The attempts by Dr. Delev to obtain some recognition by the courts of the injustice which he suffered are documented in detail in this book. I do not intend, in these brief comments, to review the legal aspects of the case. However, a few observations appear to be in order. When it comes to vindicating a victim of unlawful detention and abuse within psychiatric hospitals, a civil lawsuit seems to be a very blunt instrument.

In Dr. Delev's case, after a lengthy trial, Justice Pierre Boudreault of the Quebec Superior Court dismissed the action in a lengthy judgment. Although in my view there were some serious errors in the reasons given by the trial judge, these become extremely difficult to correct on appeal. The Quebec Court of Appeal exercises great reserve in reviewing issues of fact that have been considered by the trial judge, and the Supreme Court of Canada will reconsider such matters only in the rarest of cases. The chances of success in the Supreme Court were tiny, not because of any weakness in the merits of the case, but because of the extremely narrow scope of review that is allowed by law and by custom in that highest court.

Therefore, the failure of Dr. Delev's lawsuit in civil liability should not be taken as any definitive pronouncement on the matter. Another trial judge might well have reached the opposite conclusion. But once the matter had been settled by the trial judge, the die was cast, and it was virtually impossible to obtain review of the matter on appeal.

This book is in many ways a new trial for Dr. Delev. Its many readers will have a chance to review the evidence and decide for themselves the truth of what happened when he was arrested and interned. Nobody should feel that the issues have been prejudged simply because the case before the Superior Court was dismissed.

My continuing interest in Dr. Delev's case is motivated by my preoccupation, as both a lawyer and a scholar, with human rights law. Modern human rights law begins with the Universal Declaration of Human Rights, drafted by René Cassin, Eleanor Roosevelt and others in the years following the Second World War, and adopted by the United Nations General Assembly on December 10, 1948. The Universal Declaration focusses on a fundamental aspect of the human condition, using a word that is never defined but whose meaning we all understand: dignity. International human rights law guarantees that Dr. Delev's dignity be protected. I believe that it was not.

Although modern international human rights law has done much to advance the recognition of these principles they are not of course of recent invention. The early sources are important: Magna Carta, the Habeas Corpus Act and the Bill of Rights of 1689, to name the more well known. Early in his difficult saga, Dr. Delev sought to challenge his illegal detention by means of habeas corpus, the "great writ of liberty", whose contemporary importance is enshrined in the Canadian Charter. He was wrongly stymied in his efforts to use this vital legal mechanism.

As early as 1977, the Commission on Human Rights of the United Nations took steps to formulate guidelines dealing with the protection of persons detained on the grounds of mental ill-health. The project was endorsed the following year by the General Assembly, and the task of preparing a report and draft guidelines assigned to the distinguished Greek jurist, Erica-Irène Daes. In preparing her report, Ms. Daes sent a questionnaire to United Nations members soliciting information that would be useful in preparing her report. Several Canadian provinces cooperated in furnishing information for the study, but not Quebec. The final report prepared by Ms. Daes is an extremely useful review of the international human rights issues raised by psychiatric detention (U.N. Doc. E/CN.4/Sub.2/1982/16).

The title of this important advance in international human rights law may be slightly misleading. The "Principles" contemplate the protection not only of persons suffering from mental illness, but also of those "who are being treated as such persons". The distinction was only implicit in the early drafts of the resolution, but was made clear by its insertion in the final version of the "Principles". Consideration of the issue of protection of the mentally ill in this preface should therefore not be taken as any admission that Dr. Delev was in fact suffering from mental illness.

It is worth noting, in passing, that the importance of such judicial review mechanisms has been underscored in other international human rights fora, specifically in the case law of the European Court of Human Rights (see, for example, the recent cases of Herczegfalvy v. Austria, Series A, Vol. 244, and Megyeri v. Germany, Series A, Vol. 237-A, rendered late in 1992).

The "Principles" are only a General Assembly resolution, and as such do not create binding legal obligations on Member States. Yet such resolutions are often considered as a form of codification of customary human rights norms. They are used to flesh out the guarantees expressed in more summary form in such international legal instruments as the International Covenant on Civil and Political Rights. Canada is bound by the International Covenant, and its courts have frequently applied the provisions of the Covenant as well as of relevant General Assembly resolutions.

It is to be hoped that cases like that of Dr. Delev do not reoccur.

prof. william a. schabas, m.a., ll.d.
member of the quebec bar and director of
the department of the juridical science
university of quebec - montreal