WHAT IS THIS CASE ABOUT?
In March 2001, the Charter Committee on Poverty Issues (CCPI), along with the Council of Canadians and the Canadian Union of Postal Workers launched a constitutional challenge to the effect the newly established investor-state dispute procedures in Chapter 11 of the North American Free Trade Agreement (NAFTA) have on seriously undermining the Canadian Charter of Human Rights and Freedoms (Charter). NAFTA Chapter 11 allows individual foreign investors and corporations to initiate arbitration against government signatories of NAFTA for alleged breaches of the agreement. Chapter 11 vests authority in arbitrators to adjudicate these claims involving the actions, laws, and policies of the government of Canada which normally would only be brought before Canadian superior courts. The applicants argued that Chapter 11 violates section 96 of the Canadian Constitution, as it interferes with the core and inherent jurisdiction of Canadian superior courts to adjudicate disputes of this nature.
Further, the Applicants argued that Chapter 11 fails to ensure that substantive domestic and international human rights norms are taken into account in arbitrations that affect life, liberty, and security of the person. As a result, they argued that Chapter 11 violates section 7 of the Charter. In addition, the Applicants pointed out that Charter protections are a critical benefit to disadvantaged groups in particular, and delegating NAFTA disputes beyond the reach of the Charter disproportionately disadvantage the vulnerable in violation of the Charter section 15 right to equality.
The Ontario Superior Court found that because NAFTA is an international treaty, it is unaffected by section 96 of the Constitution. The Superior Court also dismissed the Applicants’ Charter arguments, since they did not present any evidence of a specific breach of Charter rights as a result of the application of NAFTA Chapter 11. The Court of Appeal for Ontario upheld the Superior Court’s judgment. CCPI sought leave to appeal the decision to the Supreme Court of Canada.
AMNESTY INTERNATIONAL’S INTERVENTION
Amnesty International Canada’s Secretary General Alex Neve provided an affidavit in support of CCPI’s motion for leave to appeal the Court of Appeal for Ontario’s judgment in the NAFTA case to the Supreme Court of Canada. The affidavit stated that the Supreme Court of Canada should hear CCPI’s appeal, as it would provide the Court with an opportunity to
- consider the question of whether the Canadian government is constitutionally permitted to negotiate and put into place adjudication and enforcement mechanisms for trade and investment agreements such as NAFTA Chapter 11;
- consider the important question of whether the Charter provides a broad guarantee, consistent with Canada’s international human rights obligations, that the primacy of fundamental human rights such as the right to life, liberty, and security of the person or the right to be equality must be assured in the adjudication of investor claims against government measures, whether they be adjudicated in domestic courts, subject to the Charter, or before international tribunals, under international law; and
- to provide the government of Canada clear guidance as to its constitutional obligations with respect to protecting fundamental human rights in future trade and investment agreements, as well as in NAFTA adjudication specifically.
The affidavit set out that Amnesty International believes that the rights and values enshrined in both international human rights law and the Charter have been seriously undermined by NAFTA Chapter 11 and by the continued negotiation of trade and investment agreements without ensuring the adequate protection of human rights.
STATUS OF THE CASE
Leave to appeal the Court of Appeal for Ontario’s judgment in the NAFTA case was denied by the Supreme Court of Canada.
Charter Committee on Poverty Issues Factum to the Ontario Superior Court of Justice in the NAFTA Case
Canada’s Factum to the Ontario Superior Court of Justice in the NAFTA Case
Superior Court of Justice Judgment in the NAFTA case
Court of Appeal for Ontario Judgment in the NAFTA case
Affidavit of Alex Neve, Secretary General of Amnesty International, in support of the Charter Committee on Poverty Issues’ application for leave to appeal to the Supreme Court of Canada in the NAFTA case