Wednesday, July 5, 2000 No, no and... name By Alain-Robert Nadeau from the newspaper Le Devoir in Montreal

On June 22, the Supreme Court of Canada rejected the request for permission to appeal of Pierre Montreuil - better known under the first name Micheline - a lawyer from the Quebec City region. Of the three judges who heard the request, Judge L'Heureux-Dube expressed her dissidence and would have heard this matter. Once again, Judge L'Heureux-Dube has proven that she's ahead of her time.

Still, there's no need to be surprised. During a speech presented before the members of the bar of Quebec at the beginning of June, she predicted that over the course of the next decade, the challenges posed in law, and more specifically to the courts, will be the following: the universal recognition of liberties and fundamental rights, globalisation and the information era. This assertion, marked with wisdom and clairvoyance, appears to me completely fair, particularly regarding this question of personal identity.

The principal source of standards of international law is undoubtably that which had commonly been called the International Charter of Human Rights. This includes notably the Universal Declaration of Human Rights (1948), the International Pact regarding Civil and Political Rights (1976) and the International Pact regarding Econonomic, Social and Cultural Rights (1976). These last two instruments, similar in construction to the Canadian Charter of Rights and Freedoms in the first case and the Quebec Charter of Personal Rights and Freedoms in the second, were ratified by Canada on May 19, 1976. These are simply unassailable judicial standards.

The respect of obligations assumed under the International Pact regarding Civil and Political Rights (1976) is assured by the Committee on Human Rights. They study the reports presented by member states on the measures they've enacted giving effect to the rights recognised by the pact. They address member states through their own reports as well as all "general observations" which they deem appropriate. The Committee of Human Rights can also, once the member state has recognised its jurisdiction, receive and examine "communications" in which a member state claims that another member state doesn't meet its obligations or in which an individual affirms that one of their fundamental rights has been violated. Note that the Committee on Human Rights cannot accept a case until recourse under the domestic legal system has been exhausted.

So we come back to Micheline Montreuil. For reasons that only concern him, the Charlesbourg attorney wants to also be named Micheline. But the Director of Civil Status of Quebec rejected her request for a change of name. Judge Claude Rioux of the Superior Court of Quebec upheld this decision. The Appeal Court of QuÈbec as well. More recently, one sees, the Supreme Court refused to hear this matter. Therefore recourse under Canadian law has been exhausted. Therefore, if she wishes, Micheline Montreuil can appeal this to the Committee on Human Rights.

On what grounds? Because the Quebec government has infringed her right to privacy, guaranteed by Article 17 of the Pact regarding Civil and Political Rights. The interpretation of this disposition, which explicitly guarantees the right to respect of privacy, is done in two steps. The first step consists of determining if the examined facts invoke a right protected by the first paragraph of Article 17. The second step is intended to establish if the infringement constitutes an "illegal" or "arbitrary" infringement of this protected right.

In the Coeriel (1994) case, the Committee on Human Rights had judged that the refusal of a member state to comply with a request regarding a change of name violated the right to privacy. Furthermore, the magistrates had adopted this neo-liberal vision of the idea of privacy according to which the right to respect of privacy makes reference to a zone of personal autonomy in which the individual may freely express their identity.

The European Court of Human Rights adopted the same principle in the Guillot (1996) case and ruled that the choice of first name of a child by their parents displayed a personal and affective nature which entered into the sphere of private life of the parents. While the Convention to Safeguard Human Rights and Fundamental Freedoms (the European Convention), under which this decision was made, has no binding force in the Canadian judicial system, its jurisprudence is frequently cited and compared by the judges of the Supreme Court of Canada. On the basis of jurisprudence of the US Supreme Court, its moral authority is incontestable.

In this context, it appears difficult to agree with the response of the Supreme Court of Canada because this decision of the Director of Civil Status of Quebec is clearly contrary to the right to respect of privacy guaranteed by the charters of rights. I'd add that this arbitrary and stubborn behaviour by civil servants and by the Director of Civil Status of Quebec must stop.

In short, you will understand that at this unjustified intrusion by the state in the private lives of individuals, I say no, no and no.
 

© Le Devoir 2000
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