CCPR/C/69/D/936/2000

Communication No. 936/2000, Gillan v. Canada

(Decision adopted on 17 July 2000, sixty-ninth session)*

Submitted by:

Mr. Terry Gillan (represented by Mr. Vincent

Th. Calderhead, legal counsel)

Alleged victim:

The author

State party:

Canada

Date of the communication:

9 December 1999

The Human Rights Committee, established under article 28 of the International Covenant

on Civil and Political Rights,

Meeting on 17 July 2000,

Adopts the following:

Decision on admissibility

1.

The author of the communication is Mr. Terry Gillan, a Canadian citizen, born

on 18 November 1980. He claims to be a victim of a violation by Canada of article 14 read

together with articles 2 and 26 of the Covenant. He is represented by Mr. Vincent Thomas

Calderhead, legal counsel in Halifax.

The facts as submitted

2.1

On 22 June 1995, the police arrested the author on an unrelated matter and upon

searching him, discovered six unopened bottles of beer in various parts of his clothing.

Subsequently, he was charged and tried in the youth court for illegal possession of liquor,

contrary to section 78(2) of the Liquor Control Act of Nova Scotia.i The evidence led before the

* The following members of the Committee participated in the examination of the present

communication: Mr. Nisuke Ando, Mr. P.N. Bhagwati, Ms. Christine Chanet, Lord Colville,

Ms. Elizabeth Evatt, Mr. Louis Henkin, Mr. Eckart Klein, Mr. David Kretzmer,

Mr. Rajsoomer Lallah, Ms. Cecilia Medina Quiroga, Mr. Martin Scheinin, Mr. Hipólito Solari

Yrigoyen, Mr. Roman Wieruszewski, and Mr. Abdallah Zakhia.

court was not challenged by the defence. The defence challenged, however, the relevant

legislative framework within which the prosecution was conducted, which violates the accused’s

right to be presumed innocent.ii The Youth Court judge rejected the arguments made by the

defence, holding that in light of the evidence before the Court, he need not rely on the

evidentiary provisions contained in the impugned legislation, but could convict the author

without relying on those sections.

2.2

On 22 January 1998, the Court of Appeal dismissed the author’s appeal. It ruled that

sections 128 and 130(1) were not relied on by the trial judge and need not have been relied on by

him. On 13 August 1998, the Supreme Court of Canada denied leave to appeal. With this, it is

submitted that all available domestic remedies have been exhausted.

The complaint

3.

Counsel claims that the evidentiary provisions in the Liquor Control Act of Nova Scotia

are in violation of article 14(2) of the Covenant. He states that thousands of Nova Scotians are

charged each year with illegal possession of liquor under a flawed legislative scheme. Counsel

submits that most people charged with offences under the Liquor Control Act are members of

disadvantaged groups in Canadian society.

Issues and proceedings before the Committee

4.1

Before considering any claim contained in a communication, the Human Rights

Committee must, in accordance with rule 87 of its rules of procedure, decide whether or not it is

admissible under the Optional Protocol to the Covenant.

4.2

Counsel bases his communication on the allegation that sections 128 and 130(1) of the

Liquor Control Act of Nova Scotia violate the presumption of innocence, and thus article 14(2)

of the Covenant. The Committee notes from the information before it, that the author in was

convicted on the basis that his guilt had been proven beyond any reasonable doubt. In the

present case, the courts did not rely on the sections of the Liquor Control Act that counsel seeks

to attack. The Committee concludes therefore that the communication is inadmissible under

article 1 of the Optional Protocol, since the author cannot claim to be a victim of the alleged

violation.

5.

The Human Rights Committee decides:

(a)

that the communication is inadmissible under article 1 of the Optional Protocol;

(b)

that this decision shall be communicated to the author and his counsel and, for

information, to the State party.

[Adopted in English, French and Spanish, the English text being the original version.

Subsequently issued into Arabic, Chinese and Russian as part of the present report.]

Notes

i Section 78(2) reads: “Except as authorized by the Act or the regulations, no liquor shall be

manufactured, transported, kept or had by any person.” Section 89(1) of the Act prohibits

possession of liquor by any person under the age of nineteen. It is not disputed that the author

was under age at the time of the offence.

ii Counsel refers to sections 128 and 130(1) of the Liquor Control Act, which read:

“128. If, on the prosecution of any person charged with committing an offence against

this Act, in selling or keeping for sale or giving or keeping or having or purchasing or

receiving of liquor, prima facie proof is given that the person had in his possession or

charge or control any liquor in respect of or concerning which he is being prosecuted,

then, unless the person proves that he did not commit the offence with which he is so

charged, he may be convicted of the offence.”

“130(1) The burden of proving the right to have or keep or sell or give or purchase or

consume liquor shall be on the person accused of improperly or unlawfully having or

keeping or selling or giving or purchasing or consuming the liquor, notwithstanding that

the prosecution has given any evidence whatsoever in addition to the prima facie proof

referred to in Section 128”.