The Consumption of Ideas: Tuberculosis, the Constitutions of Canada and South Africa, and the Progressive Development of Human Rights Instruments.

• Author: Houston, Adam R.

Introduction: Borrowing Tools and Building for the Future

1. Constructing Constitutions and Search for Precedent

2. Balancing Public Health and Human Rights

3. HIV: Building the First Human Rights-Focused Approach

4. Tuberculosis: Justifying the Traditional Public Health Approach

   V Deakin and Goliath: Jurisprudence as Building Block or Ceiling?

6. Building Toward the Future?

   Conclusion

   I would not look to the US Constitution, if I were drafting a constitution [today]. I might look at the Constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary... it really is, I think, a great piece of work that was done. Much more recent than the US Constitution, Canada has a Charter of Rights and Freedoms. It dates from 1982... Yes, why not take advantage of what there is elsewhere in the world? (1) Ruth Bader Ginsberg, Associate Justice of the Supreme Court of the United States Introduction: Borrowing Tools and Building for the Future

   Effective human rights instruments are not usually built from scratch; instead, their construction is a process that involves examining what has worked--and what has not worked--at other times and in other places. After the storm clouds of apartheid lifted to reveal the Rainbow Nation of South Africa in 1994, the first democratically elected government was tasked with drawing up a new constitution that would properly enshrine the human rights that had long been denied the majority of citizens. One source drawn upon in developing the new South African Bill of Rights (2) was the Canadian Charter of Rights and Freedoms, (3) itself then little more than a decade old. Viewed together, the Canadian and South African instruments represent progressive advances in the constitutional enshrinement of human rights; as such, each reflects an enlightened view of human rights at the time it was drafted, with subsequent jurisprudence reflecting further attempts to accommodate emerging global norms.

   As an example, at the same time that the South African Bill of Rights was being drafted to offer the world's first (4) explicit constitutional recognition of equality based on sexual orientation, (5) the Supreme Court of Canada was reading in similar protections as an analogous ground under the Charter. (6) In turn, the South African document is also more expansive in other areas than its Canadian antecedent, particularly in its incorporation of social and economic rights that are absent from the Charter, this reflects shifts in international acceptance of socio-economic rights not merely as aspirational goals, but as rights to be claimed and adjudicated. (7) Thus, just as important as the similarities between the documents is how they serve as an example of a positive approach by which countries can look to each other in the progressive development of human rights norms: by recognizing shared values and using existing models as foundations for building even better human rights tools.

   At the same time, looking to the experiences of other jurisdictions can also hinder the progressive development of human rights norms, including through impacting the jurisprudence underpinning those norms. This occurs when one state uses the experiences of another to justify its own actions as meeting existing standards, rather than evaluating whether those standards are themselves sufficient. It was this latter approach South Africa took in drawing direct parallels between the Bill of Rights and the Charter in order to justify its actions regarding involuntary confinement of tuberculosis (TB) patients. One poorly reasoned case thus led to a second, thousands of kilometres away. In exploring how this came to pass, this article examines the issue of evolving human rights instruments and norms from a number of angles.

   First, in order to illustrate how such instruments can influence each other directly, it explores the connections between the Canadian Charter and the South African Bill of Rights. Next, parallels between the two instruments with regard to balancing human rights and public health are outlined in more detail. The paper then turns its attention to the integration of human rights into the response to the global HIV epidemic, and how the global human rights framework evolved as it incorporated the experiences of different countries emphasizing different rights under different circumstances. The story of HIV and human rights is then contrasted with that of TB, a disease that has attracted considerably less attention from a human rights perspective despite its longer history. The paper next returns to the interplay between the Charter and the Bill of Rights to highlight the negative influence of the Canadian Toronto (City, Medical Officer of Health) v Deakin (8) case on the Minister of Health of the Province of Western Cape v Goliath (9) case in South Africa. It then explores subsequent developments relating to TB and human rights in both jurisdictions, outlining both stumbles and advances on the path toward treating human rights as an essential consideration within the broader legal and policy response to TB, while pointing toward avenues for positive influence on the development of Canadian human rights jurisprudence in the future.

1. Constructing Constitutions and Search for Precedent

   In 1989, just prior to her appointment to the Supreme Court of Canada, McLachlin J commented upon the challenges that the Charter had posed for the judiciary since its 1982 introduction: "The difficulty is that the Canadian Charter of Rights and Freedoms is a new experience. We have not had anything like it before. Our judges cannot rely on their own experience to breathe life into the Charter, instead, they must find that life elsewhere." (10) As to where such life might be found, she noted "there are other sources of comparable experience which should be directly applicable to our Charter", including "charters of rights in many countries throughout the world". (11) As such, Canadian courts interpreting the Charter drew from other jurisdictions, including from the case law surrounding human rights instruments that had directly influenced the drafting of the Charter, such as the European Convention on Human Rights (ECHR). (12)

   In turn, Canada would influence the drafting of South Africa's Bill of Rights. Its influence stemmed not only from the ostensible merits of the Charter itself, but also Canada's direct links to the development of the South African instrument. As one South African analysis concludes, "the nationality of most foreign experts, and of the precedents most heavily consulted in the process of drafting the Constitutions, follows the nationality of funds fairly closely". (13) Such influence included both the provision of Canadian experts to South Africa and funding for South Africans wishing to acquire relevant foreign expertise.

   Canadian influence would thus also be reflected in the choice of foreign case law subsequently used for interpretation of the new instrument. South Africa's Bill of Rights is in fact explicitly designed to take notice of legal developments elsewhere; under section 39(1), a court interpreting the Bill of Rights may consider foreign law, and must consider international law. (14) In turn, "[d]espite Canada's relatively short history of constitutional adjudication, Canadian references are strikingly prominent in the case law, as might be expected in the light of the clear debt that the South African Bill of Rights owes to its Canadian counterpart." (15) For instance, the case of R v Big M Drug Mart (16) was "cited at least 31 times in the Constitutional Court in cases dealing with a variety of issues" by 2011. (17) Once introduced, particularly at the level of the Constitutional Court, the influence of principles imported from Canadian jurisprudence trickled down to percolate throughout the system.

   It must also be noted that influence between the Charter and the Bill of Rights has tended to flow primarily in one direction. The potential for mutual exchange has long been recognized, however. For instance, in 1998, Peter Hogg, arguably the pre-eminent scholar on Canadian constitutional law, spoke at a conference in the Constitutional Court of South Africa. After noting that "the Canadian Charter of Rights is the closest in its language and structure to the South African Bill of Rights" and commenting on the extensive citation of Canadian case law in South African courts, he expressed his admiration for the high quality of South African jurisprudence, and concluded: "When Canadian lawyers become aware of this resource, and the reports become widely available, the South African decisions will become very useful in Canada, and any debt now owed to Canada will be fully repaid with interest!" (18) As illustrated later in the paper, collecting on this debt when it comes to health and human rights could yield dividends for Canada.

2. Balancing Public Health and Human Rights

   The parallels between these two instruments prove particularly relevant when it comes to the balancing of public health and human rights. Public health law measures such as involuntary isolation of patients with infectious diseases can result in serious infringements of individual civil liberties. At the same time, some infringement upon individual rights may be necessary to protect the public. This balance is recognized under international law. (19) Thus, the fact the Charter and the Bill of Rights share a "structure of establishing rights that are subject to reasonable limitations and the central role played by the notion of proportionality" (20) has direct implications for how these instruments can be compared when striking a balance between human rights and public health. Rather than adopt the absolutism of the American Bill of Rights, Canada had drawn upon international instruments like the aforementioned ECHR in crafting...