"There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things."

~ Niccolo Machiavelli, historian and writer

Thursday, March 11, 2010

Great Good News

Update: CACL Press Release ~ Canada Ratifies Historic UN Treaty ...

Apparently, it's official!

As of today, Canada has ratified the United Nations’ Convention on the Rights of Persons with Disabilities (CRPD).

Making Canada the 82nd country to "make this international commitment to protecting and advancing the human rights of persons with disabilities".

Which is great good news.

Why "good" and not "great"?

First, don't get me wrong, I really do believe this is good news. A good step forward. Something we have been waiting for for quite a while.

It's just that I have a sense from some recent conversations with different members of the disability community that there may be a general misunderstanding out there as to the actual effect that our ratification of the Convention will have - a belief that it will be more useful, more valuable than it might actually prove.

I am looking at this, of course, from a legal viewpoint.

And although Canada's ratification of the CRPD may well give us stronger moral and political grounds to question and demand more from our various levels of government, I'm not so sure that it will make much a difference legally.

I've written a little bit on how this works before.**
The Convention is not binding on any country that has not ratified it. Further, the Convention will not take effect or ‘enter into force’ (for any country who has signed it) until 30 days after twenty countries have ratified it.

- - - -

Canada will not be under any obligation to implement the Convention (make sure that its laws are not in violation of the Convention) until two events occur:
  1. The Canadian government ratifies the Convention; and

  2. Nineteen other countries also ratify the Convention and thus, bring it "into force".
In addition, it's important to realize that even at that point, although the federal government will be obligated to bring its legislation in line with the Convention, this does not bind the provincial governments. Each provincial government is free to make its own decision in that regard. And, unfortunately, many of the laws that affect the daily lives of people with disabilities are provincial laws.
Although in a federal state such as Canada, the fact that our federal government has ratified the Convention (along with 20 other countries) means that the federal government now has an obligation to bring its laws in line with the Convention, you might note that the news release makes no mention of any of the provinces ratifying the Convention.

I'm not suggesting that won't happen, eventually, but it doesn't appear to have happened yet. And that is of critical importance because, as noted above, many (actually probably most) of the laws that affect the daily lives of people with disabilities are provincial laws.

Don't believe me? Check this out.

And that, essentially, is what with the UN Convention on the Rights of the Child.
Canada has ratified the Convention but has not fully implemented the Convention in Canadian domestic laws. Youth criminal laws in Canada underwent major changes resulting in the Youth Criminal Justice Act (YCJA) which went into effect on 1 April 2003. In 1989, the Canadian House of Commons voted unanimously to pass a non-binding resolution to end child poverty by the year 2000. Between 1989 and 2008, the child poverty rates rose to a peak of nearly 25% in 1996, before falling to virtually the same rate of 15.8% in 2008.[14]
So that's the first thing to recognize. As much as this is a good solid step forward, our work ain't done yet.

The second problem is sort of an ancillary of the first.

Although, unless and until Nova Scotia (for example) also ratifies the Convention, the Province will be under no legal obligation to bring its laws in line with it, lawyers can (and no doubt will) try to argue that the existing legislation, already on the books, should be interpreted by the courts in such a way as not be in violation of the Convention.

That gets tried a lot with international conventions to which Canada is a signatory. And while it's always worth a shot, in my personal experience, I have yet to see it yield a stellar result.

Which, taken all together, leads to current state of pessimism is why I consider the federal government's ratification of the United Nations’ Convention on the Rights of Persons with Disabilities to be good news.

It will be great news when we manage to finish the job.

** If you're interested in more detail on "Enforcing International Conventions and Customary International Law in Canada", I would suggest you go here.

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