions, the absolute prohibition on slavery, and the practice of international criminal tribunals, the Court found that there can be “no doubt that the applicant was held in slavery for 9 years in violation of the legal prohibition of this practice.”96 This is a rare case before a regional international court that is a historic finding of slavery.97 Here too we have a case of overlapping considerations of customary family law, slavery and international criminal law that raises many of the broad questions we are asking in our research project. Belair discusses how the investigation of sexual slavery and the experiences of abducted and raped women and girls during the conflict had a crucial impact on customary marriage debates in Sierra Leone. Indeed, she argues that the Truth and Reconciliation Commission’s findings on sexual slavery affected its call for better compliance with Sierra Leone’s obligations under the Women’s Convention, CEDAW.98 The government of Sierra Leone has recently amended its law on the validity of customary marriage to require that both spouses be eighteen years of age and consent to the marriage. Interestingly, when I attended an outreach event in Port Loko with the SCSL staff in August 2010, the most animated moment in the meeting occurred when Patrick Fatoma discussed the new marriage act and said, “if you marry a woman without her consent, you cannot marry another woman.” Men, in particular chiefs and elders, reacted by shaking their heads, laughing and were visibly uncomfortable with this proposition.99 Thus, we can see the potential for developments in transitional justice and international criminal law to directly impact domestic socio-legal reform and discussions about gender and marriage. 94 Clarke, supra note 10 at 110. 95 Hadijatou Mani Koraou v The Republic of Niger, ECW/CCJ/JUD/06/08 Judgment (27 October 2008) (Economic Community of West African States: Community Court of Justice) online: UNHCR