An Invitation To Human Rights Law
- April 30, 2020
- Clayton Rice, Q.C.
The coronavirus pandemic has pushed the national unemployment rate in Canada close to eight percent. Higher in Alberta. Many junior lawyers have lost associate positions during the economic downturn and numerous recent law graduates search for articling positions in vain. The forecast is bleak. And many ponder – where to find a place to stand?
Human rights are moored in the struggle against repression. They are the fundamental rights. Among them are the right to life, protection from slavery, freedom of expression and the right to a fair trial. The international legal regime frames these rights in respect for the inherent dignity and worth of the human person. Some human rights blend into civil and legal rights, particularly in national constitutions that contain an entrenched bill of rights. They have the capacity to ask the philosophical question: What is value? I stand where I stand because I believe in the right to be treated ethically.
Some theorists argue that international human rights law dates back to classical antiquity. Human rights are embraced by the concept of jus gentium in Roman law, an aspect of natural law described by the jurist Gaius as the common law of mankind. The modern concept of human rights may be traced to the Age of Enlightenment and the polemical texts of the late eighteenth century. Thomas Paine’s Rights of Man (1791), written in defence of the French Revolution, was distilled in Benjamin Franklin’s famous edit of Thomas Jefferson’s draft of the Declaration of Independence (1776): “We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness.” Human rights law is about inalienable rights.
The justification for human rights, sometimes their very existence, is often hinged by theorists on an overarching value such as human dignity. Other values are freedom, liberty, personal autonomy and self-determination. The variety of justifications, as rich as it is, was put to rest on December 10, 1948, when the United Nations General Assembly adopted the Universal Declaration of Human Rights at the Palais de Chaillot in Paris, France. The preamble to the declaration begins with recognizing “inherent dignity” and “inalienable rights” as the foundation of freedom, justice and peace. But the text goes further. Article 1 states that “[a]ll human beings are born free and equal in dignity and rights.” The text links dignity with rights conjunctively. Dignity, then, is more than an overarching value. It must have substantive content.
It is in the transition from international law to domestic legal systems where things get murky. The Charter of Rights and Freedoms, Part I of the Constitution of Canada, is a good example. In R v Morgentaler,  1 SCR 30 Justice Bertha Wilson, writing for herself at para 230, asserted that an aspect of respect for human dignity is “the right to make fundamental personal decisions without interference from the state.” It is a component of the right to liberty contained in s 7 of the Charter. In Rodriguez v British Columbia,  3 SCR 519 Justice John Sopinka recognized, at para 129, that Canadian society is “based upon respect for the intrinsic value of human life and on the inherent dignity of every human being […].” Yet, in Blencoe v British Columbia, 2000 SCC 44,  2 SCR 307 Justice Michel Bastarache held, at para 78, that “the notion of ‘dignity’ in the decisions of this Court is better understood not as an autonomous Charter right, but rather, as an underlying value.”
On April 20, 2020, the United States Supreme Court released the fractured opinion in Ramos v Louisiana, 590 US _ (2020) holding that the laws of Louisiana and Oregon permitting 10-2 majority verdicts violated the Sixth Amendment right to a jury trial. Justice Neil Gorsuch, at slip op pp 1-2, found it “hard to say” why the laws persisted when forty-eight states require unanimity. But the historical origins were clear. The law in Louisiana dated back to a constitutional convention in 1898 where the avowed purpose was to “establish the supremacy of the white race”. Adopted in the 1930s, the rule in Oregon could be traced to the rise of the Ku Klux Klan and efforts to dilute “the influence of racial, ethnic, and religious minorities on Oregon juries.” Although racist laws from the Jim Crow era were given voice by the same sordid theories underpinning the “barbarous acts” from which the Universal Declaration emerged, I could not find the word dignity anywhere in the court’s five opinions.
3. Criminal Lawyers
The practice of criminal law is the practice of human rights law. Article 10 of the Universal Declaration protects the right “to a fair and public hearing” and Article 11 preserves the right to be “presumed innocent”. The two are blended in s 11(d) of the Canadian Charter which preserves the right “to be presumed innocent until proven guilty according to law in a fair and public hearing”. The right to a fair trial is a classic example of international human rights law bleeding into domestic constitutional law. But the integrity of the administration of justice in Canada prior to the patriation of the constitution and the entrenched Charter in 1982 was in serious trouble.
In 1977 Professor Burke Barker of The University of Alberta, Faculty of Law, in Edmonton, also a practicing criminal lawyer, called together a think tank of like-minded members of the bar who were deeply concerned about the state of the justice system. Robert Davidson, Q.C., Alexander Pringle, Q.C., Barrie Chivers, Q.C., Philip Lister, Q.C. and myself were among them. But, first, let me tell you why we shared such a deep concern.
On May 4, 1967, a full nine member panel of the Supreme Court of Canada affirmed the conviction of Steven Truscott for the murder of Lynne Harper in a judgment indexed as Reference re: Truscott,  SCR 309. Many in the legal profession thought it was a wrongful conviction. Law professors taught the Truscott case to first year students. Professor Martin Friedland of the University of Toronto, Faculty of Law, devoted an entire chapter of his course book to it. Ten years later when the Edmonton think tank was embroiled in its inaugural meetings, the Truscott case was still on the minds of criminal lawyers.
On June 26, 1970, the Supreme Court of Canada released the ruling in R v Wray,  SCR 272 that a trial judge did not have a discretion to exclude admissible evidence because its admission would bring the administration of justice into disrepute. Six months later, on January 5, 1971, the Saskatchewan Court of Appeal upheld the conviction of David Milgaard for the murder of Gail Miller indexed as R v Milgaard (1971), 2 CCC (2d) 206. Professor Barker, a native of Saskatchewan, believed Milgaard had been wrongfully convicted. On November 15, 1971, the Supreme Court of Canada denied Milgaard’s application for leave to appeal reported as R v Milgaard (1971), 4 CCC (2d) 566. And on June 24, 1977, the Supreme Court of Canada released the opinion in R v Rourke,  1 SCR 1021 that a trial judge did not have a discretion to stay proceedings because a prosecution is oppressive.
That was the backdrop. But where to find a place to stand?
On November 17, 1977, five months after the ruling in Rourke, the Criminal Trial Lawyers Association was incorporated. With no place to stand in the constitution, we turned to the Universal Declaration. Article 2(a) of the application for incorporation provided that the first object of the society is “[t]o uphold the Universal Declaration of Human Rights and in particular Articles 1 to 21 inclusive of that Declaration”. It remains the first object today. And over the ensuing forty years the CTLA delivered on its promises – education in advocacy, advancement of the cause of those damaged in person or property by the actions of governments, preservation of trial by jury and the promotion of the administration of justice for the public good. Most recently, the CTLA appeared as an intervenor in R v Friesen, 2020 SCC 9 that Heather Ferg discussed in her last post to On The Wire.
4. Litigating Rights
The patriation of the Canadian constitution in 1982 with the entrenched Charter of Rights caused a paradigm shift in the nation and its justice system. The Charter, and the human rights values it embodies that inform fair trial interests, fundamentally changed how we practice law and revitalized a moribund judiciary. The twin rulings in Wray and Rourke are inconceivable to newer generations of criminal lawyers. I will give you some examples taken from my own practice over the last twenty years. They are all rulings of trial judges because I am a trial lawyer.
Remedies for violations of Charter rights exploded. The system simply was not equipped to obey the rules. Even today some will argue that human rights anywhere are honoured more in the breach. In R v Chan, 2003 ABQB 759, 15 CR (6th) 53 a stay of proceedings was granted in an organized crime prosecution for breach of speedy trial rights caused by an underlying violation of the state’s pretrial disclosure obligations. The disclosure order made in R v Lee, 2007 ABQB 454, 426 AR 315 is a good example of the change in systemic transparency where the state was compelled to provide pretrial disclosure of police conduct. And, in R v Jennings, 2018 ABQB 296, the defendant was granted standing to challenge a search by the warrantless deployment of a mobile device identifier called a Stingray II.
Pre-trial motions for the suppression of evidence obtained in a manner that violated Charter rights are a staple of practicing criminal law. In R v Caines, 2011 ABQB 692, 518 AR 227 intercepted private communications were excluded where the police breached the live monitoring requirements of a wiretap authorization based on the abuse of process doctrine. In R v Alcantara, 2012 ABQB 341, 546 AR 1 evidence seized from a private residence was excluded where the police had an arrest warrant but did not have a warrant to enter the residence to execute it. And, in R v Aldaba, 2014 ABQB 291, 608 AR 104 evidence in a wiretap case was excluded where the police confirmed voice identification by conversations with the defendant during his arrest in violation of the right to counsel.
The Charter, however, is not a panacea and we have faltered in rising to the challenge issued by the late Chief Justice Antonio Lamer – a challenge to find new ways to enhance Charter values by new and innovative remedies. The test for exclusion of unlawfully obtained evidence developed by the Supreme Court of Canada in R v Grant, 2009 SCC 32,  2 SCR 353 is dysfunctional and in need of reconsideration. The Grant test is unnecessarily weighted in favour of the state to the extent that Charter motions are being abandoned by defendants in favour of using violations as a bargaining chip to get better deals. The Charter demands more of us all.
Professor Philip Alston and Professor Ryan Goodman of New York University, School of Law, have argued in International Human Rights (2013) that, “[a]lthough the frailties of human rights as an ideal, an ideology or practice are evident, the concept of human rights has become a part of modern consciousness.” And the critique that human rights should be less politicized cannot be sustained. As Professor Andrew Clapham of the Graduate Institute of International Studies in Geneva, Switzerland, said in Human Rights: A Very Short Introduction (2015), “Human rights are political: they articulate the relationship between individuals and groups within a community and their relationship with others, particularly those with power and authority.”
The Universal Declaration of Human Rights was not left on the steps of the Palais de Chaillot in 1948. It is very much alive and close to home. The preamble to the Alberta Human Rights Act, RSA 2000, c A-25.5 is a reflection of the preamble to the Universal Declaration in recognition of the “inherent dignity” and the “inalienable rights” of all persons. I stand where I stand because I believe in the right to be treated ethically. I’ve been standing here a long time. And it has never been lonely. I will leave you, then, where I began and this from Paine’s Rights of Man: What Archimedes said of the mechanical powers, may be applied to Reason and Liberty: “Had we,” said he, “a place to stand upon, we might raise the world.”