Louise Arbour: Welcome Home

Last month, former Supreme Court Justice Louise Arbour announced that she will not seek a second term in her current role as the United Nations High Commissioner for Human Rights. Her four year term comes to a close on June 30th of this year. A few weeks ago, she reflected on her post-Supreme Court career in an interview with CBC’s Carol Off, which can be heard in full here.

Background

Louise Arbour has led a distinguished legal career. She was a law clerk at the Supreme Court for Justice Louise-Phillipe Pigeon from 1971 to 1972. She joined the faculty at Osgoode Hall Law School in 1974, where she worked until she was appointed to the Supreme Court of Ontario (High Court of Justice) in 1987. Soon after, in 1990, she was promoted to the Ontario Court of Appeal.

In 1995, as President of a Commission of Inquiry, she was given the task of investigating allegations of prisoner abuse in the Prison for Women in Kingston, Ontario. The following year, she moved to the international stage when the UN Security Council gave her the job of Chief Prosecutor for the International Criminal Tribunals for the former Yugoslavia and for Rwanda.

Prime Minister Jean Chretien appointed Ms. Arbour to sit on the Supreme Court in 1999. While on the SCC, she wrote 68 judgments, most of which focused on criminal law and procedure. However, for myself, her most notable judgment came in her dissenting reasons in Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429.

Gosselin v. Quebec was a challenge to Quebec’s social assistance scheme, which required persons on social assistance under the age of 30 to participate in education or work experience programs in order to receive the same level of assistance as those over thirty years old. In Justice Arbour’s dissent, she wrote that section 7 of the Charter imposes a positive obligation on the state to offer basic protection for the life, liberty, and security of its citizens. Specifically, she said,

I would allow this appeal on the basis of the appellant’s s. 7 Charter claim. In doing so, I conclude that the s. 7 rights to “life, liberty and security of the person” include a positive dimension. Few would dispute that an advanced modern welfare state like Canada has a positive moral obligation to protect the life, liberty and security of its citizens. There is considerably less agreement, however, as to whether this positive moral obligation translates into a legal one. Some will argue that there are interpretive barriers to the conclusion that s. 7 imposes a positive obligation on the state to offer such basic protection.

In my view these barriers are all less real and substantial than one might assume. This Court has never ruled, nor does the language of the Charter itself require, that we must reject any positive claim against the state — as in this case — for the most basic positive protection of life and security. This Court has consistently chosen instead to leave open the possibility of finding certain positive rights to the basic means of subsistence within s. 7. In my view, far from resisting this conclusion, the language and structure of the Charter — and of s. 7 in particular — actually compel it.

While these comments were made in dissent, her interpretation of section 7 was not completely discounted by the court and remains relevant today. Justice Arbour’s position was supported in full by Justice L’Heureux Dube and, writing for the majority, Chief Justice McLachlin left the issue open in saying,

With due respect for the views of my colleague Arbour J., I do not believe that there is sufficient evidence in this case to support the proposed interpretation of s. 7. I leave open the possibility that a positive obligation to sustain life, liberty, or security of the person may be made out in special circumstances. However, this is not such a case.

LeBel, in his dissent, agreed with the Chief Justice, saying:

I would note that I agree with the part of the reasons of the Chief Justice in which she writes that it is not appropriate, at this point, to rule out the possibility that s. 7 might be invoked in circumstances unrelated to the justice system. In the case of s. 7, the process of jurisprudential development is not complete.

In the end, one judge apposed her view (Justice Bastarache), two supported it (L’Heureux Dube and Arbour, herself), and six left the issue for another day (McLachlin, Gonthier, Iacobucci, Major and Binnie, and LeBel). As a result, whether or not section 7 imposes a positive obligation on the state to offer basic protection for the life, liberty, and security of its citizens remains an open issue. Her dissent offers hope – held by those such as myself – that her interpretation of section 7 is eventually adopted.

UN High Commissioner for Human Rights

Justice Arbour retired from the Supreme Court on June 30th, 2004 to fill her appointment as the UN High Commissioner for Human Rights. There, she was given the task of promoting and protecting the human rights stipulated in the Universal Declaration of Human Rights of 1948 and treaties such as the International Covenant of Economic, Social and Cultural rights, the International Covenant on Civil and Poltical Rights, and others.

She entered this role with the same concern for the protection of socio-economic rights that were evident in her dissenting reasons in Gosselin, as demonstrated in her 2005 LaFontaine Baldwin Lecture entitled “Freedom from Want“. In that lecture, she pointed to the artificial division which has been created between political and civil rights on one hand and economic, social and cultural rights on the other. This division, according to High Commissioner Arbour, is a fiction that must be overcome to ensure a progression in human rights law and policy. As she says, “whatever the resource constraints, there is a core minimum international legal obligation to secure a floor of rights and services beneath which people should never be allowed to fall.”

However, in her recent interview with CBC’s Carol Off, High Commissioner Arbour’s reflections suggested that her work at the UN remained focused on promoting the most basic human rights for individuals around the world.

Specifically, she mentioned the situation in Darfur, which has not been a success for anybody. At one point of her interview she says,

Without sounding superficial about it, if I took every briefing note I had on Darfur-related issues from the time I arrived in my office on the 1st of July 2004 to today and took the date off the top of the briefing note and shuffled them, I couldn’t put them back in the right order. It’s more of the same all the time… We’re right back where we were, I think, in 2003…

That being said, she did say that some progress has been made in Darfur, insofar as her office has been able to secure a human rights presence on the ground. This has led to improved reporting on a collection of human rights violations, specifically sexual violence and default of the government to put in place mechanisms of accountability. Pointing to the the limited power of her office in the enforcement of human rights, she said “I think, within our sphere of work, we’ve done what was doable.”

It was not only the developing world that High Commissioner Arbour targeted in her time at the UN. She also took aim at the potentially regressing state of human rights in the United States as a result of the War on Terrorism. She stated that:

[The United States was] appearing to try to deprive itself of one of its most important branches of governance for human rights protection, which is judicial review. A lot of the efforts in setting up Guantanamo and using foreign territories to conduct investigations, interrogation, detention, all that appear to have been done for the deliberate purpose of avoiding judicial scrutiny. And I believe that in a democracy – any democracy – it is critical for human rights protection that the executive and the legislative branch work hand in hand with the authority of the courts.

While she admittedly received a lot of criticism from the United States for comments of this nature, she also said that if she was not equally critical of countries such as the United States she would lose credibility when making suggestions in other areas of the world. Nonetheless, she said:

I think in human rights work, it is invidious and totally unhelpful to compare one country to another… To me, the real question for each country is: Is this country today, progressing, stagnating, or regressing in the protection of human rights. That is the question.

Silence from Canada

Perhaps the stain on High Commissioner Arbour’s departure from the UN is the lack of response from the Canadian Government. Stephen Harper has yet to release a statement commenting on High Commissioner Arbour’s work. It has been reported that he issued direct instructions not to offer any praise to High Commissioner Arbour. The Canadian diplomat who was present when she announced that she would not be seeking a second term barely acknowledged her presence, releasing only a disinterested statement that “Canada is and will continue to be a strong supporter of [the Human Rights Council] mandate and your office’s work for the promotion and protection of human rights.”

There have been suggestions that High Commissioner Arbour was pressured by the Canadian government to leave her post because of her criticism of the United States; however, in her interview with the CBC, she denied that there is any truth to such rumours. Nonetheless, the fact that the Harper Government has not acknowledged, praised, and celebrated her for her commitment to the promotion and protection of international human rights is disgraceful and embarrassing. She deserves far more than silence.

Conclusion

When commenting on why she did not seek a second term as the UN High Commissioner for Human Rights she expressed simply, “I really want to go home.” To that I say, welcome back.