Session 1 - Trends and Current Issues for Human Rights Commissions
Moderator: Pearl Eliadis
Pearl Eliadis introduced the topic by identifying the following major themes:
- The link between human rights institutions and civil society.
- The interdependence of human rights.
- The effect that international developments have on the domestic implementation of human rights standards.
- The expanding and interrelated set of human rights which in turn affects the perception that human rights institutions have of their own mandates.
Panelist: Professor Harish Jain
Professor Jain provided a timely introduction to current issues and trends for human rights commissions by presenting an overview of the mandate of the Canadian Human Rights Act Review Panel (“the Panel”), and a sample of the issues for reform being considered by the Panel.
Appointed by the Federal Minister of Justice in April 1999, the Panel has a mandate to conduct a review of the Canadian Human Rights Act (the “CHRA”) and the Canadian Human Rights Commission’s (the “CHRC”) policies and practices, and to report back to the Minister as to the adequacy of the scope of the CHRA and the jurisdiction of the CHRC. The Panel received over 200 written briefs from various stakeholder organizations, and traveled all over Canada to hear from employers, service providers, labour organizations, federal government departments, NGOs and equality seeking groups, in addition to holding evening sessions for the public at large. More than 250 people participated in the consultations. The Panel also met with some other Canadian human rights commissions, such as the Ontario Human Rights Commission and the Quebec Human Rights Commission, and also commissioned research on topics such as social condition and mandatory retirement.
Professor Jain highlighted for the group some of the specific issues being considered by the Panel in its review, though he cautioned that the selection of topics did not reflect the priorities of the Panel.
The Complaint Based System
The Panel heard concerns that the individual complaint based system is not working, due primarily to delay, resulting in clear frustration and disappointment with the system. A concern has been expressed that commissions are dismissing cases for administrative reasons without providing people with the opportunity to tell their stories. Professor Jain stated that the Panel had been asked to consider a model that provides direct access to a court or tribunal, to make recommendations that would streamline the process, and to recommend the use of Alternative Dispute Resolution.
The Panel was told that the CHRC should focus on systemic discrimination. Disability advocates, for instance, want barriers removed, and do not want to have to complain about one facility or service at a time. The Panel also received representations about the need for monitoring of settlements and tribunal orders to ensure the elimination of systemic barriers.
The Panel heard that the CHRA should be amended to include reference to Canada’s international obligations, especially under the International Covenant on Civil and Political Rights (the “ICCPR”) and the International Covenant on Economic, Social and Cultural Rights (the “ICESCR”). Some have said that social and economic rights should be expressly enshrined in the CHRA.
The overwhelming consensus among equality seeking groups is that ‘social condition’ should be added as a new ground to prohibit discrimination on the basis of social standing. There is no consensus as to what the term means, however – it could cover receipt of social assistance, low income, non-income, homelessness and illiteracy.
Hate Messages on the Internet
Professor Jain indicated that this was an issue that is being considered by the Panel.
Some groups have suggested that women and new Canadians are adversely affected by mandatory retirement and that the provision that permits it should be removed from the CHRA. On the other hand, most employers and trade unions felt that this exemption should be dealt with through collective bargaining.
Section 67 of the CHRA>
This section prohibits many Aboriginal persons from using the human rights process. Some have advocated for its removal from the CHRA. However, some Aboriginal bands have said that the direct application of the CHRA to Aboriginal governments does not give the bands the flexibility they require.
The Purpose of the CHRA
Submissions have stated that the CHRA and the CHRC should focus on equality rights rather than anti-discrimination, focus on the removal of barriers and create positive obligations through regulations or guidelines. Submissions have also said that the CHRC should have a greater role in monitoring and enforcing guidelines and in public education as many groups are unaware of their rights.
Some have pointed out the conflict in the role of commissions which act as investigator, mediator, decision-maker and creator of binding guidelines. This may create the perception of conflict of interest in the public eye.
The Potential for Multiplicity of Forums
Complainants have a choice of forum for employment disputes involving human rights issues. The Panel was asked to recommend a more streamlined approach for resolving human rights issues, especially where the grievance process is available.
Moderator: Pearl Eliadis
Ms Eliadis noted the following themes arising out of Professor Jain’s presentation:
- The universality and interdependence of rights “on the ground” i.e. where are human rights commissions in the daily enforcement of rights?
- The growing recognition of social and economic rights as central to human rights dialogue.
- The perceived gap between anti-discrimination law and substantive equality, and the fact that most courts (especially the lower courts) will not wade into the area of social and economic rights.
- Alternative manners for resolving disputes – for example, the Ontario Human Rights Commission (“OHRC”) mediation process which has fundamentally altered how the OHRC processes complaints and which has been well received by the parties to the process.
Panelist: The Honourable Rev. Lois Wilson
In her presentation, Senator Wilson identified two related challenges currently facing human rights commissions in Canada: the domestic implementation of international human rights instruments, and the need to develop a new way of thinking about human rights that goes beyond the addition of new grounds to a model that was formed in the historical context of the 1950s. Such challenges, it was suggested, are primarily conceptual and analytical in nature, and therefore require training and education for commission staff, lawyers, courts and the public.
As signs of these new challenges, Senator Wilson noted increased awareness of the implications of the two United Nations (the “UN”) conventions - the ICCPR and the ICESCR - on Canada, how they are interdependent and how they can be made to be serviceable in Canadian society. In 1997, the CHRC acknowledged for the first time that poverty is a fundamental human rights issue in Canada and one that is linked to equality. Such developments suggest that it is incompatible with the notion of the interdependence of rights for domestic human rights institutions to focus exclusively or primarily on civil rights.
Furthermore, the UN Human Rights Committee (established under the ICCPR) has noted that poverty in Canada has a disproportionate impact on women and has recommended a systemic review and systemic change. In particular, the Human Rights Committee has recommended that domestic legislation be amended to ensure complaints that are not settled through mediation are referred to a tribunal. It has also recommended the creation of a public body to ensure implementation of the ICCPR and the ICESCR in Canada. The UN Committee under the ICESCR has rejected the notion that social and economic rights are inherently non-justiciable and has said that Canada must provide legal remedies for violations of these rights. Moreover, interpretations of domestic law must be consistent with international treaties and there must be judicial remedies for rights violations.
In November 1999, Senator Wilson convened a meeting of 40 representatives of Canadian NGOs to discuss the domestic implementation of UN treaties and covenants. They identified eleven (11) areas of difficulty in attaining human rights in Canada and invited two people from each area to the consultation. The areas included: women, Aboriginal persons, persons with disabilities, children, refugees, workers, prisoners, persons living in poverty, the development community, and religious communities.
Several key points of consensus arose out of these consultations:
- The CHRA should be amended to incorporate international obligations, to include social and economic rights and to recognize the principle of substantive equality.
- The mandate and structure of the CHRC should be revised to conform to the Paris Principles.
- The Minister of Canadian Heritage should convene a meeting of provincial Ministers responsible for human rights to discuss follow-up to the 1998 UN Concluding Observations under the ICCPR and ICESCR.
- Parliamentary hearings should be held on the 1998 Concluding Observations with the participation of human rights groups.
- Human rights education should be given paramount importance, including the education of Parliamentarians, the judiciary, the media, the public and NGOs. One way to do so would be to hold organized meetings to educate and present positions to each political party caucus.
- A Parliamentary standing committee on the implementation of international conventions and treaties (such as the ICCPR and the ICESCR) should be established.
The participants in the consultation developed an action plan and established groups to:
- Continue to work on a review of the CHRA
- Work on the implementation of human rights for Aboriginal persons
- Look at the Social Union Framework
- Work on public education with respect to human rights
- Review the ratification of treaties: both those Canada has ratified but also those not yet ratified and set some time lines for the later
- Consider the links between trade and human rights
- Mobilize Parliamentarians to implement human rights domestically
With respect to the final point, the intent is to create a committee of Parliamentarians who will study any proposed legislation to see if it complies with Canada’s international obligations. It is hoped that a Senate Human Rights Committee will be formed. Currently, proposed legislation must be reviewed and signed-off as being in compliance with the Charter. The same can be done with respect to Canada’s international obligations. This committee could also look at Canada’s reports under UN conventions before they are sent and can be involved in follow-up afterwards. Senator Wilson summarized the aspirations of the participants by indicating that there is quite a lot to be done at the parliamentary level.
Finally, Senator Wilson noted that there needs to be a national mechanism, with corresponding obligations, to move the most pressing human rights claims in Canada from the margin to the centre of discourse.
Moderator: Pearl Eliadis
Ms Eliadis noted Supreme Court of Canada jurisprudence according to which international treaties ratified by Canada should be used as an interpretive tool for the Canadian Charter of Rights and Freedoms (the “Charter”). The same approach could be used for human rights legislation, i.e. human rights codes can be interpreted in accordance with international obligations. Ms Eliadis cited as an example the OHRC’s Policy on Discrimination Because of Pregnancy. In the development of this policy, the UN Convention on the Elimination of Discrimination Against Women was used to interpret the Ontario Human Rights Code’s protection of ‘pregnancy’ to include the post-delivery period.
Ms Eliadis noted that federal obligations flow down to provincial and territorial commissions, in areas where the provinces and territories have competence, and that the provinces and territories also have an obligation to ensure that international standards are being met. Commissions need to understand their role in the implementation of standards.
The group discussion following this panel focussed on the following themes and issues: the role of the Ombudsman (“Ombuds”) in the area of human rights, the use of international instruments in domestic laws, the sources of resistance to the recognition of the social and economic rights, and the shortcomings of the complaint driven system. There was also brief discussion of children’s rights and a discussion of Quebec’s experience with human rights legislation that recognizes ‘social condition’ as a prohibited ground of discrimination.
The Role of Ombuds
It was noted that in the international evolution of human rights institutions, some institutions are actually called Ombuds. Where we go in Canada with the role of human rights commissions has a lot to do with the mandate of other institutions e.g. Parliament, Ombuds, and other independent bodies with a statutory mandate. It was noted that there must be some differentiation between these institutions.
The Use of International Instruments in Domestic Laws
One participant noted that not only is a review of new laws to ensure compliance with international obligations not done in Canada, very little Canadian legislation even mentions Canada’s international obligations. The Multiculturalism Act and the Emergencies Act were cited as two of the only examples. It was stated that signing-off on legislation as being in conformity with international obligations should be required. Based on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, in 1985 the Federal government did amend the Criminal Code to include torture as a criminal offence and used the definition from the convention. However, it is unfortunate that according to this definition, under certain circumstances, torture remains legal.
Resistance to the Recognition of Social and Economic Rights
Regarding why the notion of social and economic rights is so troubling to people, it was suggested that people see a distinction between positive and negative rights: we recognize the right to not have the State do something to us, but don’t necessarily think the State should do anything for us. In fact, international norms pay a good deal of attention to the duty of the state to legislate and to regulate private actors. For example, with respect to housing, international norms could be used to look at welfare rates, discriminatory practices in the private housing market, the provision of social housing, home ownership and discriminatory practices in the finance sector. Some of these aspects of the homelessness problem can be regulated by the State at no cost to it. For example, regulating private discriminatory practices can an effective response to homelessness. Many social and economic rights do not require government expenditure or action, and are non-discrimination rights (see for example, the decision of an Ontario Board of Inquiry in Kearney v. Bramalea Limited). Part of the problem in the enforcement of social and economic rights is the perceived conflict between the jurisdiction of elected representatives to decide social policy and that of non-elected bodies (i.e. human rights commissions).
A challenge for human rights commissions is to make governments, courts and the public understand that much can be done in the area of social and economic rights without compelling the direct provision of goods, services, programs or funding in the same way that, in traditional areas, a lot of progress has been made through the elimination of discriminatory practices in the private sphere.
It was noted that one problem which has contributed to the distinction drawn between civil and political rights, on the one hand, and social and economic rights, on the other, is the fact that the ICCPR and the ICESCR are two separate documents and that Article 2 of the ICESCR refers to the “progressive” realization of social and economic rights. Article 2 is a “major loophole” and allows governments to hold back. It presents an obstacle to moving forward on the ICESCR.
Problems with the Complaint-Driven System
Participants noted that there is a strong perception that the complaint-driven system used by human rights commissions in Canada is not working well, due to problems with delays (although timeliness is improving) and the system’s inability to address systemic discrimination in a proactive way. Moreover, there is a concern that complaints are dismissed by human rights commissions for administrative reasons.
It was noted that the CHRA Review Panel is considering the use of Alternative Dispute Resolution and has looked at the OHRC’s model for mediation as well as the approach used in Quebec and other provinces. One possible option is for complainants to have direct access to tribunals or courts, perhaps with the provision of legal assistance (lawyers or case presenters). However, a system of direct access must be made simple. The idea behind human rights commissions was to provide easy, simple access, but the system has become complex and litigious. The Small Claims Court model is a good example of an alternative as people can present their own case. With this type of direct access model, human rights commissions can then focus on broader, systemic issues.
It was noted that a complaint-based system and one that addresses systemic discrimination should not be seen as mutually exclusive options. Some complaints beg for systemic resolution, while others are individual instances of discrimination that should be dealt with as such. The problem is that under current structures, human rights commissions do not have the capacity to call upon a sector of the economy and seek resolution of systemic issues.
Another area that requires increased attention is the area of the rights of children. Rates of child poverty are high and many young people leave home and face homelessness. There are a number of issues, identified in reports under the Convention on the Rights of the Child, that need to be confronted at a national and provincial level. It was suggested that children’s rights have to be viewed and dealt with separately from other issues such as economic and social rights.
Discrimination on the Basis of ‘Social Condition’ in Quebec
In Quebec, ‘social condition’ is a prohibited ground of discrimination in human rights legislation. For the first 15 years or so, the results with respect to complaints on this ground were not particularly impressive. However, since the establishment of a specialized tribunal 10 years ago, the results have been more encouraging. There have been successful cases in the area of housing for people on social assistance, but there are a limited number of successful cases outside the housing context. Recently, there have been results for people who work on short-term contracts and who face discrimination in housing. Another important case was a challenge to a “workfare” type regime for persons on social assistance which prohibited unionization. A person in this program challenged this and a Tribunal said that workfare is employment and not training so that the exclusion of participants from basic labour protections is discriminatory on the basis of social condition. A significant aspect of this case is the finding that the Quebec Commission can challenge not just discriminatory private practices but also discriminatory government legislation. The Quebec Attorney General is now contesting the Commission’s jurisdiction to take such cases to court and the Commission is awaiting the outcome of this challenge.
Session 2 – International Norms and Best Practices Related to Human Rights Commissions
Moderator: Ian Hamilton
Mr. Hamilton identified three main issues to explore in this session:
- International standards exist to guide the work of human rights commissions. In particular, the Paris Principles provide a framework for national institutions and set standards for new human rights commissions being set up around the world.
- How these standards are being put into practice at the international level. Canadian human rights commissions were set up in the 1960s and 70s but, especially since 1993, human rights commissions are being set up all over the world. These commissions are learning from the experiences of those who have gone before them and are addressing different types of human rights issues. As such, there is a wealth of experience to draw from in the discussion.
- The extent to which international standards and practices are reflected in the work of Canadian human rights commissions.
Mr. Hamilton introduced Brian Burdekin, the Special Advisor on National Institutions, Office of the High Commissioner for Human Rights.
Speaker: Brian Burdekin
Mr. Burdekin presented the group with a description of the experiences of human rights commissions in other parts of the world that could assist Canadian commissions to identify and respond to issues related to the scope of their activities and the effectiveness of their work. He noted that other human rights institutions look to Canada as an example and that, from the High Commissioner’s perspective, what Canadian human rights commissions do is very important and has implications beyond Canada’s borders. Mr. Burdekin then addressed the following aspects of the international experience of human rights commissions: the role of social and economic rights, the role of public education, and the appropriate interpretation of the jurisdiction of human rights commissions.
Social and Economic Rights
Mr. Burdekin noted that when setting up human rights institutions around the world, it is unrealistic not to consider social and economic rights. There is a dynamic and changing balance between independent human rights commissions, Ombuds, anti-corruption commissions and elected governments, all of which must respond to the impact of international forces such as globalization and privatization. These are very important challenges which, if not met, render human rights commissions at risk of seeming irrelevant to the groups who are the most marginalized by these social forces.
When Mr. Burdekin was Federal Human Rights Commissioner of Australia, the issues he confronted related to homelessness, Aboriginal people, the mentally ill and people who had human rights problems that were very largely a reflection of their economic and social plight. Mr. Burdekin pointed out that, whether it is acknowledged or not, there is an interrelationship in all countries – no matter how wealthy - between economic and social rights, the deprivation of those rights, and violations of civil and political rights. Mr. Burdekin gave an example from Australia of homeless children being picked up by the police and subjected to violations of their civil and political rights. The history of what led to violations of their civil and political rights was very much bound up with the social and economic situation of the family they came from. Furthermore, despite being a highly vulnerable and marginalized group, there tended to be very few complaints from homeless children. Accordingly, it was necessary for the relevant human rights institution to consider how to initiate a process on their behalf that would allow an examination of the systemic issues they faced. Mr. Burdekin emphasized that poverty has a direct nexus with human rights violations when poverty is the cause of those violations. The links between these issues must be made; otherwise commissions will not be effectively handling individual complaints and will not be getting to the cause of complaints and issues of systemic discrimination.
The example of homeless children in Australia served to illustrate the point that complaints are often lowest for those who are most marginalized and so these groups do not necessarily get the attention of federal or provincial human rights commissions. Accordingly, human rights commissions need to be proactive by considering issues of systemic discrimination and being involved in social and economic issues.
Mr Burdekin further emphasized that alternative dispute resolution such as conciliation, mediation and arbitration give some of the most vulnerable groups access to justice and must continue to be developed. The courts do not always provide a viable option as they are not accessible, tend to take a long time and are costly. The issue of the accessibility of the process for resolution of human rights issues is fundamental.
Mr. Burdekin drew attention to the nexus between effective public education/promotion of human rights and complaints. The difficulty for human rights commissions is that with increased public education, there tends to be an increase in the number of complaints received and so commissions must have the resources to cope. Commissions should have the power to formulate guidelines for the avoidance of human rights abuses on a systemic basis, as opposed to a case-by-case basis, as the prevention of violations is more effective than dealing with complaints after-the-fact. Where human rights commissions do not have this power, they must convince governments to give them this power on the basis that proactive and preventative policies are better and more effective than dealing with complaints after they occur. The difficulty that arises is that effective prevention is difficult to quantify and so it can be difficult to convince governments that when commissions are preventing complaints, they are being effective.
The Jurisdiction of Human Rights Commissions
Mr. Burdekin noted that the Canadian situation, where provincial human rights commissions cover the majority of the population and, in some cases, are larger than the federal commission, is very unusual. International treaties are signed voluntarily and are binding on all levels of government. Laws and practices at both the federal and provincial levels must reflect international standards and the standards must have the force of law. If they do not, they must be amended so that international standards are reflected in law and in practice. On this point, Mr. Burdekin noted that international bodies monitor the performance of countries in a way that is becoming increasingly effective. Governments are being exposed to tough questions about what they are doing or not doing to comply with their international treaty obligations.
Mr. Burdekin stated that there is a direct and essential link between the international human rights treaties and between the standards involved in the Paris Principles (e.g. the mandate and independence of human rights commissions and the jurisdiction those commissions must be given at the national and provincial levels so they can carry out their tasks). If that link is not there, those commissions will not be accessible to those who need them. Commissions must be able to conduct strategies and programs that make them more accessible, especially for people who rarely launch complaints. Otherwise, they will be failing in their obligation to incorporate human rights protections at the national and provincial levels.
According to Mr. Burdekin, commissions should adopt a broad interpretation of their jurisdiction, as this will allow them greater scope to address human rights violations. However, a broad interpretation is more likely to be accepted if the commission has public support. Public support, in turn, is a function of community education, an understanding of what commissions do and of a perception that the commissions are proactive. Equally, independent human rights commissions should have constructive and productive working relationships with parliaments, including giving evidence to parliamentary committees. Human rights commissions can and should play a central role in human rights issues and human rights discourse. Finally, good leadership is critical to strong, effective commissions that can engage other instruments of government and institutions within the community.
Moderator: Ian Hamilton
Mr. Hamilton summarized the following points made in Mr. Burdekin’s presentation:
- the link that is being seen at the international level between violations of civil and political rights on the one hand and economic and social rights on the other;
- the need for accessibility, independence, a broad jurisdiction and adequate powers for human rights commissions to be effective and not rendered irrelevant;
- the importance of co-operation between civil society and human rights commissions; and
- the importance of operational efficiency.
Mr. Hamilton also reiterated that an important issue is the obligation to incorporate international standards into domestic law. The mandates of most new human rights institutions being established abroad refer directly to international standards. These commissions are given powers to monitor the implementation of international instruments, to propose ratification of new instruments and to look at whether domestic legislation is in conformity with international obligations. For the most part, these powers have included economic and social rights. This is not the reality in Canada where there is no public body to monitor Canada’s implementation of international standards.
The group discussion following Mr. Burdekin’s presentation addressed the topic of best practices and the institutional competence of human rights commissions by focussing on the following themes: the effectiveness of the Quebec approach in promoting social and economic rights, the adequacy of the Paris Principles, the appropriate measures to address systemic discrimination and race relations, and the use of internal responsibility mechanisms as an alternative model for addressing human rights issues. There was also a brief discussion of concerns related to funding and resources for commissions, and a discussion of the relationship between international and domestic law.
Social and Economic Rights in Quebec and General Comment No. 10
While Quebec is one of the only jurisdictions where social and economic rights are expressly protected in human rights legislation, it was noted that the Commission does not have powers of investigation when violations of economic and social rights occur and these rights do not have precedence over other laws. Nevertheless, the Quebec Charter provides some powers to the Commission, such as the power to conduct research on the issues. Recently, the Quebec Commission has carried out research on systemic discrimination in housing and has referred to international standards with respect to housing. The Commission also gives evidence to Parliament when Bills are studied in Parliament based, among other things, on international standards (for example, concerning social welfare). General Comment No. 10 of the UN Committee on Social, Economic and Cultural Rights includes a list of things commissions can and should do, including providing technical advice to governments, identifying national benchmarks against which realization of Covenant obligations can be measured, and so on. It was suggested that commissions want to do these things, but have difficulty because of a lack of resources.
Mr. Burdekin gave an example of Australia’s application of the suggestions in General Comment No. 10. The Australian commission undertook a review of all legislation that affected the mentally ill and found that many laws didn’t comply with international treaty obligations. It found tremendous human rights abuses built into the system and the legal structure. The review took five years and resulted in a change to a number of laws and the establishment of a series of benchmarks. Benchmarking means taking the international standards, saying what the law currently says and then pointing out the differences and demanding that changes be made. This represented a tangible example, at a local and state level, of applying international treaties.
It was noted that the Paris Principles were an attempt to get benchmarks, or minimum requirements, for what a serious human rights commission is. They were a negotiated compromise designed to embrace a range of different types of institutions from different legal systems (for example, systems which are not based on an adjudication of complaints). The principles, such as the need for independent and autonomous commissions with a broad based mandate, were a significant achievement and remain useful.
Most new human rights commissions apply the principle of a broad based mandate and, therefore, incorporate international human rights standards and social and economic rights in their mandates (for example, the commissions in South Africa, India, Uganda and Rwanda). Older commissions, such as those in Canada, tend to have more traditional mandates and do not refer to international instruments.
Mr. Burdekin reiterated that addressing systemic discrimination is not a substitute for individual complaints – both should exist together. In fact, individual complaints can be used as a basis to recommend guidelines and systemic changes. If commissions are not getting individual complaints from those suffering systemic discrimination, they should initiate systemic inquiries and a process of trying to formulate guidelines.
It was noted that there are statutes that deal with race issues. However, many complaints that come before commissions are based on racial discrimination, particularly in employment. Some commissions have tried having sections devoted to race issues. It was noted that most people don’t understand race relations, and so it may be worthwhile focusing on this issue and spending resources to train and educate people in this area.
Mr. Burdekin described the Australian experience with specialized bodies. After ratifying a specific treaty, for example an international treaty on racial discrimination, Australia set up a body to monitor implementation of the treaty, for example, a racial discrimination commission. Eventually these specialized bodies were consolidated. The relationship between various minorities and between minorities and the majority is fundamentally important. Countries pay an enormous cost for not fostering a culture of tolerance and respect for individual difference. With respect to the issue of public education and promotion, Mr. Burdekin noted that the creation of a culture of respect for difference is even more important than the complaints side of commissions’ mandates. Public education campaigns to foster respect for difference give an element of visibility to commissions’ mandates. If a commission doesn’t have a history of proactive education and promotion, it is harder to respond to specific issues of intolerance when and if they come up (e.g. against the Arab community during the Gulf War).
Internal Responsibility Mechanisms
Workplace occupational heath and safety committees, which have been successful in reducing workplace accidents, were raised as a potential model in the human rights context. Under occupational health and safety legislation, workers can walk off the job if conditions are unsafe. The CHRA Panel has been asked to consider an internal responsibility mechanism, similar to the occupational health and safety model, which would mandate human rights committees in the workplace. This would take some of the responsibility for dealing with human rights issues away from governments and commissions and place it with employers. The federal Parliament is considering amending the Canada Labour Code to include, in the provisions dealing with occupational health and safety, harassment and violence in the workplace. A worker would then be allowed to walk off the job if they could not work due to harassment (some unions have negotiated such a provision in their collective agreements). In short, there are other ways, other than by increasing the role of commissions and governments, to address human rights issues, particularly in those that arise in the workplace.
It was noted, however, that some workers are not sufficiently empowered to refuse to work, no matter what the conditions, and fear reprisal from the employer. Because of this, committees that are linked to the employer may not be as accessible as a process that is neutral and has the force of government behind it.
One participant noted that when considering, in relation to institutional competence, why it is important for human rights commissions to take a greater role in the area of social and economic rights, the issue of accessibility is very important. There is also the issue of representation: one could possibly imagine a poor person being appointed a human rights commissioner or a tribunal member in a way that is unimaginable in terms of a judicial appointment. Moreover, in the promotion of the complaints model as a way to deal with social and economic rights complaints, we forget that the groups we want to benefit are least likely to avail themselves of these remedies. Commissions have the advantage that they can develop mechanisms for going out and finding and supporting complainants (or even laying complaints themselves, where appropriate) in a way that courts cannot.
Funding and Resource Allocation
One concern that was noted is the fact that there is no body to follow up on public commissions and inquiries which have been held and which have made recommendations. If there is a body to follow-up, we can avoid the repetition of problems that will keep arising unless changes are made. Another concern is cutbacks to human rights commissions’ budgets. In addition, there should be a balance between the funds allocated to education and the prevention of systemic discrimination, and to remedial action with respect to existing complaints. Complaints are an important part of commissions’ work, but the other dimensions, i.e. education and prevention of discrimination, should be strengthened.
The Relationship between International Law and Domestic Law
Brian Burdekin wrapped up the discussion by noting that countries are moving towards human rights commissions that have international treaties as the basis of their mandate. In Europe and internationally the trend is to incorporate international human rights standards into domestic law and to give them the force of law. Ninety percent of new commissions are set up this way. In some countries, international treaties override domestic laws. In some European countries, for example England, Ireland and Scotland, judges and decision-makers must be bound by European human rights standards. Any domestic policies, practices and legislation that are inconsistent are inoperative or overruled. That this approach should also be used in Canada is not a radical proposition as it is the way Europe and the world (other than the United States) is moving. Nunavut has a wonderful opportunity to be the first Canadian jurisdiction to set up a human rights institution with a mandate based on international human rights standards.
Moderator: Ian Hamilton
Two major points emerged out of the session: (1) the lack of information and understanding regarding the international standards in Canada and (2) human rights commissions are in a unique position to mobilize action in Canada – they can draw in government and reach out to civil society.
Keynote Address by Max Yalden – “The Interdependence of Human Rights”
Madam Minister, Chief Commissioner, M. Ie President,
Thank you for the kind introduction; merci de vos mots d'introduction. And thank you for inviting me to be with you today; merci de m'avoir invité à participer à cette session aujour d'hui. I am always pleased to be back in my hometown, especially with so many old friends and colleagues.
I want to mention in particular the presence of Brian Burdekin. I first had the pleasure of meeting Brian in 1991, I believe, at the Paris Conference to which he referred this morning. That meeting did extremely valuable work in defining the nature of, and setting the standards for, effective national human rights institutions. Brian is still hard at it, promoting the cause of these institutions, and helping them to build more effective organizations.
I am, as I said, particularly happy to be with you today, because the theme of this conference – a "dialogue on social trends and international developments relating to human rights commissions" – is one that is particularly close to my personal and professional interests over a number of years. First as head of a national human rights institution, and now as a member of one of the major international human rights bodies. It is also one of the few occasions on which I have had the pleasure to attend a conference sponsored by a provincial human rights agency and an important Canadian NGO, both of them significant participants in the human-rights effort that I want to talk about today.
To begin with, let me emphasize one element of the human-rights picture that we all know about and accept, but perhaps tend to forget about from time to time in practice: the universality and particularly the interdependence of human rights. By this I mean not only the substance of the rights themselves but also the process designed to protect and promote them.
First, as to substance. It is past time to dispense with the old canard that these are no more than western-invented ideas, designed to set the world up in an image that suits us, regardless of what others may think. There may well have been some truth in this perception in 1945, when the UN Charter was signed, and when significant numbers of the world's population were not represented at San Francisco. It cannot have been the case at Vienna in 1993, when all states were present. And at Vienna it was stated quite unequivocally that "...human rights are universal", and that "it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all fundamental rights and freedoms".
This does not mean that of course that these rights are universally and consistently respected, or indeed that they are respected at all in some countries. We all know that they are often ignored in practice. But it does mean that they are accepted as principles, and that few, if any, states are prepared to challenge them directly.
Second, as to the machinery. There is, increasingly, a worldwide web of human rights institutions – international, regional, national, and at state or provincial, and even local levels. Of course, some of these agencies function more proficiently than others. One does not have to be in the international human rights business for very long before one hears the call to "reform" the UN human rights bodies, for example. And with cause, I might add. For that matter, one frequently hears that various Canadian human rights bodies need to be more effective. But the point is that these institutions do function for the common good, whatever their deficiencies. If we did not have them, we would doubtless have to invent them.
Moreover, taken together, they have jurisdiction over pretty well all the rights – from free speech to equality rights, to women's' rights, to the rights of the child – that we would want to see covered in any rights universe. Some more thoroughly than others, to be sure; some, quite obviously better in a country like this one than in others one can think of; but covered nonetheless.
Furthermore, the substance of rights and the machinery to protect them interact at all these levels in such a way as to support and reinforce one another internationally, nationally and within nation states. So that the Paris Principles, let us say, and the Vienna Declaration, and the International covenants and, in the Canadian context, the Charter, the federal Human Rights Act, and the Ontario Code and similar legislation in other provinces, must all be regarded as an interrelated, mutually supportive tissue of rights whose strength lies precisely in its world-wide, and, at the same time, its local character.
That in a nutshell is why the international human rights agreements to which Canada is a party are so significant, here at home, as well as on the international stage. Let me take a few minutes to develop that thought.
First of all, the international instruments – the UN Charter, the Universal Declaration, but especially the covenants, as binding treaties – give context and meaning to national legislation. The Canadian Bill of Rights, for example, and the Canadian Charter both reflect the thinking underlying the international instruments. The Ontario Code does so even more explicitly, with its direct reference, in its opening paragraph, to the "inherent dignity and the equal and inalienable rights of all members of the human family...in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations".
Furthermore, although there is of course no obligation in Canadian law to defer to international instruments, the courts have nevertheless frequently cited the covenants in interpreting the Canadian Charter. The former Chief Justice, Antonio Lamer, indicated in a speech a couple of years ago that, as of 1997, their research showed that the Supreme Court had referred in eighteen cases to the International Covenant on Civil and Political Rights. In his view, the Court had relied on the human rights treaties not only to "define the content of Charter rights", but to determine "whether or not a limitation on a Charter right can be justified". The Charter was thus to be understood as "part of the international human rights movement", and "Canada's international human rights obligations are relevant...because they reflect the values of free and democratic societies". And, I might add, precisely those societies with which Canada and Canadians like to compare themselves so favourably. In other words, unless one is to take the Jesse Helms view that nothinq that goes on outside one's own borders is of any consequence, these treaties, freely accepted by our several governments over the past fifty-plus years, do matter.
You will note, by the way, that I say our "governments", plural. It is of course the responsibility of the Federal Government to enter into treaties. But many of these engagements obviously touch on provincial jurisdiction, and cannot be implemented without provincial endorsement. Getting provincial consent in the first place through consultation – as was the case, for example, with the International Covenant on Civil and Political Rights – slows up the ratification process, as it does in other federations. But it means that everyone is on side... at least in theory if not always in practice. It also serves of course to reinforce the notion that these agreements are integral parts of the international-national fabric to which I referred a few moments ago.
Beyond the mutual and reciprocal reinforcement of shared values, the international accords also have had and continue to have a direct impact on human rights issues in Canadian law and practice. I will mention only a couple of examples to underline the point, both of them taken from the experience of the Human Rights Committee.
Many of you will recall the Lovelace case, in which an Indian woman lost her native status because she married a non-native man. The point of course was that, had it been the other way round – had it been a native man who had married a non-native woman – he would not have lost his status. This was in accordance with the Indian Act, as it was drafted at the time. The Committee found against Canada, and in due course the Act was changed to remove the discriminatory provision.
Second, the Ballantyne case raised the issue of the language of signs in Quebec. The Committee once again found against Canada, on the grounds that Quebec law violated Article 19 of the Covenant, guaranteeing the right of free speech. And once again the legislation in question was changed, to permit the use of English as well as French in such situations.
There are of course several other cases that have come to the Committee, some rather recent, I might add. My purpose in citing them in the context of today's meeting is not to point the finger at Canada or at any of our provinces. Our record is a good one, and if one sees Canadian cases before the Human Rights Committee, it is because Canadians know their rights, and have an active NGO and legal community to help them defend them.
The point is rather that these cases form part of that interlocking whole I have been talking about. For example, federal or provincial legislation is enacted in Canada, let us suppose; it is challenged before a human rights commission, again federal or provincial, or before the courts; if the complainant is persistent enough, it eventually fetches up before an international body like our Committee; there it is dismissed or upheld, as the case may be; and, if it is upheld, the decision is passed back to the domestic authorities, on the understanding that something will be done about it. Not because these decisions have executory force, as you all know: incidentally, it is revealing that, technically speaking, they are not even called decisions, but "views". Nevertheless, as I have suggested, they have considerable moral force, which again in a country like Canada has rarely been ignored.
In this kind of universe, it is clear that the deliberations of international bodies are of direct concern to the domestic authorities; and in the Canadian context that means as much the provincial authorities as the federal. Indeed, perhaps more, since on many human rights issues the provinces are closest to the interests and concerns of the average citizen.
Where does all this leave us?
In Canada, we are one of the few countries in the world with an aIl-embracing system of human rights protection:
- the Charter, applying to federal and provincial governments, and the creatures of government, via the courts;
- Canadian Human Rights Act, covering the federal public sector, and federally-regulated private sector, via the Canadian Human Rights Commission;
- provincial human rights codes, covering the provincial public and private sectors, via bodies like the Ontario Human Rights Commission;
- and, of course, the NGOs.
As to substance, Canada is also one of the few states where virtually all types of discrimination, as well as fundamental rights and political rights, are covered. Doubtless we need to look at other grounds, like social condition or source of income, which are less widely included in human rights legislation in this country, but on the whole I believe the breadth of coverage of human-rights law in Canada is the equal of that anywhere in the world. And I believe this gives us more of an interest than most in ensuring that the world-wide system is just as all-encompassing and embraces just as effective machinery as that with which we are familiar at home.
This is a very tall order. But it is not an impossible objective. The number of states parties to the covenants has risen considerably in the past few years (In the case of the International Covenant on Civil and Political Rights, for example, there were 87 parties in 1987, and 140 in 1997). Perhaps more important, in the reckoning of many states, the types of discrimination which are deemed unacceptable have expanded along with them. The number of national institutions has grown as well: obviously with varying degrees of effectiveness, but nevertheless more numerous and often more energetic and independent than some might imagine, as I think a number of us here can testify,
Will that process continue? Certainly not without help. And that is where the interlocking network emerges again. Without assistance, many states are simply not going to be capable of accepting human rights commitments, international or domestic. Others which perceive – rightly or wrongly, it does not matter – cultural differences that militate against them participating in the wider rights community, or believe that they are being set up by the Western world, will also need special consideration if they are going to be brought into the circle; and within that circle, to create or strengthen the machinery that is essential to bring a taste of reality to human rights principles endorsed by the international community. The sine qua non of effective defense and promotion of human rights, one cannot repeat too often, lies in improving the monitoring systems; and this in turn requires the entire human-rights community to act as one overarching force for progress toward universality and effectiveness.
The fundamental significance of this double perspective reminds me of a question one frequently hears as to whether certain international institutions – the European Union is a good example – should be "widened" or "deepened", Whether they should take more countries into the fold or strengthen the forces and mechanisms of integration among those which are already members of the club. However appropriate that debate may be in some political contexts, I think a dichotomy of this sort could only be damaging to all our interests in the worldwide human rights community, we need both breadth and depth.
We need to include more states, great and small, north and south, whatever their cultural, religious and political outlook. We need to embrace the broadest possible range of rights: fundamental rights, political rights, social rights, equality rights. We need to construct a framework in which each reinforces every other. Most important of all, in my estimation, we need to ensure as energetic a commitment as we possibly can to realistic, down-to-earth human rights institutions at the national and provincial level, if we are to create and promote the rights-oriented culture that I think everyone present today seeks to cultivate in humankind's garden. If we accomplish that much, we may indeed be able to look toward a brighter horizon than many of us would have supposed it possible to contemplate.
Thank you very much for your attention; merci de votre attention.
Session 3 – Domestic Obligations and the Role of Human Rights Commissions
Moderator: Yves Lafontaine
Mr. Lafontaine described the session and introduced the panelists.
Panelist: Professor Martha Jackman
In her presentation, Professor Jackman addressed the role that can be played by human rights commissions in implementing economic and social rights. She provided three sets of reasons why human rights commissions should play a greater role in this area: the interconnectedness of equality rights and social and economic rights, the institutional competence of human rights commissions, and the fact that courts have been reluctant to enforce social and economic rights. After outlining these reasons, Professor Jackman provided an account of the kinds of steps commissions can take to work towards the implementation of social and economic rights.
The fundamental interconnectedness between equality rights and social and economic rights principles
Professor Jackman noted that while this interconnectedness has been recognized internationally e.g. in General Comment No. 9, the failure in Canada to recognize this interdependence has been the subject of ongoing critique by international human rights review bodies. Indeed, the most critical human rights issues for the many of most disadvantaged groups in Canada involve social and economic rights, e.g., food, housing, poverty and unemployment – these are issues of systemic discrimination, which intersect with issues of race and gender among others. Canada has failed to address economic and social rights violations not because we cannot afford to do so, but because we choose not to do so due to a systemic bias against the poor.
Professor Jackman emphasized that human rights commissions possess a degree of institutional competence that makes them well placed to deal with social and economic rights issues. They are accessible, representative and have the ability to take on a pro-active role.
The reluctance of courts to enforce social and economic rights
According to Professor Jackman, courts in Canada have in general been unsympathetic to social and economic rights claims. The few successes that have occurred have been primarily at the Supreme Court of Canada level e.g. Eldridge v. British Columbia (Attorney General), and have been the result of a pre-existing human rights equality jurisprudence that courts have been able to rely on and which have created a comfort level for the courts. In other words, social and economic rights claims have been winnable as equality rights claims because of the work of human rights commissions in this area (as judges do not feel that they are venturing into a new area). Where established links do not exist between equality jurisprudence and social and economic rights claims, judges seem not to feel competent to adjudicate claims. Consequently, we will not be able to progress further until human rights commissions and tribunals have waded in to provide jurisprudential guidance for the courts.
Strategies for human rights commissions
Professor Jackman indicated a number of strategies human rights commissions can pursue in order to work towards the implementation of social and economic rights.
(i) re-interpretation of existing mandates
Professor Jackman suggested that an important step towards the protection of social and economic rights is for human rights commissions to adopt a more expansive interpretation of their existing mandates (as urged by the international Committees under the ICCPR and ICESCR). For example, the Eldridge case, which was a s. 15 equality rights case, could have been argued as a socio-economic rights case related to access to health care. The anti-discrimination and substantive equality guarantees under Canadian human rights statutes are equal to or better than what we have under the Charter. Increasingly, provinces are recognizing that multiple grounds of discrimination are legitimate bases for complaints. So by interpreting existing provisions of human rights legislation in a more systemic manner, commissions and tribunals can grapple with social and economic rights problems.
Professor Jackman discussed the Ontario case Irshad (Litigation Guardian of) v. Ontario (Minister of Health). The case involved a challenge to the government’s imposition of a three-month waiting period for new immigrants before they become eligible for OHIP benefits. For new immigrants with disabilities this becomes a permanent disentitlement as they must first pass the federal immigration medical exam. The case was unsuccessfully argued as an anti-discrimination claim based on new immigrant status. It could just as easily have been argued as a socio-economic rights claim based on access to health care, however, litigants are reluctant to do so as the courts have been so conservative in this area.
An important way in which commissions can expand their existing mandates is to look anew at some of the existing prohibited grounds within their codes. For example, in Ontario the ground of “receipt of public assistance” in the housing area could be interpreted much more aggressively. Discrimination based on sex can often be used to adjudicate social and economic rights claims. The Ontario Board of Inquiry decision in Kearney is an excellent example. The tribunal found that the imposition by landlords of minimum income criteria constituted sex discrimination. The Masse case, argued (unsuccessfully) before an Ontario court, could have been framed as a sex discrimination case as the social assistance recipients who were most adversely affected by the 20% cut to welfare rates were sole support mothers.
(ii) systemic reviews and public education
The parallel functions of human rights commissions contribute to their potential effectiveness in dealing with social and economic rights and enforcing international standards. Professor Jackman noted that the directives in General Comment No. 10 are applicable to provincial commissions as well as national human rights institutions. Commissions have the power to issue directives, the power to do systemic reviews and the ability to collaborate with other provincial and federal human rights commissions, as well as human rights bodies in other countries.
The public education function of commissions is an extremely important one. A public opinion survey, commissioned by the federal government in 1998, revealed the discriminatory attitudes of Canadians around issues of child poverty. This influenced the formulation by the federal government of its child poverty platform, which essentially punishes welfare parents. Courts have the same problem with negative attitudes. The only way to reverse this regressive trend in Canadian social welfare policy is through public education. The human rights commissions are best placed to do that effectively.
(iii) relationships with NGOs
Commissions can support the work of Canadian NGOs who have very little by way of resources and funding. With respect to international reporting, commissions can have a very large role in educating the public, assisting NGOs, lobbying governments during the pre-review stage and also in publicizing the results of reviews and helping NGOs implement the suggestions contained in the reviews in the post-review stage. We need institutions in Canada with the resources and the mandate to help domestic NGOs keep these issues alive.
(iv) access to government
Commissions may be able to have some input into the fiscal policy setting of the government. Commissions can attempt to influence the provincial Finance Minister in a way that NGOs simply cannot. Increasingly, social policy in Canada is being formulated through provincial/federal territorial agreements, such as the Social Union Framework, which are completely inaccessible to NGOs and ordinary Canadians. Commissions have some access to that process. Similarly, with international agreements, such as GATT and NAFTA, which have a substantial impact on human rights issues, the federal government does not consult NGOs, but it does consult provincial governments. Presumably, provincial human rights commissions have access to their provincial governments.
(v) pressure government to amend codes
Commissions can seek amendment of their legislation and can aggressively lobby their governments for broader mandates, in terms of both the scope of rights recognized (such as ‘social condition’) and expanded powers, e.g. the ability to conduct systemic reviews, direct systemic remedies, and participate in the monitoring of, or follow-up to, international reviews in the social and economic rights area. Commissions can argue that provincial governments must amend human rights laws, and if governments do not, they will be violating the Charter. There is a huge amount commissions can do in this area.
Professor Jackman and Bruce Porter have suggested a model amendment for including social and economic rights in human rights legislation that addresses concerns about institutional competence and the costs of recognizing social and economic rights as justiciable rights.
It was cautioned by Professor Jackman that more work by provincial human rights commissions is not a remedy for all social and economic rights violations experienced by Canadians. More needs to happen under the Charter, the Social Union Framework Agreement needs to be re-examined from this perspective, and the CHRA needs to be significantly amended to recognize social and economic rights. However, the role of provincial human rights commissions is to counter discriminatory majoritarian choices and tendencies in society. In the area of social and economic rights, provincial commissions are a good place to begin.
Panelist: Professor François Crépeau
Professor Crépeau presented to the group a discussion of the “foreigner” or “alien” as an important case study in human rights and the use of international standards for the understanding and resolution of internal human rights issues. The treatment of the “foreigner,” it was suggested, raises deep and fundamental issues concerning the extent to which domestic conceptions of human rights fail to apply to the most marginalized members of community.
Professor Crépeau noted that in all western countries, including Canada, foreigners constitute a significant percentage of the population. As a result of globalization and the consequent widening in the gap between development and wealth between north and south, there has been an increase in transboundary flows and irregular or self-selected immigration. Immigration policies from the north, however, have not expanded in response to these changing social dynamics. State authorities continue to retain the discretion to treat foreigners, especially irregular migrants, as they wish, reflecting the entrenchment of the basic paradigm of the international system based on territorial sovereignty, according to which immigration is a privilege and not a right.
Foreigners, especially irregular migrants, have no political base and often intersect with other vulnerable groups. They are at the margin of our legal and political system of protection of human rights. Through co-ordinated policies that criminalize irregular migration, governments have succeeded in making the irregular migrant into a dangerous person in the public’s perception. As such, public opinion is cautious, if not hostile, to refugees and asylum-seekers and governments use this to justify radical measures against foreigners.
Examples of such measures include militarized borders, detention upon arrival in ‘international zones’ of airports where NGOs and lawyers are not permitted access to the foreigner, pre-removal detention, and forcible medication of people being removed. As well, there is no appeal or judicial review as of right for decisions about refugee status, despite the fact that these are decisions where the life, liberty and security of the person is at risk. Another example is the issue of deportation of foreign parents of Canadian born children. Questions of discrimination, also arise in the non-recognition of foreign credentials, and related policies which suggest that we should regionalize immigration by forcibly locating immigrants in different parts of the country, violating their right to move freely.
Professor Crépeau suggested that it is time human rights commissions begin to challenge the political leeway given to governments with respect to how they treat foreigners and irregular migrants. We should force governments to recognize that human rights go beyond the rights of citizens and quasi-citizens and are based on international human rights principles available to anyone in this country. Professor Crépeau noted that international human rights implementation bodies have rendered decisions on how countries treat foreigners. Canada has even been condemned by the UN Torture Committee for its treatment of an asylum seeker.
According to Professor Crépeau, the practice of our government towards migrants shows the vulnerability of our human rights system. The way we treat migrants illustrates important aspects of how we consider all the marginalized in our society. Human rights commissions have hitherto been too timid in trying to challenge this.
Panelist: Brian Burdekin
Mr. Burdekin provided a commentary on the issues raised by Professors Jackman and Crépeau, and by Maxwell Yalden in the Keynote Address. According to Mr. Burdekin, the issue raised by Professor Jackman and by Mr. Yalden is an issue of legitimacy. There is a general feeling that federal and provincial human rights commissions can, should and must be more involved in these fundamental issues, including social and economic rights and the way they interact with civil and political rights.
According to Mr. Burdekin, the synthesis between economic and social issues together with institutions that have the mandate to protect and promote civil and political rights is very real for several reasons. First, Canada was present when the international community drafted the 1948 Universal Declaration and gave birth to the two covenants (the ICCPR and the ICESCR) and Canada ratified them. Secondly, presumably Canada negotiated with the provincial governments before ratifying these treaties. Therefore, the provincial governments cannot now say that the treaties don’t bind them. The process of treaty ratification is meaningless if provincial governments don’t participate in implementing them. Finally, in 1993, every government agreed on the interdependence and universality of all rights. If countries talk about civil and political rights and ignore social and economic rights, they miss the point and, as a result, merely stick band-aids on problems that emerge from a broader context.
Mr. Burdekin stated that in Australia, courts were at first very hostile to human rights commissions. However, after a time, judges were asking the commissions to intervene in cases before the courts. Also, after the five-year investigation into the situation of persons with mental disabilities, the human rights commission went to leaders of the legal profession and pointed out the situation of these persons, including the fact that there were substantial problems in the legal system itself. As a result, the profession agreed to take cases related to mental illness on a pro bono basis.
Mr. Burdekin cautioned that human rights practitioners must recognize that international human rights are not coextensive with legal behaviour. Very often, human rights violations can occur through omission, neglect and indifference and not through unlawful acts.
Finally, in response to Professor Crépeau’s presentation, Mr. Burdekin noted that international treaty obligations do not refer to the rights of “citizens” but rather to “all people”. Therefore, countries should not treat aliens differently. It is precisely for these vulnerable people that our human rights institutions should exist. As well, the rights of children are engaged by migration and immigration issues, particularly where deportation is involved. The Australian commission took such a case to the High Court and successfully argued, based on the Convention on the Rights of the Child, against deportation of the parents. In Australia, until the human rights commissions became involved, the bureaucracy did not take such issues into account.
Mr. Burdekin concluded by reiterating that there needs to be greater involvement of human rights commissions both at the provincial and national levels, and a greater recognition of the synthesis of the different types of rights. This finds expression when speaking out about the rights of the homeless, the rights of children and the rights of foreigners.
Group discussion subsequent to the presentations addressed a number of key issues, including the nature of refugee rights, the proper relationship between human rights commissions and government, the usefulness of the concept of ‘social condition’ in understanding poverty issues, and the role played by provincial governments in the ratification of the ICCPR and the ICESCR. Substantial discussions of the implementation of the ICESCR, the accreditation of skills and qualifications held by newcomers to Canada, and religious discrimination rounded out the session.
Human rights commissions, including provincial commissions, should be more active with respect to refugee rights. Provincial commissions tend to think that immigration is a federal issue and that they should decline to intervene. However, there are a number of issues for newcomers that do fall under provincial jurisdiction, for example, access to health, including health insurance, legal aid, education and access to trades and professions.
The Relationship between Human Rights Commissions and Government
It was noted that commissions do enjoy a measure of access to government policy by virtue of being a public institution. However, commissions also need to have autonomy from government. The challenge is to balance the need for access with the need to remain autonomous. With respect to government platforms that focus on violations of human rights standards, for example electoral platforms that promise “poor-bashing”, human rights commissions have a role and must respond aggressively to counter the rhetoric of government.
‘Social Condition’ and Poverty Issues
A participant who works in a densely populated community with a high concentration of poverty described some of the challenges faced by the community. These include the loss of banking services, the treatment of former psychiatric patients, the treatment of homeless children and targeted policing which aims to create an environment which is better for business but not for people. It was noted that the term ‘social condition’ discussed in this conference has provided a new framework for the work of the organization, as most of the discrimination that occurs in the community is mostly on the basis of social condition.
Another participant noted that, in addition to systemic racial issues, social and economic position is a profound issue in the criminal justice system because it is easy to criminalize the poor. Brian Burdekin commented that in Australia, the political instinct was to see homelessness as a law and order problem and the solution to be a “cleaning up” of the streets. The legal system criminalized the existence of vulnerable persons rather than behaviour. If human rights commissions do not speak out, responses from the political level and the courts tend to be negative. This is counterproductive and prevents these issues from being addressed.
Provincial Government Involvement in the Ratification of the ICCPR and the ICESCR
With respect to the issue of provincial government involvement in the ratification of the ICCPR and ICESCR, the first correspondence between the federal government and the provinces dates back to1969. The provinces were asked whether they would give their assent to the Covenants and whether their legislation was in conformity with the Covenants. At a federal/provincial conference in 1975, all provinces assented to the ratification of the covenants. At that conference, they agreed to a protocol of understanding for ratifying human rights treaties and for implementation of treaties. The document is still operative and came up for questioning when the Convention on the Rights of the Child was being negotiated, as one province did not give its assent to ratification. After a lot of consultation, the federal government decided that it could proceed without the assent of one province.
Therefore, the provinces, both in written letters and at the 1975 conference, all gave their assent to the ratification of the ICCPR and ICESCR. They cannot claim that they were not involved or did not have a say in the matter.
Implementation of the ICESCR
A difficult issue for commissions is how to implement the provisions of the ICESCR. We do not need to start from scratch as the UN Committee on Economic, Social and Cultural rights has, through General Comments, made suggestions for human rights commissions and how they can implement the rights domestically. If we look at issues that the Canadian public is concerned about, such as deterioration of health care, access to education and homelessness, the Committee has said that declining standards are a violation of human rights. We can take a human rights analysis and look at cutbacks to social programs and ask if they are affecting the basic right to equal access. For example, even if we don’t precisely know what the progressive realization of the right to housing means, we know that a 20% cut to social assistance rates should be a justiciable rights violation.
Governments are being forced to become more responsive as NGOs, academics and human rights commissions are increasingly coming before the international Committees including the UN Committee on Human Rights. Canadian human rights commissions should more vigorously engage in this international debate.
With respect to justiciability, the principles are there, but the challenge is to convince courts to apply the principles less selectively. It has been the objective of the government of Canada to make sure justiciability is reduced for refugees and asylum-seekers. This has been achieved through “international zones” where these people have no access to NGOs and through a lack of access to effective legal representation. For example, in Quebec, lawyers receive only $200 to prepare refugee claims. The intersection of immigration issues and human rights issues is almost never discussed.
The ability of people to move with their skills and qualifications is important. The issue of access to trades and professions is an important one in Ontario. Immigrants come to Canada thinking they are welcome here only to find out when they get here that they are not considered valuable additions at an economic level. There is no accreditation for them and no jobs, as many employers want ‘Canadian experience’. There is no co-ordination between the federal and provincial governments, and the provincial governments say the problem with accreditation must be dealt with through the self-governing trades and professions.
The issue of freedom of worship and religious discrimination was raised. For example, there are a number of outdated municipal bylaws that make it difficult to build houses of worship. If the purpose of human rights legislation is redefined to move away from a traditional “negative rights” or anti-discrimination perspective, and towards a more substantive equality rights perspective, it will be better able to deal with issues such as municipal regulations that make it systemically more difficult to construct houses of religious worship. Another option, and one that was employed in Australia, is to convince governments to annex as a schedule to human rights legislation the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. This could be done with other international instruments as well, i.e. making them schedules to human rights legislation and defining violations of the instruments as human rights violations.
Session 4 – Strategies for Human Rights Commissions and Priorities for Follow-up
The session identified the following ideas, strategies and priorities for follow-up by Canadian human rights commissions:
- Return to the original memorandum of understanding approved by the federal and provincial governments at the 1975 conference as a policy tool for the provinces to play a more active role in the implementation of covenants and other treaties in Canada. Another tool for the provinces to use is the Continuing Committee of federal, provincial and territorial civil servants responsible for human rights in Canada.
- Facilitate meetings between intergovernmental people and NGOs to look at the reports of UN review bodies, for example by hosting a day-long meeting where ministerial staff and NGOs discuss the report.
- Facilitate meetings between intergovernmental representatives and NGOs before the preparation of Canada’s future reports. For example, at present many experts are focusing on the report under the Convention on the Elimination of All Forms of Racial Discrimination.
- Review each human rights code, clause by clause, to determine the capacity to incorporate norms set out at the international level. If international principles cannot be incorporated, the reason should be identified.
- Review legislative mandates and re-examine each section of human rights legislation to see if it can be interpreted to deal with social and economic rights.
- Deploy a staff person to look at international best practices as between human rights commissions. The Office of the High Commissioner might be able to assist any organization that undertakes such a project with information and contacts.
- Use public policy and education provisions of human rights statutes (for example, s. 29 in the Ontario Human Rights Code) to pick an issue (preferably one that commands public support) and take a strong position on it.
- Look for methods to amplify human rights commissions’ mandates and jurisdictions even in the absence of legislative amendments. Given that they have ratified international instruments, governments cannot object to the relevant human rights bodies annexing the international covenants to their acts.
- Pay greater attention to fundamental human rights issues that tend to escape the attention of human rights commissions, e.g. the that fact children go to school without a meal, lack of decent housing etc. Commissions must capture these fundamental issues, otherwise cutting edge work they may do in other areas will not be very credible.
- Change the emphasis to a substantive equality perspective, which focuses on systemic discrimination as opposed to an exclusively complaints-based model.
- Challenge misconceptions about those who are most marginalized and disadvantaged in society, such as the poor. For example, in the Kearney case misconceptions about persons on social assistance (i.e. that they do not pay their rent) were successfully challenged before a Board of Inquiry.
- Examine measures, such as direct access to a tribunal, Alternative Dispute Resolution and the Small Claims Court model, which will increase the accessibility of human rights commissions to marginalized groups and individuals.
- Educate Canadians about our international commitments and some of the social problems in Canada.
- Use international covenants more in human rights commissions’ policy development and litigation activities. The policies state how commissions will be interpreting their legislation and make it clear that the interpretation will consider international standards. International covenants can even be attached as appendices to policies and plain language documents.
- Review how human rights commissions develop policy. Historically, it has largely been based on which wheel squeaks the loudest, however since groups that are most marginalized may not come forward, this approach may not be ideal.
- Consider initiating systemic investigations without having to rely on complaints coming forward.
- Intervene more often in cases, even if they are not cases that fall strictly within human rights codes (e.g. the Irshad case). The number of intervenors, and who the intervenors are, matters to courts. NGO intervenors may not be taken as seriously as human rights commissions as NGOs may be seen as advancing an agenda while commissions are seen as more neutral and institutional. Commissions should not just wait until a matter reaches the Supreme Court of Canada before intervening as lower courts often have a greater need for the assistance of intervenors.
¨ Get involved in the process of developing a national human rights action plan. In the Vienna Platform for Action, each State committed itself to developing a national human rights action plan. In the context of Canadian federalism, there is no reason why that sort of process should not take place at a provincial level. This is a valuable opportunity to engage civil society and the relevant government ministries in a discussion of what are the human rights issues in the country, what are the challenges and how do we establish our priorities. Federal and provincial commissions can try to move this along, as it is an obligation that Canada has undertaken and has yet to fulfil.
 The final report of the Panel, Promoting Equality: A New Vision, has been released and is available on the Panel’s Web site: www.chrareview.org.
 In May 2001, the Standing Senate Committee on Human Rights was constituted. It held hearings and in December 2001 released a report entitled Promises to Keep: Implementing Canada’s Human Rights Obligations, online: www.parl.gc.ca/37/1/parlbus/commbus/senate/com-e/huma-e/rep-e/rep02dec01....