Safe Injection Sites - International

INTERNATIONAL LAW AND THE RIGHT TO THE HIGHEST ATTAINABLE STANDARD OF HEALTH CARE:

Using Safe Injection Facilities to Control and Prevent Epidemics

by PERRY BULWER, B.A., LL.B.

From 1999 to 2002 I was a law student at the University of British Columbia in Vancouver, Canada. I was also involved with various community-based advocacy groups supporting the rights of drug addicts and sex-trade workers. The paper that follows this intro and news updates, was written in April, 2002 for one of my courses as a response to government inaction in the face of a publicly declared health crisis. It was subsequently published on the website of Pivot Legal, which at the time was a new legal advocacy organization serving Vancouver's most marginalized citizens. Pivot and its lawyers have since received several awards for outstanding community service. 

This paper, and the two related papers on this website, as well as similar research were used by Pivot activists in the fight to force the government to act. In September 2003 North America's first legal supervised injection site, INSITE, began operating in Vancouver as a scientific pilot research project. The scientific evidence to date shows that such a facility saves lives by preventing overdose deaths and the spread of communicable diseases. However, the Conservative government under Stephen Harper has questioned the effectiveness of the service and has threatened to withdraw funding. In April 2008 the operaters of INSITE launched a constitutional case to test the federal government's power to close the facility. In May 2008, a letter leaked to the CBC revealed that doctors at the University of British Columbia's Department of Medicine last year unanimously urged Prime Minister Stephen Harper to keep INSITE open. 

On May 27, 2008 the B.C. Supreme Court struck down as unconstitutional sections of the Controlled Drugs and Substances Act. It gave Ottawa until June 30, 2009 to fix the law and bring it inline with the constitutional principle of fundamental justice. The court also granted INSITE an immediate exemption, allowing it to remain open. Ottawa must now update its laws to ensure provinces are free to provide health care services to addicts. 

Government opposition to effective harm reduction measures is nothing new, as this article explores. On October 8, 2008 Pivot filed a complaint with the federal auditor general alleging that the RCMP secretly commissioned research in hopes of discrediting INSITE. Consequently, the RCMP announced an internal review of Pivot's allegations. This article, Vancouver's Radical Approach to Drugs, provides an updated overview of Vancouver's harm reduction approach to illicit drug use. And here is a transcript of a radio interview with Dr. Gabor Maté, a physician at INSITE, on the biological and socio-economic roots of addiction.

See related legal arguments in the following two articles on this blog:

SAFE INJECTION FACILITIES: COMPELLING GOVERNMENT TO ACT 

http://perry-bulwer.blogspot.ca/p/safe-injection-sites-bc.html

The Constitutional Obligation of the City of Vancouver to Support Safe Injection Facilities

http://perry-bulwer.blogspot.com/p/safe-injection-sites-vancouver.html  

FOR RELATED, ONGOING, UP-DATED MEDIA REPORTS ON THIS ISSUE SEE THE COMMENTS SECTION AFTER THE ARTICLE AT:  http://perry-bulwer.blogspot.ca/p/safe-injection-sites-bc.html

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INTERNATIONAL LAW AND THE RIGHT TO THE HIGHEST ATTAINABLE STANDARD OF HEALTH CARE:

Using Safe Injection Facilities to Control and Prevent Epidemics

by PERRY BULWER, B.A., LL.B.

INTRODUCTION

In 1997, the National Task Force on HIV, AIDS and Injection Drug Use declared that “Canada is in the midst of a public health crisis concerning HIV, AIDS and injection drug use… . The number of new HIV infections among injection drug users is increasing rapidly, with Vancouver now having the highest reported rate in North America.”¹ That same year the Vancouver/Richmond Health Board declared a public health emergency in response to the emergence of an HIV/AIDS epidemic, as well as the high rate of fatal drug overdoses among intravenous drug users.² From 1996 to 2000, there was an annual average of 312 overdose deaths in the Vancouver region.³ Hepatitis A, B, & C, tuberculosis and syphilis also occur at epidemic rates among Vancouver’s intravenous drug user population.⁴ On 11 April 2002 the Canadian HIV/AIDS Legal Network issued a new report entitled Establishing Safe Injection Facilities in Canada: Legal and Ethical Issues. In a press release announcing that report the Network stated:

Canada is in the midst of a public health crisis concerning HIV/AIDS, hepatitis C, and injection drug use. The response to this crisis has been far from concerted and effective. … the Canadian HIV/AIDS Legal Network concludes that Canada has a legal and moral obligation to allow for and fund trials of safe injection facilities as part of an overall strategy to more effectively respond to harms related to drug use.⁵ 

Elsewhere, I have argued that the provincial government has a legal obligation, under human rights legislation and sections 7 & 15 of the Charter, to establish and fund safe injection facilities for intravenous drug users as part of a comprehensive program to prevent and control epidemics of disease and death related to intravenous drug use.⁶ In this paper I support that position by turning to International Human Rights Law. In particular, the International Covenant on Economic, Social and Cultural Rights (ICESCR), ratified by Canada, states in Article 12:

1. The State Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

2. The steps to be taken by the State Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

…(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;⁷

I begin with a brief overview of international law and then focus on the reception of international law in Canadian domestic law. I then consider numerous provisions related to health care, as well as discrimination, in various international instruments such as the Universal Declaration of Human Rights(UDHR), the Declaration on the Rights of Disabled Persons, the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Social, Economic and Cultural Rights (ICESCR). Though the effect of an international treaty that is not expressly implemented through domestic legislation is not entirely settled in Canadian law, there is no doubt that the International Bill of Rights, comprised of the above instruments as well as many others, imposes positive obligations on Canada. I conclude that those obligations support an interpretation of the Charter and other human rights legislation that imposes a legal duty to provide the necessary health care, in the form of safe injection facilities, to prevent, treat and control the epidemic of disease and death associated with intravenous drug addiction.

INTERACTION BETWEEN INTERNATIONAL AND DOMESTIC LEGAL SYSTEMS

There are two main theoretical models that describe the interaction between international and domestic legal systems. Dualism suggests that the two systems operate in different spheres and neither essentially influences the other. Monism, on the other hand, argues that there is no dichotomy between the two and they are part of one continuous legal system.⁸ Canada’s constitution contains no provisions describing the relationship between international and domestic law. Instead, the courts have attempted to elaborate the rules governing the reception of international law. Those rules follow two models, adoption and transformation, somewhat analogous to monism and dualism, depending on what international legal rule is being considered.

In the case of international customary law,⁹ the adoption model is followed wherein it is generally assumed that such laws form part of the common law of Canada and have direct domestic legal effect. The leading case in support of this proposition is the Foreign Legations Reference.¹⁰ Although there was a mix of ambiguous opinions in that case, the predominant view preferred the adoptionist approach to the reception of international customary law, as expressed by Chief Justice Duff.¹¹ Since that time many cases have endorsed that position and implicitly accepted the adoption of international customary law.¹²However, for an international customary law to be deemed part of the common law of Canada it must not conflict with statutory law or binding rules of precedent. Nevertheless, courts must interpret existing statutes and common law, to the extent possible, in accordance with international customary law.¹³

The Canadian legal system takes a contrasting approach to international treaty law and applies the transformation model wherein the general rule is that provisions of international treaties have no direct legal effect in Canada until they have been transformed, i.e., implemented through legislation.¹⁴ The reason for this approach is the unique history of Anglo-Canadian constitutional law. In Canada, the executive branch of government has the exclusive power to negotiate and ratify treaties. No legislative concurrence is needed. However, the executive branch has no corresponding power to enact or change domestic law, which falls to the law-making branches of government. This separation of powers means there is no constitutional or domestic legal obligation on law-makers to transform or implement a treaty into Canadian law.¹⁵ There are, however, certain international legal obligations Canada is bound to when ratifying treaties and may be in breach of if not implemented domestically.

DOMESTIC APPLICATION OF INTERNATIONAL TREATIES

One of the most basic principles of international law is the doctrine of pacta sunt servanda. It is so essential that it is considered a rule of jus cogens, or a customary rule from which no derogation is permissible.¹⁶ In the context of treaties it means that when a state consents, by ratification or otherwise, to be bound by a treaty and the treaty comes into force, that state is bound by the treaty and must perform it in good faith. The Vienna Convention on the Law of Treaties codifies this principle in Article 26:

Pacta Sunt Servanda

Every treaty in force is binding upon the parties to it and must be performed by them in good faith.¹⁷ 

To perform a treaty in good faith essentially means to give domestic legal effect to the treaty so that a state is able to perform the obligations that it assumed under the treaty. Furthermore, having consented to a treaty a state is not then able to claim that domestic legal impediments prevent it from implementing or performing the treaty. Article 27 of the Vienna Convention codifies this necessary corollary to the pacta sunt servanda doctrine:

International Law and Observance of Treaties

A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to Article 46.¹⁸ 

This does not mean that a state must violate its domestic law in order to fulfill any conflicting treaty obligations, for international law rarely dictates such action. What it does mean is that if a state chooses to respect a domestic law over a treaty provision it will be in breach of its binding treaty obligations. The consequences of such a breach depend, on large part, on the particular treaty. In some cases breaching treaty obligations may give rise to an international claim for reparations by other parties to the treaty. In the case of a treaty such as the ICESCR, which is concerned with individual rights as opposed to relations between states, and which has no enforcement mechanism, the consequences of a breach are less certain. At the very least, pointing to Canada’s failure to fulfill its obligations under the ICESCR has political value and moral force, but there also may be domestic legal consequences of such a failure. However, before discussing that issue below, a couple more points should be made concerning the domestic applicability of international treaties.

First of all, most treaties, and especially human rights covenants, extend to all parts of federal states, thus binding the provinces as much as the federal government of Canada. Article 29 of the Vienna Convention states:

Territorial Scope of Treaties

Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.¹⁹ 

Specific human rights covenants contain provisions addressing this point. For example, Article 50 of the ICCPR²⁰ and Article 28²¹ of the ICESCR both state:

The provisions of the present Covenant shall extend to all parts of federal states without any limitations or exceptions.

Further support for the principle that obligations under the various human rights treaties are binding on both provincial and federal governments comes from statements made by Canada’s representative to the UN Committee on Economic, Social and Cultural Rights (the Committee). Part IV of the ICESCR provides for a monitoring system to ensure that state parties are fulfilling their obligations under the covenant. Articles 16 and 17 require states to submit periodic reports. The Committee reviews those reports and conducts question and answer sessions with state representatives. At one of those sessions, held on 10 February 1989, Canada’s representative, Mr. de Montigny Marchand, had the following to say about federal/provincial obligations under the ICESCR:

2. Responsibility for human rights was shared between the different levels of government. It was for the Federal Government to ratify international treaties, whereas they were implemented with the active participation of the provincial and territorial governments. That was why, before acceding to the International Covenants on Human Rights, the Federal Government had obtained a pledge from the provincial and territorial governments that they would adopt the necessary measures to implement the Covenants in the areas of their competence. Under an agreement concluded between the Federal Government and the provincial governments in 1975, each government took part in drawing up the reports required under the Covenants. The provincial and territorial governments had direct responsibility for implementing many provisions of the Covenant and they had to report on the measures they adopted. Their reports were an integral part of the Canadian report. That approach encouraged well-balanced reporting.

3. Ministers from each government met regularly for consultations on the implementation of international agreements. The ministers were assisted in that task by a standing committee of officials. Each government had designated officials with responsibility for co-ordinating the implementation of treaties and preparing the relevant reports. Experience had shown that that system, which had been in operation for some 12 years, had encouraged the adoption of the measures necessary for full implementation of the treaties to which Canada was a party.²²

Furthermore, in 1981 the Special Joint Committee of the Senate and the House of Commons considered an amendment to what is now s.36 of the Constitution Act,1982 to add a “commitment to fully implementing the ICESCR.” All parties agreed that Canada had already committed itself to fully implementing the Covenant by ratifying it in 1976. MP James McGrath noted that no one was “opposed to the principles embodied in the amendment”, but he was against “cluttering up” the section by trying to put “everything” in.²³ Then Minister of Justice Jean Chretian reiterated that Canada was already committed to implementing the ICESCR and that “we cannot put everything [in s.36]”. Clearly, both the federal and provincial governments recognize their obligation to adopt the necessary measures to implement the Covenants in the areas of their competence. In the case of local epidemics of disease, the provincial government certainly is required to take the necessary steps to achieve the rights articulated in Article 12 of the ICESCR.²⁴

Provisions in human rights treaties also speak to the issues of their domestic applicability, state obligations and the duty to give effect to the covenants in the domestic legal order. For example, Article 2(1) of the ICESCR states:

Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.²⁵ 

From time to time the Committee on Economic, Social and Cultural Rights publishes general comments on substantive issues arising in the implementation of the ICESCR. In its General Comment No. 9, on the domestic application of the Covenant, it elaborated on the nature of States parties obligations as outlined in Article 2(1) above:

1. The central obligation in relation to the Covenant is for States parties to give effect to the rights recognized therein. By requiring Governments to do so “by all appropriate means”, the Covenant adopts a broad and flexible approach which enables the particularities of the legal and administrative systems of each State, as well as other considerations, to be taken into account.

2. But this flexibility coexists with the obligation upon each State party to use all means at its disposal to give effect to the rights recognized in the Covenant. In this respect, the fundamental requirements of international human rights law must be borne in mind.²⁶ Thus, the Covenant norms must be recognized in appropriate ways within the domestic legal order, appropriate means of redress, or remedies, must be available to any aggrieved individual or group, and appropriate means of ensuring governmental accountability must be put in place.

5. Although the precise method by which Covenant rights are given effect in national law is a matter for each State party to decide, the means used should be appropriate in the sense of providing results which are consistent with the full discharge of its obligations by the State party.²⁷ 

In General Comment No. 3 the Committee further clarifies the nature of State obligations under the Covenant:

2. …the undertaking in Article 2(1) “to take steps” … is not qualified or limited by other considerations. The full meaning of the phrase can also be gauged by noting some of the different language versions. In English the undertaking is “to take steps”, in French it is “to act” (“s’engage … agir”) and in Spanish it is “to adopt measures” (“a adopter medidas”). Thus while the full realization of the relevant rights may be achieved progressively, steps towards that goal must be taken within a reasonably short time after the Covenant’s entry into force for the States concerned. Such steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant.

3. The means which should be used in order to satisfy the obligation to take steps are stated in Article 2(1) to be “all appropriate means, including particularly the adoption of legislative measures”.

4. …however, the adoption of legislative measures, as specifically foreseen by the Covenant, is by no means exhaustive of the obligations of States parties. Rather, the phrase “by all appropriate means” must be given its full and natural meaning.

5. Among the measures which might be considered appropriate, in addition to legislation, is the provision of judicial remedies with respect to rights which may, in accordance with the national legal system, be considered justiciable. The Committee notes, for example, that the enjoyment of the rights recognized, without discrimination, will often be appropriately promoted, in part, through the provision of judicial or other effective remedies.

7 Other measures which may also be considered “appropriate” for the purposes of Article 2(1) include, but are not limited to, administrative, financial, educational and social measures.

9. The principal obligation of result reflected in Article 2(1) is to take steps “with a view to achieving progressively the full realization of the rights recognized” in the Covenant. …the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content. …the phrase must be read in the light of the overall objective, indeed the raison d’etre of the Covenant, which is to establish clear obligations for States parties in respect of the full realization of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal. Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.

10. …the Committee is of the view that a minimum core obligation to ensure the satisfaction of , at the very least, minimum essential levels of each of the rights, is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant.

12. Similarly, the Committee underlines the fact that even in times of severe resources constraints, whether caused by a process of adjustment, of economic recession, or by other factors, the vulnerable members of a society can and indeed must be protected by the adoption of relatively low-cost targeted programmes.²⁸ 

It is clear from the discussion so far that the ICESCR applies to the entire Canadian federation and that the provinces are responsible to adopt the necessary measures to implement those Covenant provisions that fall in their areas of competence. To fulfill the right in Article 12 to the “highest attainable standard of physical and mental health” the British Columbia government in particular has an obligation to take “deliberate, concrete and targeted” steps to prevent, treat and control the epidemics occurring among Vancouver’s intravenous drug users, some of the most vulnerable members of society. This international legal obligation mirrors the domestic legal obligation found in human rights legislation and in sections 7 and 15 of the Charter.

JUDICIAL CONSIDERATION OF INTERNATIONAL TREATY LAW

While it is helpful to understand the theoretical basis of the reception of international treaty law in the Canadian domestic legal system, the true significance of the transformation approach can only be ascertained by examining how the courts have applied it. Speaking of the ICESCR, one writer commented:

… the formal domestic status of the Covenant is not of decisive importance for its effective implementation; what really matters is the attitude of the judiciary towards the Convention and their opinion about the division of powers between the legislature and the judiciary.²⁹ 

Traditionally, Canadian courts rigidly applied the transformationist approach and refused to give any legal effect to unimplemented treaties. In Francis v. The Queen the Chief Justice found that the 1794 Treaty of Amity, Commerce and Navigation had not been implemented by legislation and held that:

…in Canada such rights and privileges as are here advanced of subjects of a contracting party to a treaty are enforceable by the Courts only where the treaty has been implemented or sanctioned by legislation.³⁰ 

The Supreme Court of Canada ruled similarly in their 1978 decision in Capital Cities Communications, which dealt with a conflict between a Canadian Radio-Television Commission decision and the Inter-American Radio Communication Convention. The majority held:

There would be no domestic, internal consequences unless they arose from implementing legislation giving the Convention a legal effect within Canada.³¹ 

However, the minority referred to that position as “an oversimplification”.³² Pigeon J. argued that broadcasters were entitled to the protection of certain legal interests by virtue of the Convention and that the CRTC could not authorize Canadian providers in a way that violated Canada’s treaty obligations.³³That minority judgement signaled the beginning of an increasingly flexible attitude on the part of the Court towards treaties.

In the situation where there is Canadian legislation implementing a treaty, the Supreme Court “…appears to have adopted the view that, regardless of the mechanism of implementation,³⁴ implementing legislation is, where possible, to be reconciled with the corresponding treaty obligation.”³⁵ This approach allows a treaty to have at least an indirect domestic effect, and favours the primacy of treaty law over domestic law, thus moving the Court further from the rigid application of transformation. Furthermore, inPushpanatham, the Court affirmed that as a general rule courts will be required to interpret implementing legislation so as to conform not only with treaty terms, but with treaty obligations. The case involved a provision of the Convention Relating to the Status of Refugees being implemented by way of incorporation by reference in the Immigration Act. The terms of the provision were thus enacted in a Canadian statute. Again the Court favoured the primacy of treaty law when the majority held:

Since the purpose of the Act incorporating Article 1F(c) is to implement the underlying Convention, the Court must adopt an interpretation consistent with Canada’s obligations under the Convention. The wording of the Convention and the rules of treaty interpretation will therefore be applied to determine the meaning of Article 1F(c) in domestic law….³⁶ 

Thus, at least in the case of domestic legislation implementing a treaty, international treaty rules encroach on domestic law. Recent judicial pronouncements, however, suggest that “… the domestic legal effects of treaties may not be limited to those that have been implemented by legislation after all.”³⁷

The move towards that position is apparent in some judgements written by then Chief Justice Dickson that hold that in the context of interpreting the Charter, it is appropriate for courts to consider Canada’s obligations under international human rights treaties. In Reference Re Public Service Employees Relations Act(Alta), his dissenting judgement defined the proper weight to be given international human rights instruments:

A body of treaties (or conventions) and customary norms now constitutes an international law of human rights under which the nations of the world have undertaken to adhere to the standards and principles necessary for ensuring freedom, dignity and social justice for their citizens. The Charter conforms to the spirit of this contemporary international human rights movement, and it incorporates many of the policies and prescriptions of the various international documents pertaining to human rights. The various sources of international human rights law—declarations, covenants, conventions, judicial and quasi-judicial decisions of international tribunals, customary norms—must, in my opinion, be relevant and persuasive sources for interpretation of the Charter’s provisions.

In particular, the similarity between the policies and provisions of the Charter and those of international human rights documents attaches considerable relevance to interpretations of those documents by adjudicative bodies, in much the same way that decisions of the United States courts under the Bill of Rights, or decisions of the courts of other jurisdictions are relevant and may be persuasive. The relevance of these documents in Charter interpretation extends beyond the standards developed by adjudicative bodies under the documents to the documents themselves. As the Canadian judiciary approaches the often general and open textured language of the Charter, “the more detailed textual provisions of the treaties may aid in supplying content to such imprecise concepts as the right to life, freedom of association, and even the right to counsel”. J. Claydon, “International Human Rights Law and the Interpretation of the Canadian Charter of Rights and Freedoms” (1982), 4 Supreme Court L.R. 287 at 293.

Furthermore, Canada is a party to a number of international human rights Conventions which contain provisions similar or identical to those in the Charter. Canada has thus obliged itself internationally to ensure within its borders the protection of certain fundamental rights and freedoms which are also contained in the Charter. The general principles of constitutional interpretation require that these international obligations be a relevant and persuasive factor in Charter interpretation. As this Court stated in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at 344, interpretation of the Charter must be “aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection”. The content of Canada’s international human rights obligations is, in my view, an important indicia of the meaning of “the full benefit of the Charter’s protection”. I believe that the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.

In short, though I do not believe the judiciary is bound by the norms of international law in interpreting the Charter, these norms provide a relevant and persuasive source for interpretation of the provisions of the Charter, especially when they arise out of Canada’s international obligations under human rights conventions.³⁸ 

Consequently, Chief Justice Dickson set the ground rules for judicial treatment of international law inCharter litigation, by citing the above passages in his majority judgement in Slaight and Keegstra. In Slaighthe added:

… Canada’s international human rights obligations should inform not only the interpretation of the content of the rights guaranteed by the Charter but also the interpretation of what can constitute pressing and substantial s.1 objectives which may justify restrictions upon those rights. Furthermore, … the fact that a value has the status of an international human right, either in customary international law or under a treaty to which Canada is a party, should generally be indicative of a high degree of importance attached to that objective.³⁹ 

In Keegstra Dickson C.J. recalled his comments in the Public Service Employee Relations Act Reference and inSlaight and added:

Generally speaking, the international human rights obligations taken on by Canada reflect the values and principles of a free and democratic society, and thus those values and principles that underlie the Charter itself.⁴⁰ 

Interestingly, no mention is made in any of the above passages of the presence or absence of legislation implementing the international human rights treaties to which Dickson refers. Since there is no federal or provincial legislation, including the Charter, that expressly implements the international human rights treaties, Dickson does not believe the judiciary is bound by their norms. However, it could be argued that “the Charter implements by implication the provisions of various human rights treaties to which Canada is a party.”⁴¹ After all, as Chief Justice Dickson alluded to above, much of the inspiration for the provisions in the Charter came directly from Canada’s commitments under the various international human rights documents. Many of the provisions of the Charter contain language that precisely mirrors the language in international human rights instruments. For example, s.7 of the Charter states that, “Everyone has the right to life, liberty and security of the person…”. This echoes Article 3 of the Universal Declaration of Human Rights,⁴² which says exactly the same thing.

There is also a hint of judicial support for the idea that international human rights treaty provisions can be implicitly implemented. In Singh⁴³ Wilson J. approved of Pigeon J.’s⁴⁴ dissent in Ernewein in which he stated:

It will be seen that the provisions of the Convention [Relating to the Status of Refugees] were adopted and became part of the law of Canada by being thus referred to in an Act of Parliament.45 

And in Ewanchuk L’Heureux-Dube J., writing a separate, concurring judgement stated:

Our Charter is the primary vehicle through which international human rights achieve a domestic effect.⁴⁶ 

She notes that the s.15 equality guarantee and s.7 guarantee of security of the person are “particularly important vehicles for incorporating international human rights norms, as these two rights ‘embody the notion of respect of human dignity and integrity’.”⁴⁷

Whether or not the Charter implicitly implements international human rights treaty provisions, judicial ability “to consider international convention law is not impeded by the constitutional rule that unimplemented treaties are not part of the domestic law of Canada and therefore non-binding.”⁴⁸ That judicial ability has rarely been applied, particularly in lower courts, since the Supreme Court articulated inSlaight the significant interpretive impact of international treaty law in determining Charter rights.⁴⁹However, ten years later in Baker, the Supreme Court reaffirms, indeed “bolsters the Slaight Communications doctrine of constitutional reception of Canada’s international human rights obligations.”⁵⁰Writing for the majority, L’Heureux-Dube J. stated:

… the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review. As stated in R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) at 330:

[T]he 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 those values and principles are preferred.

The important role of international human rights as an aid in interpreting domestic law has also been emphasized in other common law countries….⁵¹ It is also a critical influence on the interpretation of the scope of the rights included in the Charter: Slaight; Keegstra.⁵² 

The Baker decision expands the Slaight doctrine in the sense that it deals with an ordinary statute as opposed to the Charter. Ms. Baker applied for permanent residence status on humanitarian and compassionate grounds pursuant to section 114(2) of the Immigration Act, but was denied. On appeal she argued that the ministerial discretion under s.114(2) had been improperly exercised because the best interests of her children had not been considered as a primary factor. The legislation did not require such consideration, but she maintained that due to Canada’s treaty obligations under the Convention on the Rights of the Child⁵³ such a requirement should be read in. Upon review of the provisions of the Convention and other international law sources, L’Heureux-Dube concluded that the best interests of children must be considered under s.114(2) as an important factor.

Although the Convention on the Rights of the Child is not implemented in Canada by legislation or incorporated into the impugned Act, L’Heureux-Dube took judicial notice of the terms of the Convention by incorporating the best interests of the child as a factor to be considered. Essentially, the treaty rule was incorporated, or transformed, into a rule of domestic law that may now be invoked before Canadian courts. One commentator had this to say about the Baker decision:

The Court can be read as having embraced a cosmopolitan conception of the rule of law, one feature of which being that Canadian courts should show fidelity to the international legal order by seeking to harmonize domestic law with international law as much as interpretive space allows. The Court found, by a majority of 5-2, that the presumption of compliance with international law indeed includes to Canada’s legal obligations under unincorporated treaties, i.e., treaties which Canada has ratified but which have not been legislatively transformed into Canadian law by Parliament or the provincial legislatures.⁵⁴ 

The Baker decision moves the Canadian legal system even further from the rigid transformation theory of the reception of international treaty law and closer to the vision espoused by two judges of the Supreme Court of Canada. In 1996, Justice La Forest wrote:

What is happening is that we are absorbing international legal norms affecting the individual through our constitutional pores…. Thus our courts, and many other national courts, are truly becoming international courts in many areas involving the rule of law. They will become more so as they continue to rely on and benefit from one another’s experience. Consequently, it is important that…national judges adopt an international perspective.⁵⁵ 

And in 1997, in a keynote address at York University, then Chief Justice Antonio Lamer affirmed:

[T]he Charter should be, and has been, understood as part of the international human rights movement…. For international human rights law to be effective…it must be supported by what I would term a “human rights culture”, by which I mean a culture in which there is a firm and deep-seated commitment to the importance of human rights in our world. … I turn now to the second aspect of what I have termed the “institutional moment” of international human rights law, the growth of institutional dialogue between international human rights bodies and national courts. Like any true dialogue, this dialogue depends on the willing participation of both parties…. [B]y looking to international treaties and the jurisprudence of international human rights bodies in the interpretation of domestic human rights norms…judges raise the profile of those international treaties and further the creation of a human rights culture.⁵⁶ 

SPECIFIC PROVISIONS IN INTERNATIONAL HUMAN RIGHTS TREATIES CONCERNING HEALTH AND DISCRIMINATION

Having discussed how it is now open for the judiciary to consider Canada’s obligations under unimplemented international human rights treaties in determining its domestic human rights obligations, I now consider specific provisions in various international documents. These provisions support the argument that the government has a legal obligation to provide safe injection facilities for intravenous drug users under the British Columbia Human Rights Code,⁵⁷ the Canadian Human Rights Act,⁵⁸ and sections 7 and 15 of the Charter.⁵⁹ Before doing so, however, it is important to address the fact that the “holistic group of rights found in the UDHR (ranging from Article 3’s classical ‘liberal’ “right to life, liberty and security of the person” to Article 25’s right to a standard of living adequate for…health and well-being) [have been separated] into these two separate treaties, the ICCPR and ICESCR.”⁶⁰ The dissenting judgement of Robert J. in Gosselin⁶¹ addresses this issue, after quoting extensively from several international human rights instruments. He wrote (translation):

Finally, it is worthwhile to note that the inclusion in a treaty open to ratification by States of the right to an adequate standard of living and of the provisions that complete this right reveals the intention of the international community to render enforceable the provisions of this nature already contained in the Universal Declaration. Article 11 of the Covenant [ICESCR] thus repeats the part of section 25(1) of the Declaration that states:

25(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

Adopted without opposition by the Member States of the United Nations, this instrument—of which we recently celebrated the 50th anniversary—is today considered to be “the source of inspiration and … the basis for the United Nations in making advances in standard setting as contained in the existing international human rights instruments…” (Vienna Declaration and Programme of Action).⁶² It thus forms part of customary international law whose rules apply, even in the absence of ratification by States, except in case of direct conflict with existing national law.

Furthermore, the protection conferred upon the right to an adequate standard of living and, more broadly, the social and economic rights contained in the Covenant as a whole, also underlines the international community’s recognition of the principle of the global nature of the human rights system which, as we know, is also founded on the International Covenant on Civil and Political Rights.

Put forth as early as 1948 in the Universal Declaration, the indivisibility and interdependence of civil and political and social, economic and cultural rights are among the fundamental principles of international law relating to human rights. Since then, the indivisibility and interdependence of human rights have been reaffirmed in the Proclamation of Teheran,⁶³ which declares that the complete fulfillment of civil and political rights is impossible without the fulfillment of social, economic and cultural rights, and more recently, in Vienna at the World Conference on Human Rights:

5. All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.⁶⁴ 

Thus, the traditional dichotomy between civil and political rights (called “abstention-rights” or “negative rights”) on one hand, and on the other, economic and social rights (called “rights-of-claim” or “positive rights”) is criticized and, to a certain extent, this criticism appears to me to be well-founded. Formal separation of these rights—which , on an international level, is manifested by their recognition in distinct legal instruments—should not be allowed to obscure their converging points and their interdependency. Consequently, it would be erroneous to conceive of social, economic and cultural rights as “second-class” rights, devoid of any enforceability and incapable of being the object of legal recourse.

This is particularly the case when the violation of a right, such as the right to an adequate standard of living, [or the right to the highest attainable standard of health] also compromises the right to fulfillment of other protected rights, such as the right to dignity inherent to every person and the right to the full and equal exercise of human rights and freedoms.⁶⁵ 

The argument that the government has a legal duty to accommodate intravenous drug users by establishing safe injection facilities is based in large part on the fact that Canadian legislation and jurisprudence defines drug addicted persons as disabled.⁶⁶ Canadian human rights legislation prohibits discrimination based on a disability.⁶⁷ Relevant international human rights declarations and covenants also prohibit such discrimination:

Universal Declaration of Human Rights⁶⁸ 
Article 1. All human beings are born free and equal in dignity and rights…

Article 2. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 7. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

International Covenant on Civil and Political Rights⁶⁹ 

Article 26. All persons are equal before the law and are entitled without discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

International Covenant on Social, Economic and Cultural Rights⁷⁰ 

Article 2(2). The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Declaration on the Rights of Disabled Persons⁷¹

Article 2. Disabled persons shall enjoy all the rights set forth in this Declaration. These rights shall be granted to all disabled persons without any exception whatsoever and without distinction or discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, state of wealth, birth or any other situation applying either to the disabled person himself or herself or to his or her family.

In the case of safe injection facilities, the argument under s.7 of the Charter is essentially that intravenous drug users are being deprived of their right to security of the person, which includes the right to physical and psychological integrity and basic human dignity, by not having available medical services in the form of safe injection facilities, which are reasonably required for their medical condition.⁷² The other Charterargument is based on case law that suggests that where discrimination based on an enumerated ground in s.15(1) is made out, government can be required to take positive action to remedy the problem⁷³. As discussed above, both federal and provincial governments have committed to undertaking certain legal obligations found in various international human rights treaties to which Canada is a party. Listed below are some of the relevant provisions related to the issue of providing safe injection facilities in the face of a publicly declared epidemic.⁷⁴

Universal Declaration of Human Rights⁷⁵ 

Article 22. Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Article 25.1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

Declaration on the Rights of Disabled Persons ⁷⁶

Article 3. Disabled persons have the inherent right to respect for their human dignity. Disabled persons, whatever the origin, nature and seriousness of their handicap and disabilities, have the same fundamental rights as their fellow-citizens of the same age, which implies first and foremost the right to enjoy a decent life, as normal and full as possible.

Article 6. Disabled persons have the right to medical, psychological and functional treatment, including prosthetic and orthetic appliances, to medical and social rehabilitation, education, vocational training and rehabilitation, aid, counseling, placement services and other services which will enable them to develop their capabilities and skills to the maximum and will hasten the processes of their social integration or reintegration.

Article 8. Disabled persons are entitled to have their special needs taken into consideration at all stages of economic and social planning.

International Covenant on Economic, Social and Cultural Rights ⁷⁷

Article 12
1. The State Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

(c) The prevention, treatment and control of epidemic, endemic,
occupational and other diseases;

(d) The creation of conditions which would assure to all medical service
and medical attention in the event of sickness.

Considering that Article 12 of the ICESCR is one of the key international treaty obligations related to the issue of safe injection facilities, it is helpful to consider General Comment No. 14,⁷⁸ the Committee’s clarification of the right to the “highest attainable standard of physical and mental health”. From that detailed document I have gleaned the following pertinent points:

8. The right to health contains both freedoms and entitlements. …the entitlements include the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.

12. The right to health in all its forms and all levels contains the following interrelated and essential elements…:

a) Availability. Functioning public health and health-care facilities, goods and services, as well as programmes, have to be available in sufficient quantity within the State party.

b) Accessibility. Health facilities, goods and services have to be accessible
to everyone without discrimination…. Accessibility has four overlapping dimensions:

Non-discrimination: health facilities, goods and services must be accessible to all, especially the most vulnerable or marginalized sections of the population.

Physical accessibility: health facilities, goods and services must be within safe physical reach for all sections of the population, especially vulnerable or marginalized groups….

Economic accessibility: health facilities, goods and services must be affordable for all.

Information accessibility: the right to seek, receive and impart information and ideas concerning health issues.

c) Acceptability. All health facilities, goods and services must be respectful of medical ethics and culturally appropriate, i.e., respectful of the culture of individuals, minorities, peoples and communities.

d) Quality. Health facilities, goods and services must also be scientifically
and medically appropriate and of good quality.

16. Article 12.2(c) requires the establishment of prevention and education programmes for behaviour related health concerns…. The right to treatment includes the creation of a system of urgent medical care in cases of accidents, epidemics and similar health hazards…. The control of diseases refers to States’ individual and joint efforts to, inter alia, make available relevant technologies, using and improving epidemiological surveillance and data collection on a disaggregated basis, the implementation or enhancement of immunization programmes and other strategies of infectious disease control.

17. Article 12.2(d) includes the provision of equal and timely access to basic preventative, curative, rehabilitative health services and … appropriate treatment of prevalent diseases….

18. The Committee recalls General Comment No. 3, paragraph 12, which states that even in times of severe resource constraints, the vulnerable members of society must be protected by the adoption of relatively low-cost targeted
programmes.

26. The Committee reaffirms paragraph 34 of its General Comment No. 5,⁷⁹ which addresses the issues of persons with disabilities in the context of the right to physical and mental health. [That paragraph states in part: “According to the Standard Rules,⁸⁰ ‘states should ensure that persons with disabilities…are provided with the same level of medical care within the same system as other members of society’. All such services should be provided in such a way that persons concerned are able to maintain full respect for their rights and dignity.”]

31. State parties have a specific and continuing obligation to move as expeditiously and effectively as possible towards the full realization of article 12.

32. As with all other rights in the Covenant, there is a strong presumption that retrogressive measures taken in relation to the right to health are not permissible.

33. The right to health, like all human rights, imposes three types or levels of obligations on States parties: the obligation to respect, protect and fulfill. …the obligation to fulfill requires States to adopt appropriate legislative, administrative, budgeting, judicial, promotional and other measures towards the full realization of the right to health.

34. … states are under the obligation to respect the right to health by, inter alia, refraining from denying or limiting equal access for all persons….

35. Obligations to protect include, inter alia, …measures to protect all vulnerable or marginalized groups of society….

37. The obligation to fulfill (facilitate) requires States, inter alia, to take measures that enable and assist individuals and communities to enjoy the right to health. States are also obliged to fulfil (provide) a specific right contained in the Covenant [e.g. to treat, prevent and control epidemics] when individuals or a group are unable, for reasons beyond their
control, to realize that right themselves by the means at their disposal.

43. …States parties have a core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights enunciated in the Covenant…. These core obligations include at least the following obligations:

(a) To ensure the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalized groups.

(f) To adopt and implement a national public health strategy and plan of
action, on the basis of epidemiological evidence…[which] shall give
particular attention to all vulnerable or marginalized groups.

44. The Committee also confirms that the following are obligations of comparable priority: (c) To take measures to prevent, treat, and control epidemic and endemic Diseases;

47. … a State party cannot, under any circumstances whatsoever, justify its non-compliance with the core obligations set out in paragraph 43 above, which are non-derogable.

48. The adoption of any retrogressive measures incompatible with the core obligations under the right to health…constitutes a violation of the right to health.

49. Violations of the right to health can also occur through the omission or failure of States to take necessary measures arising from legal obligations.

50. Violations of the obligation to respect are those State actions, policies or laws that contravene the standards set out in Article 12 of the Covenant and are likely to result in bodily harm, unnecessary morbidity and preventable mortality. Examples include the denial of access to health facilities, goods and services to particular individuals or groups as a result of de jure or de facto discrimination….

51. Violations of the obligation to fulfill occur through the failure of States parties to take all necessary steps to ensure the realization of the right to health. Examples include… insufficient expenditure or misallocation of public resources which results in the non-enjoyment of the right to health by individuals or groups, particularly the vulnerable or marginalized….

61. Judges and members of the legal profession should be encouraged by State parties to pay greater attention to violations of the right to health in the exercise of their functions.

62. State parties should respect, protect, facilitate and promote the work of human rights advocates and other members of civil society with a view to assisting vulnerable or marginalized groups in the realization of their right to health.

Many of the above comments related to violations of the right to health correspond to the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights.⁸¹ Some of the guidelines relevant to this discussion are listed below:

4. It is now undisputed that all human rights are indivisible, interdependent, interrelated and of equal importance for human dignity. Therefore, States are as responsible for violations of economic, social and cultural rights as they are for violations of civil and political rights.⁸²

5. As in the case of civil and political rights, the failure by a State party to comply with a treaty obligation concerning economic, social and cultural rights is, under international law, a violation of that treaty.

9. Violations of the Covenant occur when a State fails to satisfy what the Committee on Economic, Social and Cultural Rights has referred to as “a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights…. Thus, for example, a State party in which any significant number of individuals is deprived of…essential primary health care…is , prima facie, violating the Covenant”. Such minimum core obligations apply irrespective of the availability of resources of the country concerned or any other factors and difficulties.

11. A violation of economic, social and cultural rights occurs when a State pursues, by act or omission, a policy or practice which deliberately contravenes or ignores obligations of the Covenant, or fails to achieve the required standard of conduct or result.

15. Violations of economic, social and cultural rights can also occur through the omission or failure of States to take necessary measures stemming from legal obligations. Examples of such violations include:

(a) The failure to take appropriate steps as required under the Covenant;

(c) The failure to enforce legislation or put into effect policies designed to implement provisions of the Covenant;

(e) The failure to utilize the maximum of available resources towards the full realization of the Covenant

21. Victims of violations of economic, social and cultural rights should not face criminal sanctions purely because of their status as victims, for example, through laws criminalizing persons for being homeless. [Or, addicted persons should not be criminalized for their medical condition, particularly when the government fails to provide the necessary facilities to treat that condition.]

22. Any person or group who is a victim of a violation of an economic, social or cultural right should have access to effective judicial or other appropriate remedies at both the national and international levels.

ENFORCEMENT OF INTERNATIONAL HUMAN RIGHTS TREATY OBLIGATIONS

Having identified Canada’s international, binding legal obligations with regard to the right to health and the steps required to achieve the full realization of that right, the question of enforcement remains. “The problem of enforcement is particularly acute in the case of international human rights norms, as they do not generally implicate the rights of States, but, rather, rights of individuals. …the recognition of the existence and substance of international human rights does not address the practical issue of how such rights are to be vindicated.”⁸³ Unlike the ICCPR, the ICESCR has no petition system whereby both States and individuals may register human rights complaints before a Commission, although there is a proposal for an optional protocol currently being reviewed by States.⁸⁴

While there is no enforcement mechanism, the ICESCR does have a modest compliance mechanism. Parties to the Convention are required to report periodically to the Committee. The Committee formulates observations and recommendations based on those State reports. The Committee also periodically issues general commentaries on its interpretation of the provisions in the Covenant. Those observations, commentaries and recommendations are non-binding and unenforceable, however, they are generally considered authoritative. Nevertheless, the ICESCR clearly is a “highly relevant and persuasive source” for, and “critical influence” on, statutory interpretation, including, but not limited to, the scope of rights in the Charter.⁸⁵ At the very least, it has political value and moral force by highlighting the failure of federal and provincial governments to fulfill their obligations under the Covenant to protect the most vulnerable and marginalized people in our society. Certainly, relying on provisions of international human rights treaties will enhance the arguments, under Canadian human rights legislation and the Charter, that governments have a legal obligation to prevent, treat and control epidemics amongst intravenous drug users and that safe injection facilities are one reasonable and necessary means by which they could, and should, achieve that.

CONCLUSION

This paper is intended to be read in the context of human rights and Charter arguments specifically related to the issue of safe injection facilities. Nevertheless, the analysis contained herein is just as applicable to other human rights issues. Clearly, international human rights norms have a role within the Canadian legal system. That role is becoming more evident as higher courts, especially, increasingly turn to international human rights treaties for guidance in determining the nature and scope of domestic human rights. Moreover, it is incumbent upon legal advocates to remind the judiciary, especially at the lower court levels, of the important role international human rights law has in defining the Canadian human rights regime. On the issue of safe injection facilities, international treaty law provides strong support for the proposition that domestic legislation imposes a positive, legal obligation on governments to stop the epidemics of disease and death associated with drug addiction.

ENDNOTES

¹ Canadian National Task Force on HIV, AIDS and Injection Drug Use, “HIV/AIDS and Injection Drug Use: A National Action Plan (1997)”, at 3-4, on-line: The Canadian Foundation for Drug Policy www.cfdp.ca/hivaids.html (last modified: 24 July 2001).

² Penny Parry, “Something to Eat, A Place to Sleep and Someone Who Gives a Damn”, HIV/AIDS and Injection Drug Use in the DTES, Final project report to the DTES Community, Ministry of Health and V/RHB, 1997.

³ Selected Vital Statistics and Health Status Indicators, 1996-2000: Drug induced deaths by age and gender. Victoria: British Columbia Vital Statistics Agency.

⁴ Canada Communicable Disease Report, “Hepatitis C – Prevention and Control: a Public Health Consensus”, Vol. 2552 (Supplement, June 1999; online: www.hc-sc.gc.ca/hpb/lcdc/publicat/ccdr/99vol25/25s2/index.html (last modified: 9 July 1999).

⁵ Both the press release and the report are available online at: The Canadian HIV/AIDS Legal Network http://www.aidslaw.ca/Maincontent/issues/druglaws.htm (date accessed: 20 April 2002).

⁶ Perry Bulwer, “Safe Injection Facilities: Compelling Government to Act”, December 2001, online on this website.

⁷ International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 U.N.T.S. 3, Can. T.S. 1976 No. 46 (entered into force 3 January 1976, accession by Canada 19 August 1976).

⁸ John Currie, Public International Law, Toronto: Irwin Law, 2001, online: QL (CURR), at Ch. 6.B.

⁹ The Supreme Court of Canada held that international custom is evidenced by “substantial uniformity or consistency, and general acceptance”. Reference Re Newfoundland Continental Shelf, [1984] 1 S.C.R. 86 at 118.

¹⁰ Reference Re Powers of Ottawa (City) v. Rockcliffe Park, [1943] S.C.R. 208.

¹¹ Currie, supra note 8 at Ch.6.C(2).

¹² Re Newfoundland Continental Shelf, [1984] 1 S.C.R. 86; Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; Pushpanatham v. Canada, [1998] 1 S.C.R. 982; Saint John v. Fraser-Brace Overseas Corp., [1958] S.C.R. 263.

¹³ Currie, supra note 11; “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.” Driedger on the Construction of Statutes, 3rd ed. 1994 at 330.

¹⁴ “There would appear to be no reason in principle why the same could not be achieved, at least in the common law provinces of Canada, by binding judicial pronouncement.” Currie, supra note 8 at Ch.6.C(1).

¹⁵ Ibid. at Ch.6.C(3)(b).

¹⁶ Ibid. at Ch.4.G(1).

¹⁷ Vienna Convention on the Law of Treaties, UN Doc A/Conf 39/28, UKTS 58 (1980), 8 ILM 679, concluded at Vienna 23 May 1969, entered into force 27 January 1980.

¹⁸ Ibid.; Article 46 provides that a state cannot vitiate its consent to be bound by a treaty by claiming that that consent violated its domestic law, unless the violation was fundamental and manifest. These two articles should not be conflated. Article 27 concerns treaty performance, article 46 concerns treaty conclusion.

¹⁹ Ibid.

²⁰ International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, CAN. T.S. 1976 No. 47, entered into force 23 March 1976, accession by Canada 19 May 1976.

²¹ Supra note 7.

²² UN Economic and Social Council, E/C.12/1989/SR.8, 15 February 1989, Committee on Economic, Social and Cultural Rights, Third Session, Summary Record of the 8th Meeting at paras.2,3.

²³ Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, Minutes of Proceedings and Evidence, First Session of the Thirty-Second Parliament, 1980-1981, Issue No. 49 (30 January 1981) at pp. 65-71; cited in the Factum of the Charter Committee on Poverty Issues, In The Supreme Court of Canada, Gosselin v. Le Procureur General du Quebec, Court File No. 27418.

²⁴ Supra note 7; Bulwer, supra note 6 at 18-19; Health Act, R.S.B.C. 1996 C.179 at s.7(1).

²⁵ Ibid. note 7.

²⁶ For example, pacta sunt servanta and Articles 26 &27 of the Vienna Convention.

²⁷ UN Economic and Social Council, E/C.12/1998/24, CESCR General Comment 9 at paras.1,2,5.

²⁸ Committee on Economic, Social and Cultural Rights, General Comment 3, UN Doc. HRI\GEN\Rev.1 at 45 (1994) at paras. 2-5,7,9,10,12.

²⁹ P.van Dijik, “Domestic Status of Human Rights Treaties and the Attitude of the Judiciary in the Dutch Case”, in M. Nowak, D.Steurer and H. Tretter, eds., Progress in the Spirit of Human Rights (1988) at 631; cited in C.R. Craven, “The Domestic Applicability of the ICESCR, Netherlands International Law Review, Vol. XL Iss.3, 1993 at 377.

³⁰ Francis v. The Queen, [1956] S.C.R. 618 at 621.

³¹ Capital Cities Communications v. Canadian Radio-Television Commission, [1978] 2 S.C.R. 141 at 173.

³² Ibid. at 188.

³³ Ibid. at 189.

³⁴ For example, legislation can repeat or paraphrase, in the body of the legislation, the terms of a treaty, or the treaty provisions, in whole or in part, might be enacted by incorporating them by reference into the implementing legislation.

³⁵ Currie, supra note 8 at Ch.6.C(3)(d)(ii); National Corn Growers Assn. V. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; Canada (A.G.) v. Ward, [1973] 2 S.C.R. 689; Thomson v. Thomson, [1994] 3 S.C.R. 551; Pushpanatham v. Canada, [1998] 1 S.C.R. 982.

³⁶ Pushpanatham, ibid. at 1019-20.

³⁷ Currie, supra note 35.

³⁸ Reference Re Public Service Employee Relations Act (Alta), [1987] 1 S.C.R. 313 at paras. 57-60.

³⁹ Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 at 1056-57.

⁴⁰ R. v. Keegstra, [1990] 3 S.C.R. 697 at 750.

⁴¹ Daniela Bassan, “The Canadian Charter and Public International Law: Redefining the State’s Power to Deport Aliens” (1996) 34 Osgoode Hall L.J. 583-625 at para. 14.

⁴² Universal Declaration of Human Rights, adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948.

⁴³ Singh v. Canada (Employment and Immigration), [1985] 1 S.C.R. 177 at para. 109.

⁴⁴ Supra notes 32 & 33, where Pigeon J. argued that unimplemented treaties do have a domestic legal effect.

⁴⁵ Ernewein v. Canada (Employment and Immigration), [1980] 1 S.C.R. 639 at 658.

⁴⁶ R. v. Ewanchuk, [1999] 1 S.C.R. 330 at para. 73.

⁴⁷ Ibid.; Bruce Porter, “Judging Poverty: Using International Human Rights Law to Refine the Scope of Charter Rights”, Journal of Law and Social Policy (2000), vol.15, 117-162 at 146.

⁴⁸ Supra note 41 at para.15.

⁴⁹ Craig Scott, “Canada’s International Human Rights Obligations and Disadvantaged Members of Society: Finally into the Spotlight?” Constitutional Forum (1999) 10:4, 97-111 at 100.

⁵⁰ Ibid.

⁵¹ For a good discussion of the cases she cites, and others, as well as a critique of the transformation doctrine see: Ken Norman, “Taking Human Rights Lightly: The Canadian Approach”, National Journal of Constitutional Law (Feb. 2001) vol.12, 291-308.

⁵² Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39 at para. 70.

⁵³ Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

⁵⁴ Supra note 48.

⁵⁵ The Hon. Mr. Justice Gerald La Forest, “The Expanding Role of the Supreme Court of Canada in International Law Issues” (1996) 34 Can. Y.B. Int’l Law 89 at 98 and 110-111; cited in Scott, supra note 48 at 110.

⁵⁶ The Hon. Antonio Lamer, “Enforcing International Human Rights Law: The Treaty System in the 21st Century”, speech at York University, Toronto, 22 June 1997 at 3,4,& 7; cited in Scott, supra note 48 at 110.

⁵⁷ Human Rights Code, R.S.B.C. 1996, C.210, proclaimed in force 1997.

⁵⁸ Canadian Human Rights Act, R.S.C. 1985, C. H-6.

⁵⁹ Canadian Charter of Rights and Freedoms, Constitution Act, 1982.

⁶⁰ Scott, supra note 48 at 97; supra note 37.

⁶¹ Gosselin v. Quebec (Procureur general, [1999] R.J.Q. 1033 (C.A.) (appeal heard by S.C.C. in 2001, decision pending)

⁶² Vienna Declaration and Programme of Action, General Assembly, Distr. GENERAL A/CONF.157/23, 12 July 1993, preamble para. 8.

⁶³ Proclamation of Teheran, Secretariat Centre for Human Rights, Proclaimed by the International Conference on Human Rights at Teheran on 13 May 1968.

⁶⁴ Supra note 61 at para. 5.

⁶⁵ Supra note 60 at paras. 349-354.

⁶⁶ Supra note 57 at section 25; Entrop v. Imperial Oil Ltd., [2000] O.J. 2689 (Ont. CA), 50 O.R. (3rd) 18 at para. 89; Toronto Dominion Bank v. Human Rights Commission (1998), 163 D.L.R. (4th) 193 (FCA) at paras. 1, 15, 16 of majority decision; R. v. Nguyen (1995), 56 B.C.C.A. 290 at para. 13, citing Oliver J. in R. v. Ping Li (unreported, 19 November 1993) Vancouver Registry No. CC930521.

⁶⁷ Supra note 56 at section 8(1); supra note 57 at section 3; supra note 58 at section 15(1).

⁶⁸ Supra note 42.

⁶⁹ International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976, in accordance with Article 49.

⁷⁰ Supra note 7.

⁷¹ Declaration on the Rights of Disabled Persons, Proclaimed by General Assembly resolution 3447 (XXX) of 9 December 1975.

⁷² For the entire argument see Bulwer, supra note 6.

⁷³ Ibid.

⁷⁴ Other international human rights instruments not listed here but that contain provisions relating to the right to health include: International Convention on the Elimination of All Forms of Racial Discrimination,1965, article 5(e)(iv); Convention on the Elimination of All Forms of Discrimination against Women, 1979, articles 11.1(f) and 12; Convention on the Rights of the Child, 1989, article 24; European Social Charter, 1961, article 11; African Charter on Human and Peoples’ Rights, 1981, article 16; Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, 1988, article 10; Commission on Human Rights, resolution 1989/11; and many others.

⁷⁵ Supra note 42.

⁷⁶ Supra note 70.

⁷⁷ Supra note 7.

⁷⁸ Economic and Social Council, E/C.12/2000/4, CESCR General Comment 14, 4 July 2000.

⁷⁹ CESCR General Comment 5, 9 December 94.

⁸⁰ Standard Rules on the Equalization of Opportunities for Persons with Disabilities, General Assembly resolution 48/96 of 20 December 1993.

⁸¹ In January 1997, on the 10th anniversary of the Limburg Principles on the Implementation of the ICESCR, a group of thirty experts met in Maastricht, the Netherlands to elaborate on the Limburg Principles as regards the nature and scope of violations of economic, social and cultural rights and appropriate responses and remedies.

⁸² See Robert J.’s judgement, supra note 64.

⁸³ Supra note 8 at Ch.10.B(6)(d).

⁸⁴ UN Committee on Economic, Social and Cultural Rights, Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: Note by the Secretary-General, UN ESCOR, 53rd Sess., Annex, UN Doc. E/CN.4/1997/105 (1996).

⁸⁵ Supra notes 38 & 51.


BIBLIOGRAPHY

LEGISLATION

Human Rights Code, R.S.B.C. 1996, C.210.

Capital Cities Communications v. Canadian Radio-Television Commission, [1978] 2 S.C.R. 141.

Gosselin v. Quebec (Procureur general, [1999] R.J.Q. 1033 (C.A.) (appeal heard by S.C.C. in 2001, decision pending)

R. v. Keegstra, [1990] 3 S.C.R. 697.

Reference Re Powers of Ottawa (City) v. Rockcliffe Park, [1943] S.C.R. 208.

Singh v. Canada (Employment and Immigration), [1985] 1 S.C.R. 177.

INTERNATIONAL TREATIES, COVENANTS, CONVENTIONS, DECLARATIONS, AND OTHER INSTRUMENTS

Declaration on the Rights of Disabled Persons, Proclaimed by General Assembly resolution 3447 (XXX) of 9 December 1975.

Economic and Social Council, E/C.12/1989/SR.8, 15 February 1989, Committee on Economic, Social and Cultural Rights, Third Session, Summary Record of the 8th Meeting.

Standard Rules on the Equalization of Opportunities for Persons with Disabilities, General Assembly resolution 48/96 of 20 December 1993.

SECONDARY MATERIAL: ARTICLES, MONOGRAPHS, REPORTS
Canadian National Task Force on HIV, AIDS and Injection Drug Use, “HIV/AIDS and Injection Drug Use: A National Action Plan (1997)”, on-line: The Canadian Foundation for Drug Policy www.cfdp.ca/hivaids.html (last modified: 24 July 2001).

La Forest, G., “The Expanding Role of the Supreme Court of Canada in International Law Issues” (1996) 34 Can. Y.B. Int’l Law 89.

Porter, B., “Judging Poverty: Using International Human Rights Law to Refine the Scope of Charter Rights”, Journal of Law and Social Policy (2000), vol.15, 117-162.

Sullivan, R., Driedger on the Construction of Statutes, 3rd ed. 1994.