Inadmissibility decision; Substantive issues: effective remedy; Procedural issues: exhaustion of domestic remedies; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
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ANNEX XV
Decision of the Human Rights Committee under the Optional Protocol
to the International Covenant on Civil and Political Rights -
twenty-fourth session
concerning
Communication No. 113/1981
Submitted by:
C. F• .!.,t al.
Alleged victims:
The authors
State party concerned:
Canada
Date of communication:
10 December 1981
The Human Rights Committee, established under article 28 of the International
Covenant on Civil and Political Rights,
Meeting on 12 April 1985,
Setting aside an earlier decision on admissibility, now adopts the following:
Decision on admissibility
1.
Th~ authors of the communication (initial letter of 10 December 1981 and
further letter of 3 June 1983) are C.-F., M. L. and J.-L. L., three Canadian
citizens detained at the time of submission in different federal penitentiaries in
the province of Quebec, canada, alleging a breach by canada of article 25 (b),_ and
article 2, paragraphs 1 and 3 (b), of the International
~ovenant on Civil and
Political
Rights, relating to the general provincial elections held in Quebec on
13 April 1981.
The object of the communication is to vindicate their right to vote
in the Quebec provincial general elections held on 13 April 1981 and to ensure that
prisoners can exercise their right to vote in any elections which may be held in
the future, whether federal or provincial.
2.
The facts of the case were set out in detail in the Committee's decision of
2S July 1983 by w'hich it declared the communication to be admissible.
In the
following, only a summary account will be given.
3.1
On 19 August 1976, the International Covenant on Civil and Political Rights and
the Optional Protocol thereto entered into force for Canada.
In order to bring the
Quebec Election Act into conformity with the provisions of article 25 of the
Covenant, several amendments to the Act were adopted by the National Assembly of
Quebec on 13 December 1979, establishing, inter'alia, the right of every inmate to
vote in general elections in Quebec and adding special provisions relating to voting
procedures for inmates (arts. 51-64 of the Election Act, 1979).
Article 64 of this
Act provided in particular that ••• "to allow inmates to exercise their right to
vote, the Director General of Elections may make any agreement he considers
expedient with the warden of any house of detention established under an Act of
Parliament of canada or of the Legislature".
In view of the upcoming general
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provincial elections in Quebec on 13 April 1981, the Director General of Elections
of Quebec, on 11 March 1981, concluded an agreement pursuant to article 64 of the
Election Act with representatives of the wardens of the provincial detention centres
of Quebec concerning the voting of the detainees of provincial detention centres.
3.2
To enable the voting of detainees of federal penitentiaries in Quebec at
general elections, an agreement similar to the one concluded between the wardens of
provincial detention centres and the Director General of Elections of Quebec was
required between the Solicitor General of Canada, as head of the federal
penitentiary system, and the
app~opriate provincial authorities, in the specific
case the Director of Elections of Quebec.
The Director General of Elections of
Quebec therefore contacted the Solicitor General's Office suggesting the conclusion
of an administrative agreement concerning the voting of inmates of federal
penitentiaries in the province of Quebec.
In a letter dated 4 March 1981, the
Solicitor General of Canada informed the Director General of Elections of Quebec of
his decision not to conclude, for the time being, such an administrative agreement
which would permit detainees in federal penitentiaries to vote in general
provincial elections.
He argued that that matter still required further study.
3.3
Prompted by this negative decision of the Solicitor General of Canada, the
authors, on 26 March 1981, filed a request for a temporary injunction ("requete en
injunction provisoire interlocutoire et pour une audience urgente"), on their own
behalf and as authorized representatives of cO-detainees, with the Federal Court of
Canada, division of first instance, asserting that under the Election Act of Quebec
they were fully entitled to vote in the forthcoming general election in Quebec.
They claimed that the decision of the Solicitor General of Canada not to permit
inmates of federal penitentiaries to vote in provincial general elections was
discriminatory because it prevented them, as inmates of federal penitentiaries
in Quebec, from casting their vote in the forthcoming general elections on
13 April 1981, while
i~nates of provincial detention centres were allowed to do
so.
In substantiation of their claim they referred to domestic laws in canada
("Code civil" of Quebec (art. 18) and "Charte des droits et libertes de la
personne" (art. 22», as well as to international instruments which canada had
ratified, specifically the International Covenant on Civil and Political Rights,
which provide for the enjoyment of the right to vote without discrimination.
They
requested, inter alia, that their right to vote be recognized and the Solicitor
General of canada be advised t9 stop obstructing the exercise of the applicants'
right to vote, seeking prompt action by the court to ensure that the administrative
arrangements for their full participation. in the general elections of 13 April 1981
could be made in time.
3.5
The authors
indi~ate that they did not appeal this decision before the Federal
Court of Appeal.
They claim that in the circumstances of their specific case a
recourse would have proven totally useless and futile, because the deadline for
3.4
On 30 March 1981, the authors' request for an injunction was rejected by the
federal court of first
instanc~, for reasons of "form" and of "substance il •
In his
opinion on the rejection of the request the judge stated, inter alia, that the
"right to vote" of detainees in federal penitentiaries was not contested in the
decision of the Solicitor General which concerned the "exercise" of this right
during detention, a condition which normally affected the civil rights of a person
in certain respects.
He also pointed out that the Election Act of Quebec, "dans sa
forme et dans sans son esprit", acknowledged the necess i ty of an. agr,eement
("entente") in order to allow inmates the exercise of the right to ',ote, such
agreement could not be forced upon the Federal Government by provincial authorities.
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effective participation in the general elections in Quebec on 13 April 1981 expired
the very day of the court of first instance's decision.
4.1
By a note dated 20 August 1982, the State party objected to the admissibility
of the communication on the grounds that the authors had failed to exhaust domestic
remedies as required by article 5, paragraph 2 (b), of the Optional Protocoli and
that the communication was without object or moot and therefore inadmissible under
article 1 of the
O~tional Protocol.
4.2
As regards the non-exhaustion of domestic remedies the State party argues that
the authors, by seeking an interlocutory decision against the Solicitor General's
negative reply, had chosen an inappropriate remedy and that instead they should
have applied for a declaratory judgement as to their right to vote.
The State
party claims that such a Cleclaration would have been an "effective and sufficient"
remedy according to international jurisprudence and canadian legal practice.
The
State party admits that it could be argued that there was not sufficient time to
get a declaratory judgement before the Quebec provincial elections of 1981 were
held and that therefore a declaration was not an effective remedy in regard to the
present communication.
The State party, however, argues that the real object of
the communication is to ·assert the right of inmates in federal penitentiaries in
relation to future elections (see para. 1 above) and therefore concludes that it
was not "too late" for the authors to seek a declaration of their rights in the
domestic courts to achieve this object of their claim.
Consequently domestic
remedies had not been exhausted.
4.3
The State party also argues that the authors, after the entry into force of
the Canadian Charter of Rights and Freedoms on 17 April 1982, should have sought
the remedy granted in section 24 (1) of the Charter whenever one of its substantive
provisior$ is alleged to have been violated.
Since the Charter recognizes the
right to vote (sect. 3), .the authors would have obtained full redress in respect of
any future elections.
5.1
On 7 June 1983, the authors of the communication forwarded their comments in
reply to the State party's submission under rule 91 of the provisional rules of
procedure.
They refute the State party's contention that the communication is
inadmissibl~on grounds of non-exhaustion of domestic remedies and mootness of the
object of the communication.
5.2
As regards the first the authors maintain that the period available was not
long enough to allow them to have recourse to the remedy of a declaratory judgement
before the elections of 13 April 1981.
They submit that, after the elections, in
the state of the law as it was before the adoption of section 3 of the Constitution
Act of 1982, an action for a declaratory judgement did not constitute an effective
and sufficient domestic remedy ensuring respect for their right to vote.
They
refer in this connection to canadian jurisprudence in the case of John Ernest
McCann et al. v. The Queen and Dragan Cernetic, head of a penitentiary institution
in British Columbia,
(1976)
IC.F.570, concerning inmates' claims that they had been
subjected to cruel and unusual punishment or treatment in a special unit of the
prison.
They argue that a declaratory judgement delivered by Judge Heald at first
instance of the Federal Court of Canada on 30 December 1975 in favour of the
inmates! claims did not relieve the prison situation, nor did it affect the
treatment of prisoners in other Canadian institutions in the future.
The authors
conclude that this case shows that a declaratory judgement would be pointless in
their case which is similar because execution of such judgement would depend
entirely on the decisions of the Solicitor General.
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5.3
Referring to the State party's argument that, since 17 April 1982 a remedy is
available to the authors under sections 3 and
24 a/ of the Canadian Charter of
Rights and Freedoms, the authors point out that,;hile "section 3 of the Charter
recognizes the right of every canadian citizen to vote, it is to be noted that the
remedy provided for in section 24 is available to the victims of a violation for
the
pur~~se of obtaining redress".
They stress "that this remedy would be
available to them only if they were victims in the future of a further violation of
their right to vote", adding that
~the purpose of the present communication is to
prevent such an occurrence, and there does not at present exist a domestic remedy
that is effective and sufficient from the point of view of paragraph 2 (b) of
article 5 of the Optional Protocol".
6.1
On 25 July 1983, the Committee declared the communication to be admissible.
At the same time, however, it drew the attention of the State party concerned to
rule 93 (4) of the Committee's provisional rules of procedure according to which a
decision that a communication is admissible may be reviewed in the light of any
pertinent information received at a later stage.
6.2
With regard to article 5, paragraph 2 (b), of the Optional Protoccl the
Committee observed that, although the authors might not have been able to obtain a
declaratory judgement before the elections of 13 April 1981, a subsequent judgement
could nevertheless in principle have been an effective remedy in the meaning
contemplated by article 2, paragraph 3, of the Covenant and article 5,
paragraph 2 (b}, of the Optional Protocol.
The Covenant provides that a remedy
shall be granted whenever a violation of one of the rights guaranteed by it has
occurredJ consequently, it does not generally prescribe preventive protection, but
confines itself to requiring effective redress ex post facto.
However, the
Committee was of the view that the Canadian Government had not shown that an action
for a declaratory judgement would have constituted an effective remedy either with
regard to the elections of 13 April 1981 or with regard to any future elections.
On the basis of the Government's submission of 20 August 1982, it was not clear
whether an action seeking to have declared unlawful the refusal of the competent
prison
a~thorities to let the alleged victims participate in the elections of
13 April 1981 would have been admissible.
On the other hand, taking into account
the authors' submission received on 7 June 1983, the Committee expressed doubt as
to whether, and to what extent, executive authorities in Canada are bound to give
effect to a declaratory
judg~ment in similar circumstances arising in the future.
Since it is incumbent on the "State party concerned to prove the effectiveness of
remedies the non-exhaustion of which it claims, the Committee concluded that
article 5, paragraph 2 (b), of the Optional Protocol did not preclude the
admissibility of the communication.
7.1
By a note dated 17 February 1984, the State party invoked rule 93 (4) of the
Committee's provisional
rule~ of procedure, which provides that "the Committee may
review its decision that a communication is admissible in the light of any
explanation or statements submitted by the State party pursuant to this rule".
In
doing so the State party specifically relied on that part of the Committee's
decision on admissibility
indic~ting the possibility of review.
7.2
Referring to the Committee's conclusion that the State party had not
established that a declaratory judgement was an available domestic remedy in the
circumstances of the case, the State party now submits, inter alia,
"that an action seeking to have declared unlawful the refusal of the competent
prison authorities to let the alleged victims participate in the election of
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not
in
13 April 1981 would have been admissible in the Federal Court, Trial
Division.
In particular, Canada contends that the action would not have
been dismissed on any of the following preliminary grounds:
"(i)
that a declaration is not available against the Crown;
"(ii)
that it would pertain to
ev~nts concluded in the past, in regard to
which no practical remedy or consequential relief was any longer
available; or
"(iii)
that it did not disclose a reasonable cause of action.
"In regard to (i), it is well established in canadian law
tha~ a declaration
may be granted against the Crown (The King v. Bradley;
[1941] S.C.R. 270).
The statutory basis for granting such a declaration is section 18 of the
Federal Court Act, R.S.C. 1970 2nd Supp. c. 10, which reads as follows:
'18.
The Trial Division has exclusive original jurisdiction
(a)
to issue an injunction, writ of certiorari, writ of mandamus,
or writ of quo warranto, or grant declaratory relief, against any federal
board, commission or other tribunal; and
(b)
to
h~ar and determine any application or other proceeding for
relief in the nature of relief contemplated by paragraph (a), ificluding
any proceeding brought against the Attorney General of canada to obtain
relief against a federal board, commission or other tribunal.'
"Indeed, in Mccann v. The Queen, the case cited by the authors of this
communication, a declaration was granted against the Crown.
"In regard to (ii), canada notes that the fact that the qeclaration would
pertain to events concluded in the past, in regard to which no practical
remedy or consequential relief was any longer available, would not render an
action for a declaration inadmissible.
Again, the McCann case provides
authority for this point.
The plaintiffs in that case were no longer being
held in solitary confinement units at the time that the court considered their
case.
Nevertheless, the declaration was not refused on the ground that it
would be of no practical utility.
Rather, Heald, J. noted that it would
provide practical guidance for the future as to the acceptable nature of
solitary confinement units.
"Similarly, in the present case, although it is too late to provide the
authors of the communication with the opportunity to vote in the 1981 Quebec
election, a
declaratio~ that the Solicitor General had acted i-llegally would
certainly give him practical guidance as to the course he should take in
regard to future Quebec elections.
"canada also notes that in Solosky v.
Th~ Queen, [1980],1 S.C.R. 821, the
Supreme Court of canada indicated at 830 that so long as a 'real issue' is
involved, and particularly if it is an 'important' one, the courts should
dismiss applications for declarations on the ground that they are lacking
practical effect and are of a hypothetical or academic nature.
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"In regard to (iii), the authors of the communication have submitted that
'after the elections, in the state of the law as it was before the adoption of
section 3 of the Constitution Act of 1982, an action for a declaratory
judgement did not
consti~ute an effective and sufficient domestic remedy
ensuring respect for their right to vote'.
It is submitted on behalf of
Canada that, although it is not possible to predict the outcome of an action
for a declaration in the circumstances of this case, there would appear to be
sufficient legal basis for the action that it would not be struck out by a
court pursuant to Rule 419 (1) of the Federal Court Rules.
"As the Supreme Court of Canada has indicated in Attorney-General of Canada v.
Inuit Tapirisat of Canada et al.,
[1980j
2 S.C.R. 735 at 740:
'On a motion to strike [pursuant to Rule 419 (1)] a court should, of
course, dismiss the action or strike out any claim made ty the plaintiff
only in plain and obvious cases and where the COurt is satisfied that
"the case is beyond doubt"
'"
7.3
The State party further submits
"that executive authorities are sufficiently bound to give effect to
declaratory judgements in similar circumstances arising in the future for a
declaration to constitute an effective and sufficient available domestic
remedy in the circumstances of this case.
"The legal status of a declaration in Canada is as follows.
A declaration is
a statement of the law. made by a judicial tribunal with authority to 'determine
the nature of such lawl it forms a binding precedent and f
moreover, renders
any issue determined by it res judicata (Canadian Warehousing Association v.
The Queen [1969] S.C.R. 176).
"Although a declaration does not pronounce any direct sanction against a
defendant if he or she fails to respect it, it is nevertheless a legal remedy
of practical effectiveness in Canada.
Indeed, one of the principal criteria
taken into account by the courts in determining whether they have jurisdictidn
to grant a declaration is whether it would 'Serve some practical use •••
In
particular, as pointed
~ut by Canada in its previous submissions on the
admissibility of this cOmmunication, it is an established practice in Canada
that the Crown will treat a declaration as equivalent to a judgement of
mandatory effect.
As noted in The King v. Bradley,
[1941] S.C.R.
270 at 276,
'The subject's right to relief is declared by the COurt in full assurance that
the Crown will give effect to the righl: so declared'.
.
11Indeed, it is therefore' in regard to the Crown that declarations are regarded
as especially useful and effective remedies.
Thus, in Gruen Watch Co. v. A.G.
of Canada,
[1950] D.R. 429, McRuer, C.J.H.C. said the following at 450:
'This peculiar right of recourse to the Courts (the declaratory order) is
a valuable safeguard for the subject against any arbi.trary attempt to
exercise administrative power not authorized by statute, and judges ought
not to be reluctant to exercise the discretion in them where a
declaration will afford some protection to the subject against the
invasion of his rights by unlawful administrative action. '"
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7.4
In response to the allegation of the authors that the declaration granted in
the McCann case was not given practical effect by the Crown, and that therefore a
declaration is not an effective remedy in canada, at least in so far as it pertains
to the Solicitor General, Canada makes the following observations:
"(1) In the Mccann case, Heald, J. declined to grant a declaration that the
Penitentiary Service Regulation authorizing the imposition of solitary
confinement was invalid pursuant to the canadian Bill of Rights as
authorizing cruel and unusual punishment.
Rather, he founj that the
particular conditions in the specific solitary confinement units in which
the plaintiffs had been held were contrary to the Canadian Bill of
Rights.
Therefore, the fact that there are still solitary confinement
units of a different character in other federal penitentiaries does not
indicate that the Crown does not respect
th~ rights set forth in
declarations.
Indeed, it
nc~es that the reason the correction unit in
which the plaintiffs had been held was closed for four months (as
indicated in the submission of the authors of the communication) was to
correct conditions so as to ensure that they complied with the
declaration granted in the HcCann case.
"(ii) There were many factors that Heald, J. took into account in
dete~mining
that the conditions in the solitary confinement units in which the
plaintiffs had been held constituted cruel and unusual punishment,
including such matters as the size of the cells, their
ir~dequate
ventilation, the insufficient time available to inmates for outdoor
exercise, and more guards being involved in 'skin frisks' than was
necessary (at 601-04).
These are all factors which involve a matter of
degree, and it is therefore inevitable that controversy will arise as to
whether subsequent conditions in these units changed sufficiently for
there to
hav~ been compliance with the declaration.
This complicating
factor would not arise in regard to the issue of whether there had been
compliance with a declaration that prison inmates had been improperly
denied the means of exercising their right to vote in a Quebec general
election.
"If a declaration were granted in this case, it would pertain to events in the
past in regard to which there is no consequential relief or practical remedy
presently available.
However, the power of a declaration does not lie in any
sanction it pronounces against the defendant, but rather, in the circumstances
of this case, in the respect the Crown necessarily has for binding statements
of the law made by the jUdiciary.
It therefore by no means follows that such
a declaration would be devoid of practical effect.
Indeed, as indicated
above, the declaration in the Hccann case pertained to past events, but it was
nevertheless granted by the court because of the practical guidance it would
provide for conduct in the future ••••
Similarly; in the Solosky case it was
assumed by the Supreme Court of Canada that if a declaration relating to
future events were granted against the Crown, it would be of practical
effect.
Certainly in the present case Canada can assure the Human Rights
Committee that if a final
declarato~y j~dgement were granted that the
Solicitor General had acted illegally in not taking the steps necessary to
permit inmates in federal penitentiaries to vote in the Quebec general
election of 13 April 1981, such steps would be taken by him or her in regard
to future Quebec general elections as a necessary consequence of the
declaratory judgement."
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7.5
The State party "reiterates its claim that the present communication is
inadmissible because of the failure of its authors to exhaust all available
domestic remedies, and requests the Human Rights Committee to reconsider its
decision on the admissibility of this communication.
There are in fact two
remedies available to the authors that have not been exhausted by them:
"(i) The authors failed to seek a declaration that their rights had been
violated in the circumstances of the Quebec election of 13 April 1981.
An action for such a declaration would be admissible in the Canadian
courts, and, if granted, would have a practical effect on the future
course of conduct of Canadian authorities.
"(ii) The authors failed to seek a declaration to the effect that in upcoming
Quebec elections it would be contrary to section 3 of the Canadian
Charter of Rights and Freedoms for the Solicitor General not to take the
steps necessary to enable them to vote in such elections.
Section 24 of
the Charter has been so interpreted as to extend to prospective
infringements or denials of Charter rights as well as to the past.
It is
therefore submitted that an action for such a declaration was available
to the authors, and moreover would have constituted an acceptable ex post
facto remedy for their complaint."
8.1
The State
pa~ty also submits extensive explanations and statements on the
substance of the matter, and argues that
"it has not violated its obligations pursuant to article 2 (1)
and 2 (3)
(b)
of the International Covenant on Civil and Political Rights to respect the
rights set forth in article 25
(b) of the Covenant.
In particular, Canada
submits that the refusal of the Solicitor General to take steps to enable
inmates in federal penitentiaries to vote in the Quebec general election of
13 April 1981, did not constitute an unreasonable restriction upon their
rights as set forth in article 25 (b) for the following reasons:
"(i) Because of the substantial administrative problems involved in
enabling inmates in federal penitentiaries to vote in general
elections, it was not unreasonable to deprive them of the
opportunity to vote in the Quebec election held on 13 April 1981.
"(ii) It is not unreasonable to withhold the right to vote in general
elections from people who have engaged .in criminal misconduct
sufficiently serious to justify their detention in a federal
penitentiary."
9.
The deadline for the presentation of the authors' comments on the State
party's submission under article 4, paragraph 2, expired on 10 July 1984, during
the Committee's twenty-second session.
Because of the complexity of the
subject-matter, the Committee deferred review of the admissibility of the case
until its twenty-third session and, again, until its twenty-fourth session.
No
comments have been received from the authors.
10.1
Pursuant to rule 93, paragraph 4, of its provisional rules of procedure the
Human Rights Committee has reviewed its decision on admissibility of 25 July 1983.
On the basis of the additional information provided by the Canadian Government, the
Committee concludes that the authors could have obtained redress for the violation
complained of by seeking a declaratory judgement.
The Committee has stressed in
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other cases that remedies the availability of which is not reasonably evident
cannot be invoked by the Government to the detriment of the author in proceedings
under the Optional Protocol.
According to the detailed explanations contained in
the submission of 17 February 1984, however, the legal position appears to be
sufficiently clear in that the specific remedy of a declaratory jUdgement was
available and, if granted, would have been an effective remedy against the
authorities concerned.
In drawing this conclusion, the Committee also takes note
of the fact that the authors were represented by legal counsel.
10.2
Given the availability of a declaratory judgement as shown by the State party
concerned., the Committee does not feel it necessary to deal with the question as to
whether a domestic remedy such as the one provided for in section 24
(1) of the
Canadian Charter of Rights and Freedoms, which was established after the submission
of a communication to the Human Rights Committee, needs to be resorted to in ((:der
to
~omp1y with the requirements set forth in article 5, paragraph 2 (b), of the
Optional Protocol.
11.
In the light of the a)Qve
considerati"n~, the Committee ':h'lds that it is
precluded under article 5, paragraph 2 (b), of the Optional Fr"toco1 from
considering the merits. of the case and decides:
1.
2.
The decision of 25 July 1983 is set aside.
The communication is inadmissible.
Notes
~
Section
2~
(1) provides for remedies when a provision of the Charter is
violated:
"Anynne whose rights or freedoms, as guaranteeCi by this Charter,
h~ve
'-~en
inf~inged or denied may apply to a court ef competent jurisdiction to
obtain such remedy as the court considers appropriate and
just in the
circumstances."
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