Remedies to ESC Rights:A Canadian Perspective Bruce Porter Turku November 14, 2006
Where there is a right, there is a remedy there runs through the English constitution that inseparable connection between the means of enforcing a right and the right to be enforced The saw ubu jus ibi remedium (where there is a right, there is a remedy) becomes from this point of view something much more important than a mere tautologous proposition. - Albert Dicey
The Right to an Effective Remedy in International Law "Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law". (Universal Declaration of Human Rights, Article 8)
The principle of effective remedies CESCR General Comment No. 9 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 relevant considerations, to be taken into account
The principle of effective remedies CESCR General Comment No. 9 (cont d) But this flexibility coexists with the obligation upon each State party to use all the 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. 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.
The principle of effective remedies CESCR General Comment No. 9 (cont d) The right to an effective remedy need not be interpreted as always requiring a judicial remedy. Administrative remedies will, in many cases, be adequate Any such administrative remedies should be accessible, affordable, timely and effective. An ultimate right of judicial appeal from administrative procedures of this type would also often be appropriate. whenever a Covenant right cannot be made fully effective without some role for the judiciary, judicial remedies are necessary.
The principle of effective remedies CESCR General Comment No. 9 (cont d) courts should take account of Covenant rights where this is necessary to ensure that the State's conduct is consistent with its obligations under the Covenant. Neglect by the courts of this responsibility is incompatible with the principle of the rule of law, which must always be taken to include respect for international human rights obligations.
CESCR Dialogue with Canada on Effective Remedies \ The Committee is deeply concerned at the information that provincial courts in Canada have routinely opted for an interpretation of the Charter which excludes protection of the right to an adequate standard of living and other Covenant rights. The Committee notes with concern that the courts have taken this position despite the fact that the Supreme Court of Canada has stated, as has the Government of Canada before this Committee, that the Charter can be interpreted so as to protect these rights. (1998 CO s Par. 15)
CESCR Dialogue with Canada on Effective Remedies (cont d)... economic and social rights should not be downgraded to "principles and objectives". (par. 52)... take concrete steps to ensure that Covenant rights are enforceable within the provinces and territories through legislation or policy measures and the establishment of independent and appropriate monitoring and adjudication mechanisms. (par. 52)
CESCR Dialogue with Canada on Effective Remedies (cont d) public institutions and officers at all levels of Government should be made aware by the State Party of Canada's human rights obligations under the Covenant. In this regard, the Committee wishes to make specific reference to its General Comment No. 9 on the domestic application of the Covenant.
The OP-ICESCR: What s at Stake? Scope of the OP Should the OP apply to all rights or provisions of the Covenant, or should it be restricted to certain rights? Should the OP exclude application to particular rights, such as the right to self-determination in article 1? Should States Parties have the ability to choose a la carte the articles of the Covenant or the particular rights (housing, food, etc.) which may be the subject of communications?
The OP-ICESCR: What s at Stake? The Mandate to Draft: What Canada, the U.K and others Insisted on Adding requests the Chairperson of the Working Group to prepare, taking into account all views expressed during the sessions of the Working Group on, inter alia, the scope and application of an optional protocol, a first draft optional protocol, which includes draft provisions corresponding to the various main approaches outlined in her analytical paper, to be used as a basis for the forthcoming negotiations
NGO Coalition Position: the OP must be Comprehensive Apply to all rights in the Covenant no a la carte. Apply to all Components of Rights (minimum core, non-discrimination, progressive realization) Applies to all types of government obligations (respect, protect, fulfill; negative and positive)
The Comprehensive Approach Respects the inter-relatedness of all rights Creates no hierarchy of rights Does not exclude particular classes of claimants corresponding to particular rights (homeless, if right to housing excluded, etc) Does not give Committee impossible task of separating out components of rights such as minimum core or discriminatory dimension Does not violate the principle that all rights are subject to effective remedies
All Other UN Petition Procedures are Comprehensive in Scope ICCPR individuals who claim that any of their rights enumerated in the Covenant have been violated. CERD individuals or groups of individuals claiming to be victims of a violation by that State Party of any of the rights set forth in this Convention
All Other UN Petition Procedures are Comprehensive in Scope (Cont d) CEDAW individuals or groups of individuals claiming to be victims of a violation of any of the rights set forth in the Convention CAT individuals who claim to be victims of a violation by a State Party of the provisions of the Convention.
All Other UN Petition Procedures are Comprehensive in Scope (Cont d) Draft Disability Convention OP individuals or groups of individuals who claim to be victims of a violation by that State Party of the provisions of the Convention. Migrant Workers Convention individuals.. who claim that their individual rights as established by the present Convention have been violated by that State Party Convention on Forced Disappearances individuals claiming to be victims of a violation of the provisions of this Convention.
The Principle of Effective Remedies under the Canadian Charter Purposive interpretation means that remedies provisions must be interpreted in a way that provides a full, effective and meaningful remedy for Charter violations since a right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach More specifically, a purposive approach to remedies requires at least two things. First, the purpose of the right being protected must be promoted: courts must craft responsive remedies. Second, the purpose of the remedies provision must be promoted: courts must craft effective remedies. (Doucet-Boudreaux 2003, para. 25)
The Principle of Effective Remedies and the Separation of Powers If the political branches are to be the final arbitrator of compliance with the Charter of their policy initiatives, it would seem the enactment of the Charter affords no real protection at all to the rights holders. Charter rights and freedoms, on this reading, would offer rights without a remedy by denying effective remedies. (Newfoundland (Treasury Board) v. N.A.P.E.)
The Preference for Positive Remedies Extending Benefits Over Negative Remedies While s. 15 may not absolutely require that benefits be available to single mothers, surely it at least encourages such action to relieve the disadvantaged position of persons in those circumstances. In cases of this kind, reading in allows the court to act in a manner more consistent with the basic purposes of the Charter. (Schachter v. Canada)
Avoiding a Legislative Vacuum that Leaves Rights Unprotected In Mahe v. Alberta the result of a declaration of invalidity would be to create a legislative vacuum (p. 392), The Court therefore simply issued a declaration in respect of the concrete rights which are due to the minority language parents in Edmonton under s. 23
The Positive Remedy May be to read in or strike out, depending on the statute A statute may be worded in such a way that it gives a benefit or right to one group (inclusive wording) or it may be worded to give a right or benefit to everyone except a certain group (exclusive wording). It would be an arbitrary distinction to treat inclusively and exclusively worded statutes differently. To do so would create a situation where the style of drafting would be the single critical factor in the determination of a remedy. (Schachter v. Canada)
The Remedy May be to read in or strike out, depending on the drafting (cont d) Dartmouth/Halifax County Regional Housing Authority v. Sparks security of tenure extended to thousands of tenants by severing exclusionary provisions M.v. H. Severence of restrictive provision extended spousal support to same-sex partners without altering structure of the legislation.
Declarations Preferred Over Injunctive Relief A declaration, as opposed to some kind of injunctive relief, is the appropriate remedy in this case because there are myriad options available to the government that may rectify the unconstitutionality of the current system. It is not this Court s role to dictate how this is to be accomplished. (Eldridge v. B.C.)
Suspended Declarations Give Governments Time to Respond, Consult with Affected Groups, or Produce New Legislation Although it is to be assumed that the government will move swiftly to correct the unconstitutionality of the present scheme and comply with this Court s directive, it is appropriate to suspend the effectiveness of the declaration for six months to enable the government to explore its options and formulate an appropriate response. (Eldridge v. B.C.)
Preference for Correcting Exercise of Discretion Over Legislative Change There are two distinct Charter application issues in this case. The first is to identify the precise source of the alleged s. 15(1) violations. As I will develop later, in my view it is not the impugned legislation that potentially infringes the Charter. Rather, it is the actions of particular entities -- hospitals and the Medical Services Commission -- exercising discretion conferred by that legislation that does so. Eldridge v. B.C.
Remedies Must Protect the Rights of Vulnerable Groups It cannot be overemphasized that the adjudicator's remedy in this case was a legislatively-sanctioned attempt to remedy the unequal balance of power that normally exists between an employer and employee. In interpreting and applying the Charter the courts must be cautious to ensure that it does not simply become an instrument of better situated individuals to roll back legislation which has as its object the improvement of the condition of less advantaged persons. Slaight Communications
Reluctance to Impose Damage Awards for Structural Violations the significant cost that would be incurred by the government were it required to pay damages must be considered. As Lamer C.J. held in Schachter, while a consideration of expenses might not be relevant to the substantive Charter analysis, it is relevant to the determination of the remedy. Requiring the government to pay out nearly half a billion dollars, the amount requested, would have a significant impact on the government s fiscal situation, and potentially on the general economy of the province of Quebec. Gosselin v. Quebec: Bastarache, J. for the Minority finding a violation
When there are systemic problems with Decision-Making, a Stronger Remedy May be Required While the appellants are admittedly not entitled to any particular legislative scheme, they are entitled to a remedy that will prevent further systematic and consistent violations of their constitutional rights. Only invalidating the impugned Customs legislation [rather than issuing a declaratory order with respect to the exercise of discretion] will achieve that goal. Bastarache in dissent in Little Sisters
Injunctions, Supervisory Orders and Contempt Proceedings are all Options Available under the Charter The power of courts to issue injunctions against the executive is central to s. 24(1) of the Charter which envisions more than declarations of rights. In this case, it was open to the trial judge in all the circumstances to choose the injunctive remedy on the terms and conditions that he prescribed. Doucet Boudreaux: Majority on the use of Supervisory Reporting Procedures
Remedial Considerations in Advocacy Asking for a more intrusive remedy may convince the Court to avoid a finding of violation. It is easier to develop stronger remedies in subsequent cases than to reverse findings Ineffective remedies for ESC rights damages the integrity of legal processes and reinforces a second-class status for ESC rights
Remedial Considerations in Advocacy (cont d) We must work with the remedies available in the statutory regime in which we are working. (eg. Remedy in Finlay was to require that federal funding be withheld if social assistance rates not adequate) We may need to enhance appreciation of importance of effective administrative remedies, consistent with GC No. 9