clause, when a question is raised whether a certain phrase or expression was up for consideration at all or not, a reference to debates may be permitted." The European Court of Human Rights and the United Nations Committee on Human Rights all allow their deliberations to be informed by travaux préparatoires.[1]
[17]Our Constitution was the product of negotiations conducted at the Multi-Party Negotiating Process. The final draft adopted by the forum of the Multi-Party Negotiating Process was, with few changes, adopted by Parliament. The Multi-Party Negotiating Process was advised by technical committees, and the reports of these committees on the drafts are the equivalent of the travaux préparatoires, relied upon by the international tribunals. Such background material can provide a context for the interpretation of the Constitution and, where it serves that purpose, I can see no reason why such evidence should be excluded. The precise nature of the evidence, and the purpose for which it may be tendered, will determine the weight to be given to it.
[18]It has been said in respect of the Canadian constitution that:
…the Charter is not the product of a few individual public servants, however distinguished, but of a multiplicity of individuals who played major roles in the negotiating, drafting and adoption of the Charter. How can one say with any confidence that within this enormous multiplicity of actors … the comments of a few federal civil servants can in any way be determinative.[2]
Our Constitution is also the product of a multiplicity of persons, some of whom took part in the negotiations, and others who as members of Parliament enacted the final draft. The same caution is called for in respect of the comments of individual actors in the process, no matter how prominent a role they might have played.
- ↑ Article 32 of the Vienna Convention of Treaties 1969, 8 ILM 679 (1969) permits the use of travaux préparatoires for the purpose of interpreting treaties. For examples of the application of this principle, see Keith Cox v Canada, United Nations Committee on Human Rights, Communication No. 539/1993, 3 November 1993, at 19, stating:
Nonetheless, when giving a broad interpretation to any human rights treaty, care must be taken not to frustrate or circumvent the ascertainable will of the drafters. Here the rules of interpretation set forth in article 32 of the Vienna Convention on the Law of Treaties help us by allowing the use of the travaux préparatoires.
Ng v Canada, United Nations Committee on Human Rights, Communication No 469/1991, 5 November 1993, at 9; Young, James and Webster v United Kingdom (1981) 3 EHRR 20, para. 166; Lithgow v United Kingdom (1986) 8 EHRR 329, para. 117; and more generally J.G. Starke, Introduction to International Law 481 (10th ed., Butterworths) (1989).
- ↑ Reference re s.94(2) of the Motor Vehicle Act (British Columbia), supra note 19, at 49.
