The right to procedural fairness is closely intertwined with the right to an effective remedy. The Committee on Economic Social and Cultural Rights (CESCR) has noted that it is fundamental to the rule of law that there is someplace to go to be heard if a right is being violated, that there is a process for consideration or adjudication of the claim, and that there is an effective remedy provided if a right has been violated. The right to participate is also closely intertwined with the concept of reasonableness and the right to a reasonable policy/program. The CESCR has noted that one of the necessary components of a reasonable policy/program is that it be developed with extensive and genuine participation of affected groups. International human rights law dictates that individuals and groups should be given the opportunity to be consulted and actively participate in the development of programs and policies that will affect their enjoyment of fundamental rights.
Where the provincial government has revoked or enacted a policy/program that affects an individual’s/a group’s rights, it may be argued that international law imposes a positive obligation on the government to consult with these individuals/groups and account for their ideas and input. It may also be argued, that where groups/individuals are denied access to an effective remedy for a violation of economic and social rights, this violates not only the rule of law, but also the right to procedural fairness, participation and access to effective remedies.
For international jurisprudence relating to the right to participate, click here.
| Treaty Provision |
Text |
| International Covenant on Civil and Political Rights, art. 9 | “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” (emphasis added) |
| Convention on the Elimination of All Forms of Discrimination Against Women, art. 7, 15(2) | “(b) To participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government;(c) To participate in non-governmental organizations and associations concerned with the public and political life of the country.” (art. 7)“States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals.” (art. 15(2)) |
| Convention on the Rights of Persons with Disabilities, art. 29(a)(b) | “(a) Ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected..(b) Promote actively an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs, without discrimination and on an equal basis with others, and encourage their participation in public affairs, including:(i) Participation in non-governmental organizations and associations concerned with the public and political life of the country, and in the activities and administration of political parties;(ii) Forming and joining organizations of persons with disabilities to represent persons with disabilities at international, national, regional and local levels.” |
| Declaration Provision |
Text |
| Declaration on the Rights of Indigenous People | “Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision- making institutions” (art. 18)“States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources” (art, 32(2))“States, in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration” (art. 38) |
Concluding Observations:
General Comments:
Other Jurisprudence:
For more context specific observations made by various UN bodies regarding Canada’s performance under various international treaties click here.