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It is a great pleasure for me to deliver my keynote speech to you all at such a valuable regional symposium dedicated to the states of the Americas becoming better able to protect human rights in our region and ensure a commitment to reconciliation.

I thank the Université du Québec à Montréal, the Pierre Elliott Trudeau Foundation and Prof. Bernard Duhaime for organizing this event, providing the venue and for inviting me to present this important topic to you: the Engagement of Commonwealth countries with the Inter-American Commission on Human Rights (IACHR or Commission), and more particularly, Canada’s involvement with and further engagement with our Inter-American System of Human Rights (IASHR). I will touch on subjects such as the IACHR’s continuing relationship with Canada, the important role Canada has played in the past in assisting the Commission in advancing its thematic mandates, as well as the instrumental role it could play in future years and decades.

I believe this conference is quite fitting and timely. As the Commission celebrates its 60th anniversary in 2019, it is engaged in a process of reflecting on past accomplishments, as well as on areas needing improvement. As the Commission looks ahead to future objectives, it is fair to say that it hopes that Canada will play a strong leadership role in matters relating to human rights in our hemisphere. This can only be achieved through Canada’s deeper engagement with our regional human rights system.

I. The Commonwealth’s Engagement with the Organization of American States (OAS) and the IACHR

I am from a Caribbean Commonwealth country and the Caribbean countries have the perception that they are isolated from the attention and work of the Commission. This may be due in part to linguistic issues, but this alone is not enough to explain their lack of involvement. There are enough English, French, Spanish and Portuguese-speaking lawyers at the Secretariat of the Commission to meet Caribbean countries’ language needs. The Commission has to bear a good part of the blame for this reality and acknowledge that it does not sufficiently engage with these countries on the specific issues that they face and focuses almost excessively on Latin American issues. Caribbean countries’ perception is, therefore, understandable. Additionally, the composition of the Commission and its Secretariat reinforces both English and French-speaking Caribbean States’ feelings of isolation and/or exclusion.

In the recent years, however, the Commission has been trying to reverse this tendency. For example, Caribbean States were made a priority in its 2017-2021 Strategic Plan of Action[2]. However, it is important to point out that engagement is and must be a two-way street. If the Commission has not been engaging as much as it should have with Commonwealth Countries and Haiti, it is also in part because of these countries’ civil societies and State agencies’ lack of stated interest in and active engagement with the Commission.

I take this opportunity to call on members of civil society organizations in Canada and Caribbean Commonwealth countries’ State representatives to engage with and make use of all of the mechanisms the Commission has at its disposal, both to denounce human rights violations and also to highlight accomplishments and good practices. I would like to highlight recent opportunities of engagement with English-speaking countries. First, a Period of Sessions was held in Kingston, Jamaica, in May 2019. The Commission heard matters from all OAS Member States, save for Jamaica since the Commission does not deal with matters related to the host country.

Second, the United States recently halted the execution of Russel Bucklew as a result of both domestic and inter-American pressure. Indeed, the Commission granted precautionary measures to Mr. Bucklew and published an admissibility report that found that the lethal injection protocol in Missouri created an intolerable risk of excruciating pain in the case of this specific victim. Mr. Bucklew suffers from a serious congenital medical condition that would prevent the drug from circulating properly, meaning that he would, in all probability, suffer a very slow and painful death.

Third, many press releases were published denouncing the United States policy of separating children from their families at the southern border and violence against female migrants and migrants’ access to justice, among other issues. From 17th to 23rd August 2019, the Commission conducted an on-site visit of the border wall. Commissioners engaged with men, women and child migrants; asylum seekers; and applicants for refugee status from South and Central America, the Caribbean, Africa, Asia and Europe who were being held in detention centres along the border after being detained trying to cross the border and those detained by ICE in the US and awaiting deportation. The Rapporteurs for Migrants’ Rights and Children’s Rights, myself as Rapporteur on Women’s Rights and the Rapporteur on Afro-Descendants Rights, and other Secretariat officers met with the ICE officials in charge of border control and detention centres. We also met with both civil society organizations working with migrants and lawyers who represent the various types of detainees as best as they can. We attended hearings at immigration courts at the sites we visited and inspected in San Diego, California, and Laredo, Texas, and walked along a good portion of the metal fence that is the border wall. As Rapporteur on Women’s Rights, I was particularly interested in the many allegations of violations women migrants suffer.

Nearly all Latin American States are bound by the American Convention on Human Rights (“Convention” or “American Convention”)[3] and have accepted the jurisdiction of the Inter-American Court of Human Rights (the “Court”), but less than half of the independent English-speaking Caribbean common law countries have ratified the Convention. Only Barbados has accepted the jurisdiction of the Court. Trinidad and Tobago ratified the Convention and recognized the jurisdiction of the Court, but then withdrew from both. This means that the majority of these States are only subject to the Commission’s jurisdiction in enforcing the American Declaration of the Rights and Duties of Man (“American Declaration”)[4] and making recommendations to the States in relation to any violations found against them pursuant to denunciations made by individuals or civil society groups on their behalf. This significantly hinders the Commission’s ability to undertake its full functions across the hemisphere since, for a significant number of States, including Canada and the US, cases cannot be submitted to the Court’s jurisdiction.

The Commission is looking for a determined English-speaking common law State to change this unfortunate situation. We are sure that, through its ratification of the Convention, Canada’s leadership in this matter would encourage by example and would lead English Caribbean OAS member States and possibly the United States to ratify the Convention, thereby contributing to a broader human rights consensus in the Americas[5].

II. Canada’s Historical Involvement with the OAS and the IACHR

A. Political Role

After years as an observer State, Canada finally adhered to the Charter of the Organisation of American States[6] and became a full member of the organization in 1990. This subjected Canada to the human rights principles and standards included in the Inter-American Declaration and allowed the Commission to exercise monitoring functions over Canada, including the drafting of thematic reports, which include recommendations to the State; processing individual petitions alleging that the State breached its human rights obligations; publishing admissibility and merits reports; and formulating specific recommendations the State should implement.

Canada has not ratified the American Convention; it is therefore only subject to the American Declaration, and cannot be subjected to the Court’s jurisdiction. Even so, since 1990, it is well known that Canada has been a staunch supporter of democratization in the Americas, having actively participated in the adoption of the Inter-American Democratic Charter. Canada has also provided important political support to key OAS organs in negotiating and adopting resolutions on essential human rights issues, in particular on gender and women’s human rights issues and on LGBTI issues.

B. Financial Role

Over the years, Canada has been an indispensable source of funding for the Commission, the importance of which cannot be downplayed. The Commission’s financial health is entirely dependent on State contributions to the OAS, but these have never been sufficient to allow the Commission to fulfil its role monitoring the human rights situation in the region. As a result, the Commission has had to depend on voluntary contributions from various States inside and outside of the region. In 2016, the Commission went through the worst financial crisis of its existence, one that threatened to paralyze it, and it was forced it to announce the cancellation of two Periods of Sessions, various country visits, some monitoring functions, and the possible termination of 40 % of its workforce if it did not receive the necessary financial support. It had to go on a fundraising drive and fortunately succeeded in raising sufficient funds to retain its total workforce, which had been the primary focus.

Canada has been a steady contributor to the OAS and the IACHR through voluntary contributions, supporting work in some key areas it is concerned about, such as a current project supporting women and children’s rights to live a life free of violence.

C. The IACHR and Canada

It is true that there have been very few petitions lodged against Canada before the Commission, but it has published some important admissibility reports, including the Hul’qumi’num Treaty Group case (2011)[7] and the Loni Edmonds case (2013)[8]. It also has published important merits reports on asylum matters, as in the cases of Suresh (2016)[9] and John Doe (2011)[10].

While some may say that this low number of petitions is likely related to Canada’s Charter of Rights and Freedoms and the efficiency of its own judicial system (remember that to access the IACHR, one must exhaust domestic remedies), many commentators have argued that this is also in part due to the fact that most members of Canadian civil society organizations and its legal community are unaware of the existence of IASHR and of the Commission’s various mechanisms. The Commission’s work related to Canada clearly demonstrates that the country is not devoid of human rights violations and could benefit from the support and monitoring the IACHR offers. Despite the fact that Canada has not ratified the American Convention, the Commission has exercised its human rights monitoring work in some key areas of concern, for example:

1. Asylum seekers and Migrants’ Rights

The Commission’s 1997 on-site visit to enquire into the human rights situation of refugees led to the 2000 publication of an important thematic Report on The Situation of the Human Rights of Asylum Seekers within the Canadian Refugee Determination System.[11]

2. Missing and Murdered Indigenous Women

In 2012, the Commission undertook an on-site visit to British Columbia that resulted in the publication of Missing and Murdered Indigenous Women in British Columbia, Canada in 2014[12]. Among many other things, the report recommended establishing and engaging in a national inquiry on the matter. In subsequent years, the Commission followed up on implementation via requests for information and thematic hearings. This allowed it to keep pressure on the Canadian government, and to keep international attention on the matter.

When the National Inquiry into Missing and Murdered Indigenous Women and Girls was finally announced, the Commission followed up with biannual thematic hearings on the negotiations underway to determine the terms of the National Inquiry’s mandate and, later, on the implementation of its recommendations. The commission recently published a press release calling on the Canadian government to implement the recommendations contained in the National Inquiry’s Final Report[13].

3. Forced Sterilization

The Commission has also been following up on allegations of forced sterilization of Indigenous women in Canada, and has recently published a press release regarding this issue[14].

4. Role of Canadian industries operating abroad

In some reports, the Commission only addresses Canada indirectly, as it did in Indigenous Peoples, Afro-Descendent Communities and Natural Resources: Human Rights Protection in the Context of Extraction, Exploitation, and Development Activities[15]. In this report, the Commission looked for the first time at States’, including Canada’s, possible extraterritorial responsibility for human rights violations committed by non-State third party actors, such as mining companies, especially when the State supported these companies through financing and economic diplomacy. The Commission has also congratulated Canada for measures it has taken to further its human rights obligations and good practices. In 2018, the Commission welcomed the elimination of the use of solitary confinement for people with mental disabilities in detention centers in the province of Ontario[16].

In 2018, the Commission welcomed the Canadian government’s announcement of the creation of a Canadian Ombudsperson for Responsible Enterprise to address complaints related to allegations of human rights abuses committed in the context of a Canadian company’s operations abroad, as well as the establishment of a Multi-Stakeholder Advisory Board on Responsible Business Conduct[17]. The Commission recognized that this initiative was the first of its kind worldwide and, if correctly implemented, could become a model of good practice to be reproduced in other States in the region. Also in 2017, the Commission congratulated the Government of Canada on its recent announcement of a national housing strategy “to progressively implement the right of every Canadian to access adequate housing”[18].

III. Relevance of the Inter-American System for Canada

A. The Importance of Ratification

For nearly three decades, Canada has refused and/or neglected to ratify the American Convention. It has done so on the basis of various preoccupations with the interpretation of certain rights in some inter-American instruments. The protection of women’s sexual and reproductive rights, in particular the right to terminate a pregnancy, is a central concern of the Canadian State. Unlike in Canada, Section 4 provides for the protection of the right to life “as of conception”[19]. While Latin American states have a conservative interpretation of the right to life and are frequently opposed to abortion, for the past 30 years, the Commission has consistently issued statements calling on States to adopt immediate measures to ensure that women can fully exercise all their sexual and reproductive rights.

The Commission has publicly opposed laws criminalizing abortion in all circumstances, affirming that they have a negative impact on women’s dignity, their own right to life, personal integrity, and health, as well as on their general right to live free from violence and discrimination. The Commission stated that the absolute criminalization of abortion, including in cases where the woman’s life is at risk and when the pregnancy results from rape or incest, imposes a disproportionate burden on the exercise of women’s rights and creates a context which facilitates unsafe abortions and high rates of maternal mortality. Thus, it has issued precautionary measures requesting States to provide abortions for young girls who had been the victims of sexual abuse (e.g., Mainumby)[20].

In its landmark decision in Artavia Murillo et al (“In vitro fertilization”) v Costa Rica, the Inter-American Court also found that an embryo did not have legal personhood and should not be protected by the right to life, and that the embryo's life does not have priority over that of the mother[21]. The Court insisted strongly on a woman’s right to privacy to justify their decision in prioritizing the rights of the mother (who wished to have a child through in vitro fertilization) over the rights of the embryo. The ruling also affirmed that, “Regarding the dispute as to when human life begins,” a question that has been assessed from a biological, medical, ethical, moral, philosophical, and religious perspectives, the court concurs with domestic and international courts that there is “no agreed definition of the beginning of life”[22].

Although no case has yet been specifically brought before either the Commission or the Court regarding abortion and absolute abortion bans (though there one such case is currently going through the procedural stages in the Commission), the Commission and Court’s consistent interpretations have tended towards the protection of women’s right to sexual and reproductive rights, which should assuage Canada’s preoccupation.

In fact, it would be particularly relevant for Canada to ratify the American Convention when such a case has made its way to the Court or as soon as an attempt is made to amend Article 4 of the American Convention by a General Assembly resolution (though some consider this a risky undertaking). Canada’s ratification would establish the country’s leadership role and ensure strong opposition to attempts to criminalize abortion that hide behind a cloak of legitimacy.

In any event, Canada could always ratify the Convention with a reservation regarding its interpretation of the right to life, and so would not risk a ruling made that it acted in violation of Article 4. However, this could only happen if Canada softens its firm position against reservations, which has prevented it from ratification in the past, or until a change occurs with this specific article. If Canada ratifies the Convention, its citizens would no longer be deprived of the benefits of the protective standards in other articles.

Nonetheless, as the 2003 report of the Standing Senate Committee on Human Rights, which was studying the matter, concluded, there are in fact “no compelling reasons for Canada not to ratify the Convention”[23]. Though the Standing Committee did recognize that there were legitimate concerns with ratification, they concluded that all of these could be assuaged through various solutions, saying “none of these constitute insurmountable obstacles”[24]. In fact, the report concluded that “support for Canadian ratification of the Convention, with at least one reservation and some statements of understanding, has been unanimous”[25]. This conclusion was reaffirmed in 2005 when the Standing Senate Committee on Human Rights recommended ratification by 2008. It is now 2019 and obviously long overdue.

B. Legitimacy and Increased Participation

On another note, Canada’s ratification of the Convention would increase its legitimacy and credibility when it calls on other States to respect human rights, thereby increasing its leadership position in the hemisphere. Indeed, there is a certain amount of irony in Canada’s promotion of and financial provision for the rights of women and girls in the hemisphere, when juxtaposed with its refusal to ratify the American and Belem do Para Conventions. The Belem do Para Convention is the most important convention on women’s rights in the hemisphere[26]. Clearly, compliance with these basic documents and the IASHR’s decisions pursuant to them would certainly be one of the most effective tools Canada can use to strengthen the system and Canada’s own legitimacy as a State committed to them.

This would strengthen its political influence and leadership on human rights matters in the Americas. This is especially true now as some countries that once held strong leadership positions are reducing involvement. There are, as well, grave pushbacks and steps backward from previously held legal positions. It would then be possible to nominate some of Canada’s renowned scholars to sit on the Commission and Court as commissioners and judges and actively assist from within, working toward the continuous development of our Inter-American human rights principles and standards.

C. Relevance for Victims of Human Rights Violations

The Commission and Court have developed a creative and solid jurisprudence regarding many human rights issues, which would be beneficial if they were to become legally applicable to Canada as a State party to these instruments. For instance, the interpretation of section 21 of the American Convention in Awas Tingni[27] to include the protection of private and collective property was groundbreaking, as were the time limits the Court imposed on appropriately demarcating and titling indigenous lands and territories (Povo Xucuru)[28]. This case law could certainly benefit Indigenous communities within Canada.

Canada has, since 1990, participated in the elaborations of many specific Treaties and Conventions in the OAS Human Rights System. This includes the Belem do Para Convention, the ratification of which would allow the State to better protect all women in Canada and would provide a road map for Canada to deal effectively with the issue of violence and discrimination against women in general, and Indigenous women in particular.

IV. Relevance of Canada’s Involvement for the Inter-American System

A. Current Context Human Rights Setbacks in the Region

Today, strong public and political support for IASHR institutions has never been so crucial. We are facing significant setbacks in terms of human rights globally and hemispherically. The rise of conservative populism has attacked the IASHR’s fundamental values of human rights and dignity for all at its core, making it more important than ever to work harder, and together, to continue promoting and defending human rights in the region.

The Commission has made strong recommendations regarding some OAS member States’ respect for human rights, and the Court has found that other States have violated the American Convention. These States have directly or indirectly attacked IASHR institutions. Canada and other OAS member States have taken a strong stance in support of the Commission and the Court to minimize the impact of such attacks.

B. Diversification of the Human Rights System’s Caselaw

If Canada were to ratify the Convention, more Canadian cases would probably be brought before the Inter-American Human Rights System, which would certainly enrich the system’s jurisprudence since it would allow the system’s human rights institutions to delve into issues which it has not hitherto considered. This would enrich the current and, it must be said, repetitive jurisprudence it now has related mostly to impunity in general, and specifically to violations to the right to life and personal integrity and dysfunctional judicial systems, to mention a few.

C. Canada’s Leadership

Canada is an example of legal pluralism and rests on foundations both of French civil law and English common law. This is of high value and relevance for the Commission’s jurisprudence, as it has and does still struggle with the realities of both common and civil law countries. Canada could provide the IASHR with judicial expertise and leadership in dealing with dual legal systems. In addition to having a dual legal system, Canada is a bilingual country and shares the French language with Haiti. This would greatly support the mandate of the IACHR and allow Canada to have a unique position of leader and unifier for English-speaking Caribbean countries and for Haiti.

***

I hope that Canada will, after its upcoming elections, proceed with the longrecommended ratification of the Inter-American Convention on Human Rights. Ratification would ensure the effective protection of the rights of all citizens by providing them with access to justice for violations of their conventional human rights. Canada should also ratify the Belen do Para Convention, which would greatly contribute to Canada’s own work plan in addressing the findings of the National Inquiry into Missing and Murdered Indigenous Women and Girls and implementing the Inquiry’s recommendations to rectify the situation for all Indigenous women and girls and provide effective protection of their right to life and to live lives free of violence and discrimination, at the very least.

One last thing, it is apposite and would also be helpful for Canada to ratify our latest Conventions, adopted in 2013. These are, the Inter-American Convention Against Racism, Racial Discrimination and Related Forms of Intolerance[29] and the InterAmerican Convention Against All Forms of Discrimination and Intolerance[30].

Below is a list of Inter-American Instruments ratified by Canada from 1991 to October 2019: the Inter-American Convention on the Granting of Political Rights to Women[31], adopted by the OAS in 1948 and ratified by Canada in 1991; the InterAmerican Convention on the Granting of Civil Rights to Women[32], adopted by the OAS in 1948 and ratified by Canada in 1991; the Agreement Establishing the InterAmerican Institute for Global Change Research[33], accepted by Canada in 1993; the InterAmerican Convention on Serving Criminal Sentences Abroad[34], adopted by the OAS in 1993 and ratified by Canada in 1995; the Inter-American Convention on Mutual Assistance in Criminal Matters[35], adopted by the OAS in 1992 and ratified by Canada in 1996; and the Inter-American Convention Against Corruption[36], adopted by the OAS in 1996 and ratified by Canada in 2000.