OTTAWA - Canadian courts should be as vigorous and open-minded in vindicating the constitutional claims of low-income and disadvantaged people to shelter, food and the basic necessities of life as they have been in protecting civil liberties and the Charter rights of accused criminals, says United Nations High Commissioner for Human Rights Louise Arbour.
In a provocative keynote address to be delivered tonight in Quebec City at a symposium organized by the Dominion Institute, the former Supreme Court of Canada judge challenges Canadian litigants and Canadian courts, including her ex-colleagues at the Supreme Court, to be less "timid" in tackling head on "claims emerging from the right to be free from want."
Pointing to India where the Supreme Court in 2001 recognized the right to food as an integral element of the right to life as an example, Arbour said the Canadian Charter's guarantee of the right to life, liberty and security of the person offers ample scope for recognizing and protecting the social and economic rights of Canadians who are poor and disadvantaged.
"As is the case for civil and political rights, economic and social rights may --and in many circumstances must -- be backed by legal remedies. Courts the world over have been playing an increasingly vital role in enforcing socio-economic rights, within the bounds of their justiciability, bringing them from the realms of charity to the reach of justice," Ms. Arbour states in her speech. A copy was obtained by CanWest News Service.
"Ultimately the potential to give economic, social and cultural rights the status of constitutional entitlement represents an immense opportunity to affirm our fundamental Canadian values, giving them the force of law."
Ms. Arbour notes Canadian courts have "championed civil and political rights" and have taken an active role in enforcing the rights of accused when the state repressively uses its criminal law powers. "But considerably more reticence has been expressed in relation to social, economic and cultural rights and the protection of vulnerable segments of the population on grounds other than discrimination," she says.
Reached last night, Ms. Arbour said "my key message is that Canada should not be complacent about our commitment to human rights, I think it would be unfortunate if we had an unduly romantic vision of ourselves in the world, on the basis of the immense progress and leadership we have shown in civil and political rights, and in particular in non-discrimination and equality issues. But I think in economic and social rights, historically we have been dragging our feet quite embarrassingly actually."
She said she is not concerned that courts would be open to charges of judicial activism if they start telling governments how to spend money.
"I'd like to see the same kind of intellectual imagination that Canadian courts have shown in the last 20 years on civil and political rights. . . apply to economic and social rights," she said. "Everybody understands also that there are constraints on the appropriate remedies, but frankly I don't think the courts should be guided in their intellectual pursuits by criticisms that are not well founded. This is no different, in my view, than in the early days of the Charter with the courts asking themselves: "What does a fair trial mean?" and "What does a speedy trial mean?" And "How much is it going to cost?" is not the final answer to whether the courts should engage in exploring these kinds of ideas," she argued. "I think the Charter (of Rights and Freedoms) is full of promise for all that to be explored. The thing is that we have to launch the debate. I hope to contribute to launching it."
UNITED NATIONS - Lawyers representing Rwandans charged in the country's 1994 genocide aim to have proceedings against their clients stayed based on information contained in a recent National Post report.
At a press conference at the United Nations yesterday, the lawyers, several of them Canadian, charged that UN war crimes prosecutors appear to have suppressed evidence by not revealing the existence of a probe into the presidential assassination that sparked the genocide.
In a March 1 story, the Post uncovered a UN document dated Aug. 1, 1997, that raised the possibility that Tutsi rebels and not, as often presumed, Hutu extremists killed Juvenal Habyarimana, the Rwandan president, himself a Hutu, in a missile attack on his plane three years earlier.
The document further claimed that Canada's Louise Arbour, then chief war crimes prosecutor for the world body, called off the probe.
In a letter to the lawyers, the United Nations has confirmed the existence of the document, saying it has now been handed over to the tribunal, based in Arusha, Tanzania, where they can apply to see it.
The lawyers feel that the new information would have been useful for the defence of their Hutu clients and say that Ms. Arbour, now a justice with the Supreme Court of Canada, should have handed it over to them.
"There seems to have been prosecutorial misconduct and abuse of process," said Andre Tremblay of Montreal, co-counsel for Jean-Paul Akayesu, a former Rwandan mayor who is appealing a life sentence for his role in the genocide.
"At a minimum, [the remedy] consists of asking for disclosure of evidence and, as lawyers, we might ask for a stay of proceedings."
According to the newly discovered but still uncorroborated information, Tutsi rebels killed Rwanda's president on April 6, 1994.
Within hours of the assassination, Hutu extremists were calling for the murder of all Tutsis and Hutu moderates in a bloodletting that claimed at least 500,000 lives.
The report was produced by Michael Hourigan, a former investigator for the UN tribunal for Rwanda, who then briefly worked for the New York-based UN Office of Internal Oversight Services (OIOS), the world body's internal investigations unit.
His three-page account involved conversations with three informants who said they had shot down the president's plane. The three were reported to have said they committed the act on orders from Paul Kagame, a Tutsi who has been Rwanda's de facto leader since the genocide. He is currently the country's interim president following last week's resignation of Pasteur Bizimungu, a Hutu.
Rwandan officials have strongly denounced accounts in the National Post as propaganda by extremist Hutu exiles seeking to revise history.
United Nations and other accounts of the shooting have most often put the blame on Hutu extremists in the former army, government and militia, who carried out the genocide. They were thought to oppose Mr. Habyarimana because he appeared ready to give into international pressure to share power with Mr. Kagame's rebel Rwandan Patriotic Front.
Mr. Hourigan, a former Australian prosecutor now based in Atlanta, is currently involved in a legal action against the United Nations on behalf of two Rwandan women whose families were murdered by Hutus in 1994 despite being protected by UN peacekeepers.
He had worked as an investigator for the UN genocide tribunal in Kigali, the Rwandan capital, and is believed to have told Ms. Arbour in early 1997 about the three informants' allegations against Mr. Kagame.
Ms. Arbour has not commented on the conversation.
Mr. Hourigan, UN sources said, later gave the OIOS a three-page report summarizing the tribunal's investigation, including the one into the assassination.
In the letter to the lawyers representing the genocide suspects, the United Nations says that "such internal OIOS memoranda are for OIOS use only and thus the document was not transmitted to [the tribunal]."
Reuters reported yesterday that the United Nations has uncovered the report. However, the world body searched for the report only after the National Post's March 1 article brought the document to light.
About 40 Rwandan Hutus have been detained on charges of participating in the genocide. A group of 22 lawyers is demanding disclosure of documents related to the case. "My client's indictment refers to the shooting down of the plane and that the killings started immediately," said Tiphaine Dickson, a Montreal lawyer representing suspect Georges Rutaganda, a former businessman and vice-president of Interahamwe, a Hutu militia.
"A prosecution witness stated in our case that the person or persons who shot down that plane knew what would happen. This is why the evidence is material."
Ms. Dickson said she asked in the tribunal's court on Feb. 7, 1997, for a report on "the investigation" into the assassination. Court transcripts from that day reveal that the prosecution denied there was an investigation.
"First, we don't have any such investigation. We have not made any such investigation and we don't have any reports," said Yacob Haile-Mariam, for the prosecution. "And, secondly, it is not our function, it is not our mandate, to investigate plane crashes or presidents, vice-presidents, or whoever it is."
Ms. Dickson said yesterday she again tried to petition the court in October, 1997, about the shooting down of the plane. "My request was denied by the court," she said.
The date is significant because the UN admits in its letter to the lawyers that Ms. Arbour knew one month earlier about the reference to the investigation in the Aug. 1, 1997, document.
"If there was an investigation going on, she, as chief prosecutor, should have known about it," said Mr. Tremblay yesterday.
The UN letter was sent in reply to a request from the lawyers for the document. Of Ms. Arbour, the letter says: "The matters covered in the report were discussed in September, 1997, with Ms. Arbour, who was seized of this issue."