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The Human Rights Covenants and Canadian Law

Published online by Cambridge University Press:  09 March 2016

Hugo Fischer
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Extract

The philosophy postulating the protection of human rights is based on values that are fundamental to western civilization. These values found expression in Jerusalem and in Athens. The divine command to love one’s neighbour as one loves oneself and to obey God’s laws is the basis of the sovereign’s duty to respect these “unwritten and immutable divine laws” of which Sophocles speaks. It took many centuries before these rights, “droits naturels et imprescriptible de l’homme,” were recognized by the state to the extent that their breach was supposed to entitle the citizens to revolt.

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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 15 , 1978 , pp. 42 - 83
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Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1978

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References

1 Lev. 19:18 and 34, repeated in Matt. 23:39, and Mark 12:31.

2 Antigone, 454. Cf. 2 Macc. 1:30: “I will not submit to the King’s command; I obey the command of the law given by Moses to our ancestors.”

3 La déclaration des droits de l’homme et du citoyen ( 1789 ), Article 2:

Le but de toute association politique est la conservation des droits naturels et imprescriptibles de l’homme. Ces droits sont la liberté, la propriété, la sûreté et la résistance à l’oppression.

The French constitution of 1946 “réaffirme solennellement les droits et les libertés de l’homme et du citoyen consacrés par la Déclaration des droits de 1789....” A century earlier, in the United Kingdom, the Bill of Rights (1688) merely recognized “the right of the subjects to petition the King” and declared “all commitments and prosecutions for such petitioning… illegal.” Similarly, the Constitution of the U.S.S.R. (Moscow News, Supplement to Issue No. 24(2752), 1977), while stating in Article 2 that “all power in the U.S.S.R. shall be vested in the people,” permits, in Article 58, “citizens of the U.S.S.R. to lodge complaints against actions of officials....”

4 Versailles Peace Treaty of 1919, Article 227.

5 The Charter, signed in London, on August 8, 1945, Treaty Series No. 27 (1946), Cmd. 6903, by the United States, the Soviet Union, Great Britain, and France, established the International Military Tribunal for the Trial of the German Major War Criminals. The Tribunal said of the Charter that it was “not an arbitrary exercise of power on the part of victorious nations, but… the expression of international law existing at the time of its creation; and to that extent… itself a contribution to international law”: Cmd. 6964, Miscellaneous No. 12 (1946), at 38. The trial in Nuremberg was followed in 1961 by the trial of Eichmann in Jerusalem. The Criminal Code of Canada, on the other hand, precludes in s. 15 the prosecution of a war criminal and thus condones his conduct, if he can base his defence on a “law” that was made by persons in de facto possession of the sovereign power over the place where the act or omission occurred: infra, text to note 200 et seq.

6 General Assembly Resolution 217A (III), of December 10, 1948.

7 United Nations Charter, Article 1(3).

8 The following eight (out of 56) abstained: Byelorussian S.S.R., Czechoslovakia, Poland, Saudi Arabia, Ukrainian S.S.R., Union of South Africa, U.S.S.R., and Yugoslavia.

9 Adopted July 9, 1948; entered into force July 4, 1950. It is referred to in Article 8(3) of the Economic Covenant and in Article 22(3) of the Civil Covenant.

10 Approved by General Assembly Resolution 260A (III), of December 9, 1948; entered into force January 12, 1951. It is referred to in Article 6(2) of the Civil Covenant.

11 Adopted by General Assembly Resolution 317 (IV), of December 2, 1949; entered into force July 25, 1951.

12 Adopted July 28, 1951; entered into force April 22, 1954.

13 Entered into force Dec. 7, 1953. On the state of conventional international law at the time the Convention was signed, see Fischer, , “The Suppression of Slavery in International Law,” (1950) 3 I.L.Q. 28.Google Scholar A Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery was adopted by a Conference of Plenipotentiaries convened by Economic and Social Council Resolution 608 (XXI), of April 30, 1956, and entered into force on April 30, 1957.

14 Adopted June 25, 1957; entered into force January 17, 1959.

15 General Assembly Resolution 1514 (XV), of December 14, 1960. It is referred to in Article 7 of the Optional Protocol.

16 Adopted and opened for signature and ratification by General Assembly Resolution 2106A (XX), of December 21, 1965; entered into force January 4, 1969. See Schwelb, , “The International Convention on the Elimination of All Forms of Racial Discrimination,” (1966) 15 I.C.L.Q. 996.CrossRefGoogle Scholar For the texts of the international documents mentioned (notes 9–16), see Human Rights: A Compilation of International Instruments of the United Nations (1973), U.N. Publications, Sales No. E.73.XIV.2.

17 Adopted and opened for signature, ratification, and accession by General Assembly Resolution 2200A (XXI), of December 16, 1966. The Economic Covenant entered into force on January 3, 1976, and the Civil Covenant and the Protocol on March 23, 1976. For the history of these documents, see Schwelb, , “Civil and Political Rights: The International Measures of Implementation,” (1968) 62 Am. J. Int’l L. 827 CrossRefGoogle Scholar, and “Entry into Force of the International Covenants on Human Rights and the Optional Protocol to the International Covenant on Civil and Political Rights,” (1976) 70 Am. J. Int’l L. 511.

18 Order in Council P.C. 1976-1156 of May 18, 1976; accession instrument deposited the same day; entered into force three months thereafter: Economic Covenant, Article 27; Civil Covenant, Article 49; and Protocol, Article 9.

19 Economic Covenant, Article 2(1); Civil Covenant, Article 2(2).

20 Civil Covenant, Article 28; Protocol, Articles 1–5. The international measures of implementation of the Civil Covenant are treated infra starting with text to note 113. For a possible result of Civil Covenant, Article 28, and Protocol, Articles 1–5, see infra text to note 136.

21 Protocol, Article 4(2), and see infra text to notes 132 et seq.

22 Schwelb, “Entry into Force…,” supra note 17, at 514. See also text preceding note 136. Under Article 35(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950, signed by members of the Council of Europe, U.N. Treaty Series (1955), No. 2889, at 221, the European Commission of Human Rights established by Article 20 “may receive petitions… from any person… claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention....”

23 Conference on Security and Co-operation in Europe, Final Act (Helsinki ’975). at 81.

24 These means are briefly mentioned infra, starting with text to note 137.

25 For the meaning of this expression, see infra text to note 103.

26 Article 24

Nothing in the present Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations and of the constitutions of the specialized agencies which define the respective responsibilities of the various organs of the United Nations and of the specialized agencies in regard to the matters dealt with in the present Covenant.

Article 25

Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.

The latter article should be read in conjunction with Article 1(2) of both Covenants. For the wording, see text to note 30. See also Halperin, “Human Rights and Natural Resources,“ (1968) 9 William and Mary L. Rev. 770, and Schwelb, “Civil and Political Rights…,” supra note 15, at 835, note 39.

27 As to this clause, see infra text to notes 137 et seq.

28 See infra text to note 125.

29 Declaration in General Assembly Resolution 1803 (XVII), of December 14, 1962, “Permanent Sovereignty over Natural Resources”:

1. The right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned.

30 Chapter XI, Declaration Regarding Non-Self-Governing Territories.

31 See also van Boven, Theodoor C., “Principes et normes des droits de l’homme,” Manuel de l’UNESCO: Dimensions internationales des droits de l’homme (Strasbourg 1976).Google Scholar

32 Supra note 15:

  1. 1.

    1. The subjection of peoples to alien subjugation, domination, and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation.

  2. 2.

    2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development.…

33 Ibid.:

6. Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.

34 An historical example where self-determination was achieved and the territorial integrity of an empire was preserved is the Ausgleich of 1867 that granted the Hungarian peoples self-determination and preserved the integrity of the Habsburg monarchy.

35 Avisory Opinion, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), [1971] I.C.J. Rep. 16, 86 (per Vice-President Amoun).

36 Western Sahara, Advisory Opinion, [1975] I.C.J. Rep. 12, 62.

37 Article 7 of the Protocol refers, however, only to colonial countries and peoples.

38 Article 2(1). As to this limitation, see infra text to note 128.

39 Article 2(3).

40 These limitations are as follows:

  1. 1.

    1. There must be an officially proclaimed emergency, one so grave that it threatens the life of the nation.

  2. 2.

    2. The derogation must not go further than “to the extent strictly required by the exigencies of the situation.”

  3. 3.

    3. The measures taken by the state party must not be inconsistent with its obligations under international law other than the Covenant.

  4. 4.

    4. The derogation must not involve discrimination “solely on the ground of race, colour, sex, language, religion, or social origin.”

  5. 5.

    5. “No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16, and 18 may be made under this provision.” (These articles are referred to in the text to notes 50-52, 55, 59, and 62.)

  6. 6.

    6. The state party must inform the other parties, through the Secretary General of the United Nations, of the provisions derogated from, its reasons and, again, when the derogation has terminated.

The War Measures Act, R.S.C. 1970, c. W-2, does not appear to be entirely consistent with these requirements. In particular, the Act permits the taking of extraordinary measures without the restrictions mentioned here under point 4 in circumstances that need not necessarily threaten the life of the nation. Critics of the Act consider it, in particular, wrong that the Act can be applied in peacetime. What is sometimes forgotten is that peace may not last without the exercise of the powers given by the Act.

41 Article The common law recognizes the freedom of choice. Cf. Nokes v. Doncaster Collieries, Ltd., [1940] A.C. 1014, per Lord Atkin at 1026: “I had fancied that ingrained in the personal status of the citizen under our laws was the right to choose for himself whom he would serve…,” and to a similar effect is Horwood v. Miller’s Timber and Trading Co. Ltd., [1917] 1 K.B. 305, per Cozens-Hardy M.R. at 311.

By s. 140 of the Unemployment Insurance Act, 1971, S.C. 1970–71–73, c. 48, the Minister of Employment and Immigration is charged with the organization and maintenance of a national employment service to assist workers in finding suitable employment and employers to find suitable workers.

The Canada Assistance Plan, R.S.C. 1970, c. C-1, is intended to give steady economic and social development and full and productive employment.

42 Article 7. Most employer-employee relations fall under provincial legislative authority: Toronto Electric Commissioners v. Snider, [1925] A.C. 396, per Viscount Haldane at 412. Exceptions are interprovincial undertakings, radio broadcasting stations, banks, and undertakings that have been declared by parliament to be for the general advantage of Canada: Commission du salaire minimum v. Bell Telephone Company of Canada, [1966] S.C.R. 767.

The Canada Labour Code, R.S.C. 1970, c. L-1, prohibits discrimination with respect to hiring or any condition of employment. It also provides for a minimum hourly rate of pay (s. 35), the safety of employees (section 79 et seq., c. 17 (2nd Supp.)), the hours of work (section 29 et seq.), annual vacations, and general holidays (section 39 et seq.). The Code (section 107 et seq., S.C. 1972, c. 18, s. 1) deals with bargaining rights, collective bargaining and collective agreements, conciliation, strikes, lockouts, unfair practices, and the promotion of industrial peace.

43 Article 8. The Canadian Bill of Rights, para. 1 (e), recognizes the freedom of assembly and association. The Canada Labour Code, in subsection 110 ( 1 ), S.C. 1972, c. 18, s. 1, assures each employee the freedom “to join the trade union of his choice and to participate in its lawful activities.” The Public Service Staff Relations Act, R.S.C. 1970, c. P–35, s. 8, prohibits interference with the formation or administration of an employee organization and discrimination against members of these organizations. Under the Unemployment Insurance Act, 1971, S.C. 1970–71–72, c. 48, benefits must not be denied to a claimant on the ground only of his leaving, or refusing to accept, employment if by remaining in or accepting the employment he would lose the right of trade union membership. The Trade Unions Act, R.S.C. 1970, c. Τ-11, regulates the constitution of trade unions, their property, and related matters.

44 Article 9. The Unemployment Insurance Act, supra note 43, s. 3, provides for unemployment insurance benefits, the Canada Pension Plan, R.S.C. 1970, c. C-5, for old age pensions and supplementary benefits, and the Old Age Security Act, R.S.C. 1970, c. O-6, for pensions to persons 65 years of age and over. See also the Canada Pension Plan, supra, the Blind Persons Act, R.S.C. 1970, c. B-7, the Disabled Persons Act, R.S.C. 1970, c. D-6, and the Unemployment Assistance Act, R.S.C. 1970, c. U-1.

45 Article 10. The prohibition of the Criminal Code against abduction of a female with intent to marry her (s. 248), procuring a feigned marriage (s. 256), and the unlawful solemnization of marriage (sections 258 and 259). The Statute Law (Status of Women) Amendment Act, 1974, S.C. 1974–7576, c. 66, provides for maternity leave of employees and benefits for mothers who have been in insurable employment for a certain number of weeks. The last paragraph of Article 10 is reproduced, in part, infra note 160.

46 Article 11. Contributions to the International Development Association are authorized by the International Development Association Act, R.S.C. 1970, c. 1–21, and the votes of the appropriation acts, e.g., the Appropriation Act No. 3, 1974, S.C. 1974–75–76, Sch., vote L5. The National Housing Act, R.S.C. 1970, c. N-10; 1974–75–76, chapters 38 and 82, has as its object the construction, repair, modernization, and improvement of houses, and it also authorizes loans for student housing.

47 Article 12. The promotion and preservation of health is one of the functions of the Minister of National Health and Welfare under the Department of National Health and Welfare Act, R.S.C. 1970, c. N-9, s. 5; c. 14 (2nd Supp. ), para. 5(g). The object of the Fitness and Amateur Sport Act, R.S.C. 1970, c. F-25, is to encourage, promote, and develop fitness and amateur sport in Canada. The protection and enhancement of the environment is the responsibility of the Minister of the Environment under the Department of the Environment Act, Government Organization Act, 1970, R.S.C. 1970, c. 14 (2nd Supp.), s. 5. Contributions to the provinces are authorized by the Health Resources Fund Act, R.S.C. 1970, c. H-4, towards planning, acquiring, or constructing a health training facility and by the Medical Care Act, R.S.C. 1970, c. M-8, in respect of services rendered under a provincial medical care insurance plan. The aim of the Food and Drugs Act, R.S.C. 1970, c. F-27, the Fish Inspection Act, R.S.C. 1970, c. F-12, and the Maple Products Industry Act, R.S.C. 1970, c. M-2, is the protection of the public from harmful substances.

48 Article 13. Education is within provincial legislative authority. The article prohibits interference “with the liberty of individuals and bodies to establish and direct educational institutions.“ Article 14 applies to colonial powers.

49 Article 15 protects the right to take part in cultural life; to enjoy the benefit of scientific progress and its application; and the author’s moral and material interests. The article also requires the state parties “to respect the freedom indispensable for scientific research and creative activity.” The Copyright Act, R.S.C. 1970, c. C–30, protects an author’s rights and so do the Revised Berne Convention of 1914, the Rome Copyright Convention, 1928, and the Universal Copyright Convention signed at Geneva September 6, 1953. The Patent Act, R.S.C. 1970, c. P–4, protects inventors, the Trade Marks Act, R.S.C. 1970, c. T-10, the user of a trade mark, and the Industrial Design Act, R.S.C. 1970, c. 1–8, the user of an industrial design. Grants for scientific research and development may be authorized under the Industrial Research and Development Incentives Act, R.S.C. 1970, c. 1-10, and for the study or research in design of the products of Canadian industry under the National Design Council Act, R.S.C. 1970, c. N–5. Among the functions of the Council established under the National Research Council Act, R.S.C. 1970, c. N–14, are all matters affecting scientific and industrial research in Canada.

50 Article 6. The right of the individual to life and not to be deprived thereof except by due process of law is recognized by the Canadian Bill of Rights: see infra note 75.

51 Article 7. Cruel and unusual punishment has been prohibited by the Bill of Rights (1688), and it is also prohibited by para. 2(a) of the Canadian Bill of Rights. The Covenant does not prohibit the death penalty, but the Criminal Code no longer provides for it. It has been held not to be cruel or unusual: Miller v. The Queen, [1976] 5 W.W.R. 711 (S.C.C.).

52 Article 8. Within England, the status of slavery was not recognized at common law: Somerset v. Stewart (1772), Lofft 1; 98 E.R. 499. In the colonies, including the territory that now forms Canada, slavery was abolished by 3 & 4 William IV, c. 73, s. 12, as of August 1, 1834. The contract for the sale of a slave would be illegal because immoral: Kaufman v. Gerson, [1904] 1 K.B. 591. To kidnap a person with intent to cause him, against his will, to be confined, sent out of Canada, or to hold him to service, is a crime punishable by life imprisonment: Criminal Code, s. 761, S.C. 1972, c. 13, s. 6, and s. 247.

53 Article 9. The liberty and security of the person is safeguarded by the Criminal Code: see note 52. Arbitrary arrests are prohibited by para. 2(a) of the Canadian Bill of Rights. Para. 29(2) (b) of the Criminal Code requires that anyone who is arrested be informed of the reason for his arrest. A peace officer is to take him before a justice of the peace within 24 hours or as soon as possible: Criminal Code, subsection 454(1), R.S.C. 1970, c. 2 (2nd Supp.), s. 5; 1974–75–76, c. 93, s. 46. In case of delay, s. 459 applies. The legality of detention may be tested by habeas corpus (Canadian Bill of Rights, subpara. 2(c) (iii) ), and a limitation of this right (Criminal Code, s. 459.1, R.S.C. 1970, c. 2 (2nd Supp.), s. 5; 1974–75–;76 c. 93, s. 56) was held inoperative in two British Columbia cases: Regina v. Mitchell, [1975] 5 W.W.R. 178 (C.A.) and Regina v. Amos, [1975] 5 W.W.R. 421. An unauthorized arrest accompanied by force or the threat of force is an assault (Perry v. Fried, infra note 140, but see the limitation provided for in the Canada Shipping Act, R.S.C. 1970, c. S-9, subsections 243(2) and 244(3)), and a police officer who wilfully misconducts himself in the execution of a process is guilty of an indictable offence: Criminal Code, para. 117(a).

54 Article 10. As to the requirement of treating prisoners with respect for the inherent dignity of the human person, see infra note 141 and text to notes 194 et seq. As to keeping juvenile prisoners separated from adults, see infra text to note 193.

55 Article 11. This matter is within provincial legislative jurisdiction. Cf., e.g., the Execution Act, R.S.B.C. 1960, c. 135, s. 5, that prohibits imprisonment for debts. Exceptions were repealed by the Attorney General Statutes Amendment Act, 1975, S.B.C. 1975, c. 4, s. 1. However, a debtor who wilfully contracted a debt without having at the time a reasonable expectation of being able to repay it may be committed to gaol: Small Claims Act, R.S.B.C. 1960, c. 359, subpara. 62(d) (iii).

56 Article 12. In the Final Act of Helsinki, supra note 23, at 115, the participating states expressed their intention “to facilitate wider travel for their citizens for personal or professional reasons.” Internal passports, exit and entry visas for her own nationals, and similar chicaneries do not exist in Canada. The issue of a passport, a matter within the royal prerogative, could conceivably be denied, and the exercise of this prerogative has recently been questioned in the U.K.: 370 House of Lords Report No. 69, May 6, 1976, at 697–719. No passport is required by a Canadian for leaving Canada and none for returning if other evidence of identity and Canadian citizenship is produced. The protection of its citizens against a foreign government is a Crown prerogative which the citizen has no legal means to compel. It should therefore be noted that, Joyce v. D.P.P., [1946] A.C. 347 notwithstanding, the possession of a passport does not give its holder a right, enforceable in a court of law, to the protection of the Crown against a foreign government or the espousal of a claim against such government. In contrast to the laws of democratic nations, a reference to one example of the decision of an administrative body should suffice. There are many others of the same kind. The District National Committee (Obvodní národní vybor) in one of the Prague districts, in a decision rendered in 1951, declared forfeited in favour of the Czechoslovak fiscus the property of an elderly Czech couple consisting in an interest in land and a banking account on the ground that the couple had emigrated to Canada, accepted Canadian citizenship, and “had thereby failed to demonstrate a positive relationship to the Republic… and had refrained from returning to the Motherland at a time when she needed all the strength and human reserves for the building of socialism....” (“Neprojevili tedy kladny pomer k republice, nevyuzili moznosti… vrátiti se do vlasti potrebné vsech sil a lidskych reserv k vystavbe socialismu…“).

57 Article 13. Exclusion and removal (deportation) of aliens is regulated by Part III of the Immigration Act, 1976, S.C. 1967–77, c. 52, appeals against removal by Part IV of the Act, superseding the Immigration Appeal Board Act, R.S.C. 1970, c. 1-3, and further appeals lie to the Federal Court of Appeal with leave of the Court. Extradition may be refused if the Minister of Justice determines that the offence for which extradition is requested is of a political character: Extradition Act, R.S.C. 1970, c. E-21, para. 22(a). As to the meaning of the expression “political character,” see e.g. Ching v. Governor of Pentonville Prison, [1973] A.C. 931 (H.L.(E.)). As to standing before the Appeal Board, see infra text to notes 188–90.

58 Article 14. The following rights are recognized by Canadian legislation and jurisprudence: the right of the individual to equality before the law (Canadian Bill of Rights, para. 1 (b) ); the right to a public trial (Criminal Code, s. 442, S.C. 1974–75–76, c. 93, s. 44, subject to the protection mentioned infra note 61); the right of young persons to be tried in a court established for the trial of juveniles (Juvenile Delinquents Act, R.S.C. 1970, c. J-3, with the exception mentioned in s. 3: see note 192 and accompanying text) without publicity (Criminal Code, sections 441 and 442); the right to be presumed innocent until convicted (Bill of Rights, para. 2(f), Criminal Code, para. 5(1)(a), subject to statutory burdens creating prima facie presumptions of guilt: The Queen v. Appleby, [1972] S.C.R. 303, 308, per Laskin, J.); the right of an accused to be tried in his presence and to defend himself in person or through counsel (Bill of Rights, para. 2(e), Criminal Code, s. 465, S.C. 1972, c. 13, s. 38, and sections 468, 735, and 737); the right to instruct counsel without delay (Bill of Rights, para. 2(e), Brownridge v. The Queen, [1972] S.C.R. 926); the right to an interpreter (Bill of Rights, para. 2(g), Criminal Code, s. 577, S.C. 1972, c. 13, s. 50, Regina v. Reale, [1973] 3 O.R. 905 (C.A.)); and the right of an accused to remain silent (Bill of Rights, para. 2(f), Regina v. Simon (1975), 22 C.C.C. 566 (Ont. C.A.)).

Protection against self-crimination (Bill of Rights, para. 2(d) ) is provided by the Canada Evidence Act, R.S.C. 1970, c. E-10, c. 5, s. 5, the Dominion Controverted Elections Act, R.S.C. 1970, c. C–28, s. 44, and the Canada Temperance Act, R.S.C. 1970, c. T–5, s. 107. However, a skilful prosecutor can circumvene this protection: infra text to note 180 et seq.

Appeals against conviction and sentence are regulated by the Criminal Code, section 748 et seq. and section 603, S.C. 1974–75–76, c. 105, section 13 et seq. (but see text to notes 194 and 195).

The Criminal Code protects against repeated trials and punishment for the same offence (subsections 535(1), (3), and (5), S.C. 1974–75–76, c. 105, s. 8, and sections 536-38, S.C. 1973–74. c. 38» s. 5; 1974-75-76, c. 105, s. 9), but a trial by a court of ordinary criminal jurisdiction of a person who has been tried by a court martial is permissible (National Defence Act, R.S.C. 1970, c. N-4, s. 61).

59 Article 15. The maxim nulla poena sine lege, expressed in the first paragraph of the article, is recognized by para. 2(f) of the Canadian Bill of Rights, im-plied by s. 27 of the Interpretation Act, R.S.C. 1970, c. 1-23, and given effect by subsection 5(1) of the Criminal Code. Cf. also the French Code pénal: “Article 4. Nulle contravention, nul délit, nul crime, ne peuvent être puni de peines qui n’étaient pas prononcées par la lois avant qu’ils fussent commis.” As to the second paragraph of Article 15, see infra text to note 200 et seq.

60 Article 16. The provision that “everyone shall have the right to recognition everywhere as a person before the law” is a corollary to the prohibition of slavery, as to which see supra note 52. See also para. 1 (a) of the Canadian Bill of Rights, infra note 75.

61 Article 17, infra note 167. Invasion of privacy is prohibited by the Criminal Code, Part IV.1 (sections 178.1–178.23), S.C. 1973–74, c. 50, s. 2; 1974–7576, c. 19, s. 1). The crime consists in intercepting a private communication without judicial authorization. Authorization will not be granted unless there are no other means of investigating an alleged offence likely to succeed and there is some urgency in the matter. An unlawfully obtained private communication may nevertheless be used in evidence if otherwise justice would not be done.

Defamatory libels are prohibited by section 261 et seq. of the Code, and the law of tort provides a civil remedy against defamation.

The justice holding a preliminary inquiry shall, at the accused’s request, prohibit the publication of the evidence in a newspaper or broadcast prior to the discharge of the accused or the end of his trial: Criminal Code, s. 467.

In a trial for rape, intercourse with a girl under fourteen years, or for indecent assault of a female, s. 142 of the Code, S.C. 1974–75–76, c. 93, s. 8, prohibits the defence to ask any questions as to the sexual conduct of the victim with a person other than the accused. However, where justice requires it, the Court may waive this rule. Under subsection 442(3), S.C. 1974–75–76, c. 93, s. 44, neither the identity nor the evidence of a rape or assault may be published, and the public may be excluded.

Under the Crown Liability Act, R.S.C. 1970, c. C–38, s. 72, the Crown is liable for all loss or damage caused by, and attributable to, the interception of a communication by a servant of the Crown in circumstances when it is reasonable for the originator to expect that it will not be intercepted.

Part IV of the Canadian Human Rights Act, S.C. 1976–77, c. 33 (section 49 et seq.), prohibits the use of any information concerning an individual without his consent for a purpose that is inconsistent with the use for which it was compiled.

62 Article 18 protects the freedom of thought, conscience, and religion. Limitations are permitted only in the interest of public safety, order, health, morals, or the fundamental rights and freedoms of others. The Canadian Bill of Rights recognizes the freedom of religion: para. 1(c). In the U.S.S.R. the conduct of atheistic propaganda is recognized as part of the freedom of conscience: Constitution, supra note 3, Article 52. The propagation of any faith is not mentioned.

63 Article 19. The freedom of expression is recognized by para. 1(d) of the Canadian Bill of Rights.

64 Article 20. In addition to the interdiction of war propaganda, the article requires prohibition of “any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility or violence....” The purpose of such advocacy is usually the testing, at home and abroad, whether the climate is ripe for engaging in warlike acts. The prohibition of war propaganda is well compatible with the duty to perform military service for the state to which allegiance is owed. For this duty, see, e.g., Calvin’s Case (1608), 7 Coke Reports ia, 4b; 77 E.R. 377, 382. More recently, it was held in Re Jensen (1976), 67 D.L.R. (3d) 514, 520–21 (Fed. C.A.), that it was one of the fundamental duties of a citizen “to come to the aid of [his] country in time of war and to help bring about the defeat of its enemies,” any religious scruples notwithstanding.

The Criminal Code, s. 281.2, R.S.C. 1970, c. 11 (1st Supp.), s. 1, prohibits hate propaganda.

65 Article 21 protects the right of peaceful assembly. The freedom of assembly and association is recognized by para. 1 (e) of the Canadian Bill of Rights.

66 Article 22 protects the right to freedom of association including the right to form and join trade unions. As to this right, see supra note 43.

67 Article 23 recognizes the family as “the natural and fundamental group unit of society… entitled to protection…”; it also recognizes the right of persons of marriageable age to marry and to found a family and the equal right of the spouses, and it requires the protection of children in case of the dissolution of the marriage. See infra note 178 and the accompanying text.

68 Article 24 requires the protection of children without discrimination. See infra text to note 164 et seq. The postulate that every child acquire a nationality is met by the provisions of the Citizenship Act, S.C. 1974–75–76, c. 108. It supersedes the Canadian Citizenship Act, R.S.C. 1970, c. C–19.

69 Article 25. The right to take part in the conduct of public affairs, to vote and be elected “at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the electors” is secured by the British North America Act, 1867 to 1975, the Canada Elections Act, R.S.C. 1970, c. 14 (1st Supp.), the Representation Act, 1974, S.C. 1974-75-76, c. 13, and by provincial and territorial legislation.

“Access, on general terms of equality to [the] public service” is secured by the Public Service Employment Act, R.S.C. 1970, c. P–32, which, however, does not prohibit discrimination on the ground of political or other opinion, social origin, birth, or other status.

70 Article 26: see infra text to note 82.

71 Article 27 protects ethnic, religious, and linguistic minorities. See infra note 72, text to notes 152 et seq., and 171 et seq.

72 Civil Covenant, Article 5(2). The corresponding Article 5(2) of the Economic Covenant is in similar terms. Part II of the Statute containing the Canadian Bill of Rights, R.S.C. 1970, Appendix III, refers also, in subsection 5 ( 1 ), to human rights and fundamental freedoms not enumerated in the Bill: “5. ( 1 ) Nothing in Part I shall be construed to abrogate or abridge any human right or fundamental freedom not enumerated therein [i.e., in the Bill] that may have existed in Canada at the commencement of this Act.” The Alberta Bill of Rights, S.A. 1972, c. 1, states: “3. (1) Nothing in this Act shall be construed to abrogate or abridge any human right or fundamental freedom not enumerated herein that may have existed in Alberta at the commencement of this Act....” The Ninth Amendment of the U.S. Constitution reads as follows: “Article IX. The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.“ In this connection, reference should also be made to the undefined rights and privileges mentioned in the Official Languages Act, R.S.C. 1970, c. O-2: “38. Nothing in this Act shall be construed as derogating from or diminishing in any way any legal or customary right or privilege acquired or enjoyed either before or after the 7th day of September 1969 with respect to any language that is not an official language.”

73 [1972] S.C.R. 889.

74 Criminal Code, s. 223, at that time a fairly recent enactment.

75 The relevant provisions of the Bill, supra note 72, are, in this connection, the following:

  1. 1.

    1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion, or sex, the following human rights and freedoms, namely

  2. (a)

    (a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;

  3. (b)

    (b) the right of the individual to equality before the law and the protection of the law....

Cf. Magna Carta (1215), 9 Henry 3; (1297), 25 Edw. 1, c. 29; (1354), 28 Edw. 3, c. 3: “Item, that no man of what estate or condition that he be, shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of laws.”

76 At 903.

77 Supra text preceding note 72.

78 At 902–3.

79 Cf. Article 38(1) (c) and (d) of the Statute of the International Court of Justice. As an example of a fundamental right the abrogation of which would be contrary to Article 5 ( 2 ), there might be suggested tentatively the right of an accused to a final and conclusive judgment of not guilty if so found by a jury verdict. A case in point is Morgentaler v. The Queen, [1976] S.C.R. 616, where the Supreme Court of Canada, in a 6 to 3 decision, confirmed a conviction, the result of a then authorized appeal against a jury verdict of not guilty. The then Minister of Justice opposed a change in the law (see, e.g., House of Commons Debates, July 9, 1975, at 7389), and even after he had to yield and the law had been changed so as to prevent appeals against a verdict of not guilty, he refused a new trial, and Dr. Morgentaler remained in prison until a newly appointed Minister of Justice ordered a new trial, when a second verdict of not guilty was returned.

80 Article 2 ( 2 ): “2. The State 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.”

81 Article 2(1): “1. Each State Party to the present Covenant undertakes to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, religion, political or other opinion, national or social origin, property, birth, or other status.”

82 Article 26.

83 Supra note 75.

84 [1972] F.C. 1405, affirmed [1976] 1 S.C.R. 376.

85 At 1414. This was based on the observation of Laskin, J., in Curr v. The Queen, supra note 73, at 896, who held that “federal legislation… is… offensive if there is discrimination by reason of race so as to deny equality before the law.”

86 Supra note 80 and the text preceding it.

87 Article 2(2), supra note 80.

88 Article 2(1), supra note 81, and Article 26, text preceding note 82. Article 2 ( 1 ) of the Universal Declaration of Human Rights, supra note 6, reads as follows: “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.”

89 An exception to the wide language of Article 26 appears to be contained in Articles 24(1) and 25. They enumerate the impermissible grounds of dis-crimination exhaustively. They read as follows:

Article 24

  1. 1.

    1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property, or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society, and the State....

Article 25

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions:

  1. (a)

    (a) To take part in the conduct of public affairs, directly and through freely chosen representatives;

  2. (b)

    (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

  3. (c)

    (c) To have access, on general terms of equality, to public service in his country.

90 Article 2(2), supra note 80.

91 Article 2(1), supra note 81.

92 La déclaration des droits de l’homme et du citoyen, supra note 3. The first sentence is repeated, almost verbatim, in the first sentence of the Universal Declaration: “All human beings are born free and equal in dignity and rights.”

93 Supra note 80.

94 Supra notes 81 and 89.

95 Supra note 75.

96 Under the Canadian Human Rights Act, supra note 61, s. 3, the impermissible grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, marital status, conviction for which a pardon has been granted and, in matters of employment, physical handicap. The provisions of the Criminal Code against genocide and hate propaganda (subsections 281.1(4), R.S.C. 1970, c. 11 (1st Supp.), s. 1) protect identifiable groups defined as “any section of the public distinguished by colour, race, religion, or ethnic origin.” Subsection 12(2) of the Public Service Employment Act, R.S.C. 1970, c. P–32, enumerates as impermissible grounds of discrimination sex, race, national origin, colour, marital status, and age.

97 Provincial and territorial anti-discrimination statutes prohibit discrimination on the grounds of race, religion (in Alberta: religious beliefs, in Newfound-land and the Yukon: religious creed, in the N.W.T. and Ontario: creed, in P.E.I, and Saskatchewan: religion and creed), colour, sex marital status (except in Nova Scotia; in Quebec: civil status), ancestry (except in Newfoundland, Nova Scotia, Prince Edward Island, and Quebec), age (except in Newfoundland, the Northwest Territories, Prince Edward Island, Quebec, Saskatchewan, and the Yukon), and place of origin (in Manitoba, Nova Scotia, Prince Edward Island, Quebec, and the Yukon: ethnic or national origin, and in New Brunswick: national origin). British Columbia adds, for certain purposes, political belief and conviction for a criminal offence or summary conviction charge; Manitoba adds source of income, and Newfoundland social origin. Nova Scotia adds, for certain purposes, physical handicap. Prince Edward Island adds political belief, and Quebec political convictions and social condition. The following are the statutes here referred to: the Individual Rights Protection Act, S.A. 1972, c. 2; 1973, c. 61; the Human Rights Code of British Columbia, S.B.C. 1973 (2nd Session), c. 119; 1974, cc. 87 and 114; the Human Rights Act, S.M. 1974, c. 65–Cap. H 175; the Human Rights Act (Human Rights Code), S.N.B. 1971, c. 8; 1973, c. 45; the Newfoundland Human Rights Code, R.S.N. 1970, c. 262; 1974, No. 114; the Fair Practices Ordinance, R.O.N.W.T. 1974, c. F–2; the Human Rights Act, S.N.S. 1969, c. 11; 1970, c. 85; 1970–71, c. 69; 1972, c. 65; the Ontario Human Rights Code, R.S.O. 1970, c. 318; 1971, c. 50; 1972, c. 119; 1974, c. 73; the Human Rights Code, S.P.E.I. 1975, c. 72; the Charter of Human Rights and Freedoms, S.Q. 1975, c. 6; The Saskatchewan Bill of Rights Act, R.S.S. 1965, c. 378; 1972, c. 104; 1974–75, c–44; and the Fair Practices Ordinance, R.O.Y.T. 1971, c. F-2; 1974 (2nd Session), c. 7. For an analysis of this legislation, see Canada, Department of Labour, Human Rights in Canada (Ottawa, 1976).

98 Inclusió unius est exclusió alterius et expressum facit cessare taciturn.

99 See, e.g., the Human Rights Code of British Columbia, supra note 97, that mentions conviction for a criminal offence or summary conviction charge as an impermissible ground of discrimination.

100 See note 97 for a list of provincial human rights statutes. See also the Canadian Human Rights Act, supra note 96, s. 3.

101 See supra text to note 72.

102 Starting with text to note 146.

103 Schwelb, “Civil and Political Rights…,” supra note 17, at 828, 835. Dr. Schwelb traces the history of the international measures of implementation of the Civil Covenant from 1943 onwards to the coming into force of the two Covenants in 1976.

104 Articles 19 and 21.

105 Article 16(1) and (2) (a).

106 Article 17(1).

107 Article 16(2)(b).

108 Article 18.

109 Article 19.

110 Article 20.

111 Article 21.

112 Article 22. Note the reference to progressive implementation. On this, see infra text to note 143 et seq.

113 Article 28.

114 Articles 29(1) and 30(4). The nomination procedure is contained in Article 30(1) to (4). Although members serve in their personal capacity, they have to be nominated for election by the government of the country whose nationals they are: Articles 28(3) and 29(2).

115 Article 32.

116 Article 33.

117 Article 34: see text to note 114.

118 Article 35.

119 Article 36.

120 Article 37.

121 Article 39.

122 Article 40.

123 Article 45 and Optional Protocol, Article 6.

124 Civil Covenant, Articles 41–44. For the history of these provisions and the procedure, see Schwelb, “Civil and Political Rights…,” supra note 17, at 844 et seq.

125 The reason for a document separate from the Covenant was the opposition of the U.S.S.R. and other states to the idea of an individual’s standing in inter-national proceedings. “The drafting of a separate Protocol made it possible to achieve the unanimous adoption of the Covenant and the adoption of the Protocol by a very great majority…”: Schwelb, “Civil and Political Rights…,” supra note 17, at 862.

126 Only the alleged victim has standing: ibid., 863.

127 Article ι. On the effect of this provision, see infra note 136.

128 Article 2 ( 1 ).

129 Exiled and refugee citizens and aliens who, after victimization, managed to escape, would be precluded from lodging a complaint.

130 Article 3.

131 Article 5(2).

132 Article 4.

133 Article 5(4).

134 Article 6 and Civil Covenant, Article 45.

135 The thought that those who make the law might also interpret it is not new. “When I use a word,” Humpty Dumpty said in a rather scornful tone, “it means just what I choose it to mean… neither more nor less.” “The question is,” said Alice, “whether you can make the words mean so different things.” “The question is,” said Humpty Dumpty, “which is to be master… that’s all.”

136 Schwelb, “Notes on the Early Legislative History of the Measures of Implementation of the Human Rights Covenants,” in Mélanges offerts à Polys Modinos (Paris, 1968), at 16. Among the first members of the Commission were Messrs. A. P. Mochan (U.S.S.R.), L. G. Koulishev (Bulgaria), B. Graefrath (G.D.R.), and Vladimir Hanga (Romania). As of September 1977 none of the mentioned countries has acceded to the Protocol, and this means that no national of these countries can petition the Human Rights Committee.

137 Economic Covenant, Article 28; Civil Covenant, Article 50.

138 Attorney General for Canada v. Attorney General for Ontario, [1937] A.C. 326. Prior to accession, a federal-provincial conference created a federal-provincial committee. Accession followed the assurance by the premier of each province that, as far as his province was concerned and in the light of then existing legislation, Canada was in a position to fulfil its obligations under the Covenants. After accession, two task forces were created whose principal purpose it is to examine the implications of accession.

139 See, e.g., Social Covenant, Article 13: “1. The State Parties to the present Covenant recognize the right of everyone to education…,” a matter within exclusive provincial legislative jurisdiction under s. 93 of the B.N.A. Act.

140 In Canada, as in all democratic countries, the courts are the guardians of fundamental rights and freedoms. The common law does not recognize the special status of the organ or fonctionnaire, and it holds the head of a government as much liable for a breach of the law as the least policeman: Roncarelli v. Duplessis, [1959] S.C.R. 121 (award of substantial damages against the premier of a province for arbitrarily attempting to divest a citizen of an incident of his civil status), and Perry v. Fried (1972), 32 D.L.R. (3d) 589 (N.S.) (award of punitive damages against a policeman who, on the false information of a waiter that a patron had refused to pay his bill, arrested the patron.

141 Among the legislative measures, reference may be made to S.C. 1972, c. 13, that repealed the provisions of the Criminal Code permitting a sentence of whipping, and the amendment to the Penitentiary Regulations, subsection 7(2) of P.C. 1972–2327 of September 27, 1972, 106 Gazette II, at 1791, 1792, that revoked the provision for corporal punishment for penitentiary inmates. Recommendations for the amelioration of the penitentiary system in Canada beyond legislation are contained in a Report to Parliament by the Subcommittee on the Penitentiary System in Canada of the Standing Committee on Justice and Legal Affairs, Mark MacGuigan, Chairman, Second Session of the Thirtieth Parliament, 1976–77 (Ottawa: Minister of Supply and Service, 1977). See also infra text to notes 197–98.

142 Article 2 (1).

143 Text to note 30.

144 The preamble to the B.N.A. Act says that Canada’s constitution is to be “similar in principle to that of the United Kingdom.” This refers to the institution of the constitutional monarchy, freely elected legislative bodies of limited duration, ministerial responsibility, a free press, free speech, trials before independent judges, and so on. However, the Act “shows the marks of its age”: Scott, Frank R., The Canadian Constitution and Human Rights 26 (Toronto, 1959).Google Scholar

145 Supra note 41 et seq.

146 Note 93 et seq. and the accompanying text.

147 R.S.C. 1970, c. P–32, s. 12(a); 1974–75–76) c–16, s. 1.

148 See supra notes 80 and 81.

149 [1970] S.C.R. 282.

150 To be drunk off an Indian reserve: R.S.C. 1970, c. 1–6, para. 96(b).

151 Supra note 72.

152 [1974] S.C.R. 1349.

153 para, 12(1)(b).

154 International Covenant on the Elimination of All Forms of Racial Discrimination, supra note 16, Article 1(4). An example of permissible inequality is contained in subsection 11 ( 1 ) of An Act to Amend the National Parks Act, S.C. 1974, c. 11. It permits, within a reserve for a National Park for Canada, “the exercise .. . by the people of native origin of the Yukon Territory or Northwest Territories of traditional hunting, fishing, and trapping activities…,” activities prohibited to the general population.

155 Ibid., Article 2(2).

156 B.N.A. Act, head 91 (24).

157 [1974] S.C.R. 1349, at 1383.

158 At 1389.

159 Supra note 80.

160 “3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions....”

161 Supra note 81.

162 “I. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property, or birth, the right to such measures of protection as are required by his status as minor, on the part of his family, society, and the State.”

163 Text to note 82.

164 Co. Litt. 3b and 123a; Kidd v. Harris (1901), 3 O.L.R. 60.

165 Subsection 48(13).

166 Subsection 12(a).

167 Civil Covenant:

Article 17

  1. 1.

    1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home, or correspondence, nor to unlawful attacks on his honour and reputation.

  2. 2.

    2. Everyone has the right to the protection of the law against such interference or attacks.

168 Subsection 745 ( 1 ).

169 For example, sections 143 (rape), 152, 153, and 154 (seduction), 248 and 249 (abduction), 256 (procuring a feigned marriage), or paragraph 423(1) (c) (conspiracy to induce a person, by fraudulent means, to commit adultery or fornication).

170 Criminal Code, subsection 281.1(4), R.S.C. 1970, c. 11 (1st Supp.), s. 1 by argumentum a contrario.

171 R.S.C. 1970, c. L-13.

172 See, in this connection, Robertson and Rosettani v. The Queen, [1963] S.C.R. 651, the criticism of this decision by Bora Laskin, “Freedom of Religion and the Lord’s Day Act,” (1964) 42 Can. Bar Rev. 147, and Lev. 23:3.

173 R.S.C. 1970, c. N–22, para. 13(r).

174 R.S.C. 1970, c. Y-а, para. 16(r).

175 R.S.C. 1970, c 1–6, s. 122.

176 Supra note 42.

177 Economie Covenant, Article 7(c).

178 Whitfield v. Canadian Marconi Co. (1968), 68 D.L.R. (2d) 766; rehearing denied, [1968] S.C.R. 960.

179 Economic Covenant, Article 10: “…1. The widest possible protection and assistance should be accorded to the family… particularly for its establishment.…” Civil Covenant, Article 23(2): “The right of men and women of marriageable age to marry and found a family shall be recognized.“ Civil Covenant, Article 23 (2): “The right of men and women of marriageable age to marry and found a family shall be recognized.” See also Article 2(1), supra note 81, and Article 26, text to note 82.

189 Supra note 58.

181 Batary v. Attorney General of Saskatchewan, [1965] S.C.R. 465.

182 Faber v. The Queen, [1976] 2 S.C.R. 9: writ of prohibition against the coroner to prevent further questioning refused.

183 Marshall v. The Queen, [1961] S.C.R. 123, per Cartwright, J., at 131.

184 Ibid., 129.

185 Article 14(3) (g).

186 Curr v. The Queen, supra note 73.

187 Schmerber v. California (1966), 384 U.S. 757, 761.

188 Article 13.

189 S.C. 1976–77, c. 52.

190 Hardayal v. Minister of Manpower and Immigration, [1976] 2 F.C. 746, 753.

191 Article 14: “4. In the case of juvenile persons, the [criminal] procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.” Article 10: “2.… (b) Accused juvenile persons shall be separated from adults....”

192 Permitted by the Juvenile Delinquents Act, R.S.C. 1970, c. J-3, s. 9.

193 Subsection 10(1) of the Prison and Reformatories Act, S.C. 1976–77, c. 53, s. 45.

194 Martineau v. Matsqui Institution, [1976] 2 F.C. 198 (confirmed by S.C.C.). In his dissenting judgment, Laskin, C.J.C., held that “denial of justice by an administrative tribunal empowered to affect the right of persons subject to its authority is regarded as reversible error of law and, indeed, as going to jurisdiction.”

195 Article 14: “5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.”

196 Mitchell v. The Queen, [1976] 2 S.C.R. 570: application for habeas corpus with certiorari in aid dismissed. Article 14 of the Civil Covenant requires “a fair and public hearing by a competent, independent, and impartial tribunal,” and so does the Canadian Bill of Rights, para. 2(f).

197 Article 10( 1 ); Canadian Bill of Rights, para. 2(b).

198 McCann v. The Queen, [1976] 1 F.C. 570; see also supra note 141. Under Article 2(3) (a) of the Civil Covenant, a state party is under a duty “to ensure that any person whose rights and freedoms as herein recognized are violated, shall have an effective remedy....” Article 7 requires that “no one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.…”

199 Civil Covenant, Article 14(6).

200 See supra note 59.

201 Supra note 5.

202 Justice Robert A. Jackson in his report to President Truman: 23 Encyclopaedia Britannica 206 ( 1971 ).

203 See, in particular, the statutes enumerated in notes 41–72 and 97.

204 Op. cit. supra note 144, at 29–30.

205 See, e.g., the Lavell case, supra note 152.

206 See the text to note 180 et seq.

207 Economic Covenant, Article 8(1) (d).

208 Civil Covenant, Article 17(1).

209 Prof. Gerald Gall at a seminar of the Canadian Human Rights Foundation held in Ottawa, March 4, 1977; Report on the Seminar, at 3.

210 Supra note 97.

211 Supra note 152.

212 Supra note 97.

213 Parliament may delegate powers to a body created by provincial law: Prince Edward Island Marketing Board v. H. B. Willis, Inc., [1952] 2 S.C.R. 392. The delegation of powers by a province to a body created by parliament is probably also permitted under constitutional law.

214 United Nations Rhodesia Regulations, P.C. 1968-2339, of December 20, 1968, 103 Gazette II, at 58.

215 See, e.g., Solzhenitsyn, , The Gulag Archipelago (New York, 1973)Google Scholar or Dolgun, , Alexander Dolgun’s Story (New York, 1975).Google Scholar See also the decision of one of the Prague District National Committees, supra note 56. See further Charter 77, a manifesto by Czechoslovak dissident patriots, English translation by Frastacky, R. V., Chairman of the Board of the Council of Free Czechoslovakia, The Globe and Mail, February 1, 1977:Google Scholar

… The instrument of restriction, or of complete suppression, of a whole number of civil rights, is the system of subordination of all institutions and organizations in the State to political directives by the apparatuses of the ruling party and the decisions of highly influential individuals.

The Constitution of the Czechoslovak Republic and the rest of the laws and legal norms regulate neither contents, form, nor the creation and application of such decisions; they are frequently a matter of oral adoption, unknown and beyond the control of the citizens....

218 Constitution of the U.S.S.R., supra note 33:

Article 34. Citizens of the U.S.S.R. shall be equal before the law, irrespective of origin… nationality or race… attitude to religion… or other particulars....

Article 36. Soviet citizens of different nationalities and races shall have equal rights.. . .

Article 50.. .. Citizens of the U.S.S.R. shall be guaranteed freedom of speech [and] assembly....

217 E.g., in the Helsinki Final Act, supra note 23.

218 Civil Covenant, Article 41. And see supra note 136.