Assembly for Human Rights: Montreal; Outlook in Three Typical Democracie

We present a report from Montreal the human rights assembly in this series we are recalling highlights of a recent international gathering which brought together some 80 delegates and observers all experts in the field of human rights to determine the major work ahead in the protection and enhancement of personal liberty everywhere. The assembly took place in late March in the civil aviation building in Montreal Quebec. It was underwritten by the Johnson Foundation of Racine Wisconsin and other philanthropic organizations. Today we're going to pinpoint contrasting human rights challenges in three widely separated democracies. Each with their own unique outlook on a subject. Well here delegates today from Canada Sweden and Jamaica. First a report from Canada. Here is a brief address from the floor of the assembly. By Maxwell Cohen dean of the law faculty at McGill University in Montreal. I wonder if I might concretely address myself very briefly to some characteristic Canadian problems of compliance which might

give a comparative point of focus to our discussions. I start with the very simple statement that by general standards we would be regarded for the most part as a developed country both in economic and general social terms. And yet it is surprising. Perhaps that's an overstatement. I may be more modest and economic terms. I start with the assumption there far that that many of the problems we've heard about the last couple of days which put a particular burden with respect to human rights in the general sense and their implementation and even their characterization are not the kind of burdens we face in this country and therefore almost from as a working premise one would make the assumption that most of the compliance problems would on the whole have already a pretty constructive record in this country. This is not so. I might indicate how difficult it is once you make the assumption of certain standards how difficult it is

even in a reasonably developed country to have adequate compliance. First of all I think it is fair to say that the federal state faces peculiar problems of divided jurisdiction. The division of jurisdiction of federal state therefore becomes almost a built in instrument of delay. The mere fact that you cannot decide where jurisdiction lives has both international and domestic implications internationally it means that you approach international documents in secure us to where the competence to implement is a domestically it means that being in security where the complement the competence to implement is you then a debate about an indefinitely postponed action. And so I would be surprised if this were not endemic to all federal states that the divided jurisdiction problem tends to have a peculiarly direct relevance to the speed with which implementation of human rights

programs takes place or does not take place. May I go on to say that the the this country would probably take for granted that the main problems of human rights protections in the classical civil liberties police protection fair trial due process areas are looked after. Taking that for granted upon closer analysis seems to be a mistake even for us. There are large areas in the administration of criminal justice in Canada which leaves much to be desired. There are large areas administration of civil justice which is much to be desired Let me illustrate it. We have no general principle in this country apart from rather crude procedures in the matter of legal aid which assures counsel of the right to counsel. The result is that the entire process of finding oneself in the criminal courts is dependent upon. So far as the satisfactions are concerned in obtaining counsel is dependent upon the accent of the occasion does a man have means as they have access to counsel. Will he in fact be able to obtain counsel is there

a right to counsel before the critical moment when he's charged so he can have a counsel interposed between himself and police interrogation. Indeed it is to the great credit of the United States that these issues have been thrashed out at the highest level of policy in a series of decisions of the Supreme Court of the US but they have not been thrashed out in this country except in a relatively superficial way. There are many other areas of Criminal Justice which are inadequately attended to in this country. We in perpetuating the old bail system make it possible for a person who is able to put up bail and therefore to be released those who can't put up bail cannot be released. But it also has encouraged a semi unsatisfactory often corrupt bail system. Even in a fairly advanced country such as our own and the policing of the bail system is very difficult indeed and there are large numbers of students of a problem now in the US and Canada who are convinced that the bail system

is retrogressive that it ought to gall and that want to be replaced by a high degree of individual responsibility leaving the the accused to go out on his own recognizance. The experiments show that there is very little abuse of this once it is tried. We have done very little study of this in Canada. One major study being done now in Toronto suggests that the New York study which was a pioneer is one we very very well might follow and get rid of the old fashioned concept of bail. We are. We are very backward in Canada in the nature of our sentencing procedures. We have no national standards for sentencing whatever we do not educate our judges in some coherent way. Judges in Quebec at the same level of jurisdiction will give far different sentences the judges amount of judges now Berger says Catch you in for the same run of offense. The climate of opinion the general associate ology the religious convictions of the district tend to have a profound effect on the sentencing

process. And we do not seem to evolve to any satisfactory national policy toward the education of our courts in developing a concept of common sentencing standards. We are moving toward it from a scholarly point of view but not from the administrative point of view. We have difficulties with the problems of police violence in this country. Not that we have more police violence than perhaps most Western countries have but we have enough of it now and again to make the average citizen wonder about his contact with the police. Personally I believe the the art of policeman ship to be one of the most difficult of human arts in modern society and the policeman one of the most under-rated persons of his doing his job well. Personally I also believe that the recurrence of degrees of violence in urban North America in recent years has probably complicated the problems of the police. Nevertheless I think a modern approach to the training of the police and a modern approach the relation

of the police to public opinion and to the public individually is very desirable and we have a long way to go even in a country such as our own. To achieve that you kind of balance between the public and the police in the area of administration of civil justice. The fundamental fact is that our courts on the whole are clogged that courts are sometimes between 1 and 5 years behind in but a particular class of cases and that no uniform legal aid system operates in Canada to assure persons with limited means of having adequate legal services for a country as well developed as Canada to face that kind of problem seems to me to be due to raise very grave questions as to what one should expect from less developed countries. We have in addition no coherent approach to the appointment of judges. Our system on the whole probably gets good and fair minded judges to the bench. But it is essentially a political system based upon the reliance on the working bar to become the source of our judges. I personally

believe this is serve the Anglo Canadian community and the Franco Canadian community well in the past 150 200 years of our existence. I also personally believe that there is a great deficiency here. Can we really say in Canada that after so long an experienced administration of civil and criminal justice that our best trained people are on the bench. Probably the answer is a middle yes answer. But on the whole our bench is good with a strong tradition but not nearly as strong and as well chosen as a very well might be. What about our approach to racial problems in this country and compliance the development of procedures there is not to realize that we have some very fundamental racial problems in Canada. We think of ourselves as a as a as a mano color country as a country of whites. Thus not having some of the classical dilemmas which now face and challenge so many parts of the modern world yet we have racial problems here of great profundity which we had not even begun to resolve. The indigenous

population of Canada the Indians and the Eskimos are rising in number started in the Indians. We have no generation of Indian leaders who are challenging the very basis of the relationship that relationship has been awkward been awkward for a very long time. And indeed the present status of Indians of Canada speaks volumes for the failure of Canadian Indian policy. I say this as a Canadian but the reason why I should concede that I think there's a national feeling now that somehow or other we have failed the Indian community. Part of that failure may be their own fault. Part of that failure may be indigenous to the nature of their own culture which prevents them from joining the mainstream of the North American a social organization and a competitive society. Be that as it may the Indian community of Canada numbering about three hundred thousand souls today is an underprivileged community with mostly with inadequate housing inadequate education and on the whole inadequate relationship with the total machinery of government wherever they live. They are wards of the federal government

and under conditions of wardship even there. Often their elementary human rights sometimes seem to be in jeopardy and I suspect in the next 10 or 15 years radical changes must take place in the relationship between the people of Canada the majority and the Indian population. We have as a most fundamental problem the very future of this country. We are now in the midst of the most profound political crisis Canada perhaps has faced the possible division of this country which rests upon two great founding cultures French speaking English speaking a possible fracture of that of a country. It is not beyond the consideration of many thoughtful people here the movement toward a bicultural bilingual Canada may rescue us from that very unsatisfactory destiny which some are predicting and which some are trying to encourage. Basic questions. Do you honestly bitch we are in search of

solutions. Measures of protection of human life implementation will the 30 nations the percentage here and if the old indulged in view of the position it won't count is I think that's the May be we wouldn't get down to a question of finding people posing. Well I'm sorry I was going to show how bad we are and then show how good we are and if you stop you before coming through. Yes I was never the good part. What I was going to say we I'll just finish the attack upon my own my own country and move to suggesting some of the constructive side. I think slowly there are four areas where we have found techniques for dealing with the matter. One is I think we have. Almost wholly adopted the notion that there must be steady and progressive Laurie farm at the civil and criminal level.

The establishment of law reform commissions in several the provinces of the development of a Canadian corrections committee studying the criminal side seems to be now accepted as a an ongoing permanent continuing part of Canadian scene. Secondly I think Canada is committed to the ombudsman or varieties of the Ombudsman technique and three provinces now have adopted it. And I have no doubt that more and possibly the federal government will be doing so soon. Thirdly I think the whole program of legal aid is now in generally accepted by public opinion and we will find in each province in the next few years virtually a kind of medical legal aid insurance type program covering all persons whether they are persons of means are not. And this way we will I think overcome some of the deficiencies to which I referred before. Fourthly I think there is a general belief that the private sector in Canada has a great role to pay. And here

the trade union movement other voluntary agencies are now moving with a degree of rapidity which we have never seen before and it is very likely that the mobilization of public opinion in these areas may be able to press on government measures which we have been waiting for for a very long time. That was Maxwell Cohen dean of the law faculty at McGill University in Montreal Quebec. We thought we learned more from Professor Cohen. So following his talk on the floor of the Assembly we interviewed him at the assembly site particularly highlighting the growing role of the Ombudsman around the world. We began by asking Dean Cohen to define the term. The Ombudsman is a Scandinavian creation going back to the beginning of the 19th century in which a very senior official government becomes the place to which any citizen can appeal for the remedy of a grievance where the

ordinary process of the law do not provide for such a remedy the ordinary court system and that particular technique worked so well in the Scandinavian countries that it has taken hold of the imaginations of many other countries. Now mind you there are cognate system almost amounting to that in other countries in the world before they began to play around with the Ombudsman idea for example. In France the call say d'etat provided for a very elaborate structure of administrative appeals against the behavior of civil servants our government where that which behavior gave rise to grievances but it itself did not cover every possible variant of injustice and therefore there was perhaps even room in a place like France with a very old familiarity with the Colace a day to add the administrative process to have something approximating best I think the French are considering something like it. In Canada we have three

provinces now two that of taken on the bones of an idea in Alberta and New Brunswick and Quebec is now debating a bill now before the Quebec legislature on this and they and then I To Kingdom also has of course gone in for a council which allows for an appeal against a governmental or administrative act for which there is no other collateral remedy. The concept here is very simple. Modern government is elaborate. Complex touches the lives of the citizen in so many ways and no legal system can provide for all the contingencies. And what you therefore need a sum over all mechanism a kind of catch all for the grievances in a society which the ordinary processes the ministration of criminal civil justice do not give you a good answer for. And the Scandinavian ombudsman does just that indeed.

In Sweden I'm not so sure the situation in Denmark and Norway but in Sweden at least the Ombudsman has powers not all only over administrative decisions. Looking into the consequences where they touch the individual. But he also may investigate the behavior of the courts and he can take a look at the judges. The quality of a judge's work. He could even recommend punishment of a judge for failure to carry out his functions effectively even a High Court judge which goes far beyond anything that we have in mind in the Anglo Canadian world for the Ombudsman where our theory of the independence of the judge would not allow for this kind of administrative supervision of his activity. Secondly the Ombudsman in Scandinavia also certainly in Sweden has power though I think it's now divided to originate power to look into military matters. And I think now ever either in Denmark or Sweden not sure there is an ombudsman for the four complaints within

the military structure as there is an ombudsman for complaints of this sort of structure. The the debate in Canada at the federal level made a distinction between the Ombudsman on the civil side and on a possible need for a similar instrument on the monetary side as well as perhaps a third instrument that is complaints within the structure of the public service itself for those civil servants who find that the remedial provisions to deal with their complaints weren't adequate on the existing appellant structure in Canada is there much resistance to the adoption of an ombudsman on a national scale. Well at the national level the debate began about four years ago and really hasn't got very far. The late minister of justice the honorable gay Favro while he was alive was pressing it. But in fairness to the preoccupations of the federal government the Ombudsman idea is not being pressed but I must say that the there is a mood for

substantial constitutional change in Canada and it very well may be at the federal level than among the constitutional changes maybe the introduction of the ombudsman as well. We are hearing the term cropping up more and more in the United States also. But I would assume that. The adoption of such a plan is some time off as well. In the United States you already have more than we have in Canada in that the process of judicial review of administrative and legislative action and the ability of the private citizen to come in the courts and complain against the minister of action has a far broader base than it is under our administrative and constitutional law system. And at the same time the impact of a complex modern techno state technocratic state on the individual is such that there must be thousands of unsatisfied complaints and grievances the individual has against county government city government state government and Federal government officials. And you probably need at various levels. Indeed

it's an oversimplification to talk about the Elmwood Jamin as a single person. It's an idea you're probably going to need in the United States ombudsman at the city level like county level the state level and the federal level heavily decentralized to make the system work at all. Well how would this work being call on in the case of the individual citizen who feels that his interests can't be represented by his going to the district attorney of his area. Well I would say that the the. Natural setting for a case of this guy is where you either exhausted all of your remedies under the law or you have no remedy and you simply feel there is an injustice done to you. Oh for example take take a situation where the sum by some regrettable oversight the statute of limitations has run on and actually might have had against the state

for damage done to your person your property. Now it seems to me that if this was a purely accidental fact that you the time lapsed barred your action there's an equitable remedy here that ought to be present. Using the word equitable in the broadest not not not in the strict legal sense. Where would you go to allow of course you go nowhere what an Ombudsman might interfere might intervene on your behalf. And recommand that measures to to to to compensate you would his services be free. All we ask. I'm assuming that the whole mechanism as a as a as a a free access to someone who looks for a remedial solution to a problem for which the existing legal procedures do not exist. You would rate the institution of the Ombudsman fairly high on the list of priorities. At a conference such as this on human rights I would say that the Ombudsman or something like it for a both a

developing society and a developed society in particular for a highly developed society. It has a very high priority. You simply cannot expect the formal processes of litigation the formal processes of the courts to satisfy all the day to day claims of the individual. Because society can't foresee them all can't forsee them all procedurally and can't foresee them all substantially. You go and you were given the register during your talk earlier today at the Assembly for human rights on the particular problems of Canada. There is one that you didn't mention that you become very aware of when you're here in Montreal Quebec. That is the continuing squabble between the French speaking and English speaking elements of Canada. Would this problem come under the category of human rights in your estimation. Oh very much so what. I was stopped in my parish and by the Chairman before I got out of this because it wisely recognized that I needed I have are for it as well he interrupted me to be very blunt about it.

The question you are asking is an extremely good illustration of the proper and improper use of the concept of human rights. This conference illustrates the tendency for the human rights concept to be made so broadly inclusive of all social and political claims that its original essentially well-defined scope is being lost in the broader dialectical used to which is being put now in Canada at the moment we have a crisis in the relations of English to French speaking Canadians largely inside Quebec but park outside of Quebec and a crisis in the federal system because the majority of French live in Quebec and go back because it is their homeland provinces at work. When vegetarians claim that their language rights in the other provinces aren't protected and they are among the two founding cultures of Canada they're claiming a language right which can then be described either juridically or

politically as a human right which is being denied them freedom of language is the term you don't hear very often is it not so much freedom of language but but the right to be able to survive as French Canadians in all parts of Canada and the use of public funds to give them schools of their own language and the right to use our language in the main official organs of the community in the legislature in the courts. And since there are a half a million French Canadians in Eastern Ontario and sense 45 percent 40 percent of the population here Brunswick our French Canadian. You really need a kind of bilingual theory and practice and not to give a French-Canadian those right just to deny him what he regards as a human right because it's a language right. Well if by some chance Quebec should go its own separate way that wouldn't help the French minorities in other parts of Canada. Well that's part of the present dialectic. What or would it not the answer is of course at the extreme separatists in Quebec have written off the French minorities outside the SE they'll be absorbed anyway. And they go farther and say what we

have a hostage group of a hundred of a million in this beat and get it at the bank and we'll make treaties for their protection with the rest of Canada. Well of course this is a dreadful prospect we're all facing most of it in my opinion vastly exaggerated by those who are pessimistic. I am an optimist I don't think of a Canadian crisis but it will reach the kind of proportions implicit in this conversation. But nevertheless you're quite right to say that part of the debate the English-French debate has within it the characteristics of the human rights debate taking place in many parts of the world today and language rights of fight of which one can see brilliantly for example today and Belgium are a legitimate human right the denial of which can give rise to very profound cleavages all in a very brief waiting call and what would be your own solution for this problem. Well we are coming to it. The most important single. Psychological and legal development of recent years in Canada is the

last constitutional conference on February the 5th to the 8th in Ottawa. The all the provinces of Canada and the federal government already were approaching a consensus on the protection of language rights from coast to coast. That legal and political develop and psychological development may save Canada. Would this sort of arrangement cost a lot more money would it put the budget of Canada Well you know all in all this. The social costs far for some of the less affluent provinces will be pretty substantial. But they are by no means a social cost doesn't begin to match the psychological and political gains we can afford it. The French speaking people in Quebec apparently don't feel that they're getting enough of a return from the national government. Do you agree with that. You mean of economics not in money yet all of that of course is nonsense the the debate over over economic power is a very sophisticated one and is really no part of this discussion. But so far as there is a

reallocation of taxing power not so much taxing power but taxing revenues. And so far as Quebec gets a share from the total national pot that is collected federally. Apart from its own taxation there is a good. Amount of evidence that could back gets a reasonable share from the National Treasury for those regional purposes for which it has exclusive legislative jurisdiction. Whether whether Quebec is getting less than it should whether there are things it's being deprived of is another question I've been trying to say that on balance Quebec has not done badly the federal treasury. So in some action you would not predict that we will someday have a separate although I don't know about oh no we're going to have a united Canada living in a kind of gloriously tense coexistence. Well is this a real genuine issue Dean Cohen or is this

one of the great danger is this trumped up by a politician not very genuine. Right it is a real sense on the part of the French French good French Canadians are coming to a new mood a new stage in international development as as as a group. And they're trying to find the psychological the political. And the and the economic framework that seems to suit their survival of their development best. The majority of French Canadians want to exist. They want to co-exist with English speaking Canada and in the and in harmony as a minority a very small minority that wants wants a separate state. And the task of statesmanship both English and French speaking as Jews is to find the new methods which will satisfy French-Canadian aspirations but continue to have a strong federal capital. Does General de Gaulle play very much of a role in the as he plays up in the fires an important psychological role to the some extent an indirect political role. And I would hope a decreasing political role. Well thank you very much

for this briefing on some of Canada's human rights problems. We've been speaking with Dean Maxwell Cohen of the law faculty at McGill University here in Montreal.