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OHRC Comment regarding Canada’s upcoming 21st and 22nd Reports to the UN Committee on Elimination of Racial Discrimination

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Ontario Human Rights Commission
Comment regarding Canada’s upcoming 21st and 22nd Reports to the
UN Committee on Elimination of Racial Discrimination

July 16 2015

Canada's combined 21st and 22nd periodic Reports on the International Convention on the Elimination of Racial Discrimination (ICERD)[1] are due for submission in November 2015 to the UN Committee on the Elimination of Racial Discrimination (CERD).

The Ontario Human Rights Commission (OHRC) oversees Ontario’s Human Rights Code[2] and has a mandate consistent with the ‘Paris’ Principles relating to the Status of National Institutions.[3] In this regard, the OHRC provides periodic input to government and to UN human rights treaty bodies regarding Canada’s reporting obligations.

Among other groups, Ontario’s Human Rights Code provides for the protection of Indigenous peoples and racialized communities from discrimination in employment, housing, services and other areas, based on ancestry, race, colour, ethnic origin, place of origin, citizenship, creed, sex and other grounds. The Code applies to both government and private sectors. The Canadian Charter of Rights and Freedoms,[4] as well as international human rights instruments like the ICERD and the UN Declaration on the Rights of Indigenous Peoples,[5] help inform how Ontario’s Code is interpreted and applied. The Code generally has primacy over other Ontario laws.

Ontario’s Ministry of the Attorney General has asked the OHRC to provide input on the following two questions in regards to Canada’s upcoming Reports. The OHRC’s comments below cross reference the relevant Concluding Observations issued by the CERD at Canada’s last appearance in February 2012[6] as well as the relevant articles of the ICERD.

  1. Have there been any recent developments with respect to anti-racism/non-discrimination or employment equity legislation, policies, programs or best practices in your jurisdiction?

Racial profiling and arbitrary police stops: Concluding Observation 7[7] and 11;[8] Articles 2 and 5

For some time now, the OHRC has been calling for changes to the Toronto Police Service’s policy, procedures and practices on street checks called “carding” – where, more often than not, people are arbitrarily stopped in part because of their skin colour, questioned and asked to identify themselves to police without reasonable justification.[9]

Statistics show that Black people were stopped more often – and were much more likely than White persons to face stops that resulted in no arrest or charges being laid.[10] This practice is corrosive and demeaning – in the OHRC’s opinion, it amounts to racial profiling and is illegal.

A Toronto Police Services Board (TPSB) 2014 policy addressed racial profiling directly, recognizing obligations under the Canadian Charter of Rights and Freedoms and Ontario’s Human Rights Code. Community groups and the OHRC generally supported the 2014 policy. However, the TPSB backed off its commitment in March 2015 but then reinstated the 2014 policy approach in June 2015 following significant public backlash.

To prevent racial profiling, the OHRC, legal experts and members of the community have said that police policy and procedures for street checks must:

  • Guide and limit officer discretion to stop and question people
  • Require that officers tell the people they stop about their right to leave and not answer questions, as much as possible in the circumstances
  • Demonstrate effective monitoring and accountability including race-based data collection to identify racial bias
  • Provide transparency through receipts; and
  • Immediately purge carding intelligence data, already collected, that lacks a non-discriminatory explanation.

The OHRC welcomed the TPSB’s renewed commitment to this approach.[11] Returning to the 2014 Policy could help direct the Toronto Police Service to only stops people for street checks when there is a legitimate, non-discriminatory reason to do so. The Policy is far from perfect but it reflects a great deal of work by members of the community, advocates, organizations and the Board and Service to work towards ending racial profiling.

The OHRC also welcomes the Ontario government’s recent announcement that it will move to standardize police street checks and will establish rules to ensure these encounters are without bias.[12] The Government has committed to consulting with the community and organizations including the OHRC.

Police use of force: Concluding Observations 7 and 11; Articles 2 and 5

Concerns have been raised for years that police are more likely to use force in their interactions with African Canadians and Indigenous peoples. For example, a report published by the Urban Alliance on Race Relations revealed that Black communities in particular felt that they were “disproportionately vulnerable to police violence” and that racialized people are disproportionately likely to be killed by the police.[13]

The OHRC’s own 2003 inquiry into racial profiling reported similar findings[14] and so have decisions from the Human Rights Tribunal of Ontario and the courts since then.[15]

In 2014, the OHRC made a submission to the Ontario Ombudsman’s Investigation into the direction provided to police by the Ministry of Community Safety and Correctional Services (MCSCS) for de-escalating conflict situations.[16] The OHRC recommended that MCSCS should provide Ontario police services with appropriate direction and officers should receive training in human rights and bias, de-escalation, sensitivity and de-stigmatization in use of force. The training of officers should be supported by appropriate police service policies and procedures. 

Tribunals and court decisions are identifying similar concerns. In Nassiah v. The Regional Municipality of Peel Police Services Board, the Human Rights Tribunal of Ontario Tribunal said: “if officers are not appropriately trained on what may constitute racially biased profiling or investigation, they may consciously or subconsciously engage in this form of discriminatory conduct.”[17]

In two recent decisions involving three cases of alleged racial discrimination by police, the Human Rights Tribunal of Ontario found that human rights claimants had the right to pursue officer misconduct complaints under Ontario’s Police Services Act and Human Rights Code. The African Canadian Legal Clinic, the Metro Toronto Chinese & Southeast Asian Legal Clinic, the South Asian Legal Clinic of Ontario and the OHRC intervened in the cases.[18]

The OHRC is seeking to intervene in the “Neptune 4” case alleging inappropriate use of force, being heard by the Toronto Police Service Disciplinary Tribunal.[19] The case was launched after four Black teens were arrested at gunpoint by two Toronto Police officers in 2011 on their way to a Pathways to Education tutoring session. Video surveillance shows one of the teens being punched and pulled to the ground. Ontario’s Office of the Independent Police Review Director found that charges of officer misconduct were warranted. 

The OHRC’s 2014 submission to the Ombudsman’s Investigation also recommended expanding data collection about the circumstances related to police use of force province-wide given that there is very little information currently available in Canada. One study suggested that both Indigenous peoples and African Canadians were “highly over-represented” in independent investigations into circumstances surrounding serious injury or death to civilians involving police by Ontario’s civilian law enforcement watchdog agency.[20]

Migrant workers – police DNA sampling: Concluding Observation 23;[21] Articles 2 and 5

In December 2013, Justicia for Migrant Workers (J4MW), a non-profit group that promotes the rights of migrant farm workers, filed a complaint with the Ontario Independent Police Review Director (OIPRD) alleging that the Ontario Provincial Police (OPP) engaged in racial profiling when requesting DNA samples from migrant workers near Vienna, Ontario as part of a sexual assault investigation in October and November 2013. It is alleged that the police collected DNA samples from approximately 100 “Indo and Afro-Caribbean” male migrant workers who did not match the suspect description apart from their dark skin colour.

In March 2014, the OIPRD announced that it was conducting a systemic review of the OPP’s practices for obtaining voluntary DNA samples from specific groups.

In April 2014, the OHRC made a submission to the OIPRD’s Systemic Review.[22] The submission provided information about racial profiling and how to identify it; explained why the OPP’s DNA collection from migrant workers appeared to be consistent with racial profiling, and how police DNA collection may disproportionately affect racialized and marginalized groups; and made recommendations on how the OPP can address racial bias in its policing.

Institutional change in policing: Concluding Observations 7 and 11; Articles 2 and 5

In order to have a real impact, the OHRC recognizes the need to address racial profiling in policing through structural, policy and procedural change and training.

For some time, the OHRC has undertaken multi-year organizational change agreements with several law enforcement agencies including Toronto Police Services.[23] Currently, the OHRC is working with Windsor Police Services to address racial profiling and other forms of discrimination in employment and service delivery.[24] The OHRC also delivers training to police officers across the province in partnership with the Ontario Police College.

To support these initiatives, in 2011, the OHRC published Human rights and policing: creating and sustaining organizational change, a guide for police services.[25]

In 2012, the OHRC reached a settlement with the Ottawa Police Services Board that required Ottawa Police Service to collect race-based data on traffic stops for at least two years.[26] The Traffic Stop Race Data Collection Project began in June 2013. The OHRC remains closely involved in efforts to ensure meaningful analysis and use of the data to address and prevent racial profiling in policing, now described as the largest study of its kind in Canadian policing.[27]

Institutional change in prisons: Concluding Observation 11; Articles 2 and 5

The OHRC continues its work with the Ministry of Community Safety and Correctional Services (MCSCS) and the Ministry of Government and Consumer Services (MGCS) under a human rights institutional change agreement.[28] This long-term project, which arose from the settlement of a long-standing discrimination complaint by an Indigenous jail guard, has now been extended to 2017.

The MCSCS has done critical planning and begun to put in place some major initiatives including reviewing training curricula, creating criteria and strategies for developing and reviewing policies and programs from human rights and Indigenous perspectives. The OHRC has also worked on plans for evaluating outcomes.

Foreign trained worker requirements: Concluding Observations 16[29] and 19;[30] Article 5 (e) (i)

In 2013, the OHRC released its Policy on removing the “Canadian experience” barrier.[31] The OHRC’s position is that a strict requirement for “Canadian experience” is prima facie discrimination and can only be used in very limited circumstances. Such requirements can negatively affect individuals because of their place of origin, ethnic origin, citizenship and other grounds.

During the OHRC’s consultation, many individuals and front line community groups reported that employers use unjustified Canadian experience requirements to reject applicants with foreign work experience or training. The OHRC also heard that internationally trained professionals experience many barriers to finding jobs including regulatory bodies and employers not recognizing foreign credentials and experience.[32] The Policy says that governments, regulatory bodies and others have a role to play to identify and remove barriers.

The OHRC has been working with Ontario’s Office of the Fairness Commissioner to educate regulatory bodies about their human rights obligations. The OHRC has also reached out to employers, human resource professionals and community organizations. The OHRC has also written to domestic and international accounting bodies[33] and has advised government on pending change to accounting professions legislation.[34]

Indigenous peoples impact and benefits agreements: Concluding Observation 19; Article 5 (e) (i)

In 2014, the OHRC released a statement on designating employment and contracting provisions in Impact and Benefit Agreements (IBAs) as permissible special programs under Ontario’s Human Rights Code.[35] IBAs are becoming an industry standard for resource development projects that are located on or impact Indigenous people’ traditional lands and rights. The agreements often contain employment and contracting provisions that give priority for training, hiring and contracting to Indigenous peoples.

Employment and contracting provisions in IBAs can offer a meaningful response to the historical inequality, discrimination and disadvantage that Indigenous peoples have and continue to face. The OHRC supports developing and implementing these provisions as part of IBAs, where Aboriginal governments choose to enter into them, to promote substantive equality for Indigenous peoples in Ontario. The OHRC will be consulting with Indigenous communities and other groups on how best to develop and implement IBAs.

Female migrant agricultural worker hiring: Concluding Observations 16 and 23; Article 5 (e) (i)

In 2014, the OHRC released a Position Statement – Discrimination on the basis of sex in recruitment for the Seasonal Agricultural Workers Program (SAWP).[36] It had come to the OHRC’s attention that employers in Ontario are hiring almost exclusively men to work on their farms under the SAWP. Research shows that each year, less than 4% of the workers that come to Ontario through the SAWP are women.

Ontario’s Human Rights Code applies to Ontario employers, including farmers who recruit temporary foreign workers through federal programs as well as administrators and recruiters who operate in Ontario. An employer cannot use an employment agency or administrator to hire employees based on preferences related to sex or other Code grounds unless they can show these are genuine job requirements.

Police record checks: Concluding Observations 16 and 19; Article 5 (e) (i)

The Ontario government has introduced a Bill[37] that if passed would legislate standards for police record checks based on guidelines[38] developed by the Ontario Association of Chiefs of Police. The OHRC worked with the OACP to develop the initial guidelines[39] after learning about the negative effect police record checks have on groups protected under Ontario’s Human Rights Code, particularly Indigenous peoples, racialized communities and people with mental health and addiction disabilities. The OHRC provided advice to government in April 2015.[40] The proposed legislation, introduced in June, would help to address some of the barriers these groups experience in accessing employment, housing and other services. 

Groups like the Canadian Civil Liberties Association and the John Howard Society of Ontario support legislating standards for police record checks and are also calling for complementary changes to Ontario’s Human Rights Code to bring a better balance to public policy goals for human rights, privacy, offender rehabilitation, crime prevention and public safety.[41]

A police record check is often used as part of a screening process for employment, volunteering, and when applying for a professional licence, and sometimes in rental housing.

Poverty and adequate housing: Concluding Observations 7, 16 and 19; Article 5 (e) (iii) and (iv)

Members of Indigenous and racialized communities have historically experienced socio-economic disadvantage and continue to face prejudice, discrimination and harassment when trying to access housing accommodation. They report that private sector landlords refuse to rent to them or they face discrimination and harassment as tenants based on ancestry, ethnicity, race or place of origin, among other grounds. These groups are also more likely to be in need of affordable housing. Community support advocates and organizations have raised concerns with the OHRC that the lack of affordable and suitable housing is a systemic social barrier across Ontario.[42]

Data from Statistics Canada published by the Canadian Human Rights Commission[43] show that the proportion of Indigenous adults in low-income status is much higher than that of non-Indigenous adults. For example, 53.4% of Indigenous women age 65+ are in low-income status compared to 30.9% of non-Indigenous women age 65+. The data also show that 20.4% of Indigenous households in Canada are in core housing need compared to 12.4% of non-Indigenous households.

In 2013, the OHRC made a submission to the Government’s review of Ontario’s Poverty Reduction Strategy.[44] Affordable housing is an essential element of the Strategy. The OHRC recommended breaking down the Strategy’s success indicators, including the housing measure, to show the impact of the Strategy on immigrants, women, lone mothers, people with disabilities, Indigenous peoples and racialized groups who disproportionally experience poverty. The Government’s 2014 Poverty Reduction Strategy reflects in part the OHRC’s recommendation by committing to measure the poverty rate of these vulnerable groups.

At the same time, public concern has been raised through the media that the Government did not meet its target for reducing poverty of children and their families by 25% during the five years of its first strategy. There is also concern that the Government has not yet set a target for its new focus on homelessness.

Earlier this month, the OHRC made a submission[45] to the government’s consultation on updating Ontario’s Long-Term Affordable Housing Strategy.[46] The consultation guide appropriately recognizes that an updated Strategy should support the diverse needs of Ontarians including Indigenous peoples. The OHRC recommended that the Ontario government report yearly on, among other measures, the poverty rate, the rate of core housing need (unaffordable, inadequate, unsuitable) and progress towards a homelessness reduction target for immigrants, Indigenous peoples and racialized communities, among other groups.

Child and Family Services: Concluding Observations 7, 16 and 19; Article 5 (e) (iv)

Ontario’s Child and Family Services Act (CFSA)[47] governs many of the province's programs and services for children and youth, including welfare, youth justice, developmental services, residential services, community support, Aboriginal child and family services, and adoption.[48]

One of the stated purposes of the CFSA is "To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family."

The Métis Nation of Ontario reports that children's aid society workers routinely fail to ask about Aboriginal identification, and even if they do ask, the client's cultural identity as Métis is usually then ignored. Workers equate "native" or Aboriginal identity with First Nations only. This appears to be contributing to the lack of appropriate Métis-specific recognition and referrals for Métis involved in the child welfare system, and to perpetuating systemic discriminatory treatment toward Métis.[49]

The Aboriginal Advisor's report on the status of Aboriginal child welfare in Ontario[50] and media reports[51] have also raised concerns about insufficient funding and lack of culturally appropriate services, leading to Indigenous families falling between the cracks and more Indigenous children in the care of the state.[52]

In its 2012 submission to the UN Committee on the Rights of the Child, the African Canadian Legal Clinic (ACLC) raised concerns about the overrepresentation of African Canadian youth and children in state care.[53] The media has also reported on the overrepresentation of black children living in foster care and group homes, and the ACLC and the Jamaican Canadian Association say racial profiling is a factor.[54]

In its submission[55] to Ontario’s 2014 review of the CFSA, the OHRC made a number of recommendations including:

  • Amending terminology in the CFSA to be more inclusive of First Nations, Métis and Inuit peoples
  • Amending the CFSA to recognize, in addition to cultural, religious and regional differences, that respect for racial, ethnic, linguistic and gender identities are also in the best interests of the child
  • Monitoring the application of the CFSA, including collecting data, and reporting on the extent that child and family services are separating Indigenous and racialized children from their family environment, or otherwise not meeting their needs
  • Amending or interpreting the CFSA to reflect that children should be placed in services and families affiliated with, or culturally sensitive to, their religion or culture, whenever practicable
  • Amending or interpreting the provisions of the CFSA related to the child’s right to consent and to be heard, to respect and/or reflect the child’s identity and needs related to creed, race, ethnicity and other protected grounds under Ontario’s Human Rights Code
  • Reviewing the CFSA and its application to make sure inadequate housing or poverty is not a stand-alone factor for considering whether the child’s well-being is at risk.

Violence against Indigenous women and girls: Concluding Observation 17;[56] Article 5 (b)

A Royal Canadian Mounted Police (RCMP) 2014 report showed that 1,017 Aboriginal women and girls were murdered between 1980 and 2012.[57] The homicide rate was approximately 4.5 times higher for Aboriginal women than other women in Canada.[58] An update to the report shows that as of April 2015, for all police jurisdictions in Canada, there were 174 missing Aboriginal female cases.[59] This represents 10% of the 1,750 missing females reported on the Canadian Police Information Centre (CPIC), while Aboriginal women make up approximately 4% of the female population in Canada.[60] Amnesty International Canada[61] and research from the Native Women's Association of Canada have reported similar findings.[62]

In March 2015, the UN Committee on the Elimination of Discrimination against Women released its Report of the inquiry concerning Canada in regards to missing and murdered Indigenous women.[63] The Committee is concerned that, while the focus of the State party is on improving the response of the justice system and therefore on improving investigations, prosecution and punishment of perpetrators, the State party fails to specifically address the issue of missing and murdered Aboriginal women, by properly taking into account its socio-economic root-causes and its link with the wider issue of violence against Aboriginal women.[64] Among its recommendations, the Committee called for promoting the use of human rights legislation by Indigenous women as a tool to combat discrimination and acts of violence.[65]

In its Final Report released in June,[66] Canada’s Truth and Reconciliation Commission, remarked that: “More research is needed, but the available information suggests a devastating link between the large numbers of missing and murdered Aboriginal women and the many harmful background factors in their lives. These include: overrepresentation of Aboriginal children in child-welfare care; domestic and sexual violence; racism, poverty, and poor educational and health opportunities in Aboriginal communities; discriminatory practices against women related to band membership and Indian status; and inadequate supports for Aboriginal people in cities. This complex interplay of factors—many of which are part of the legacy of residential schools—needs to be examined, as does the lack of success of police forces in solving these crimes against Aboriginal women.”

In 2013, the Canadian Association of Statutory Human Rights Agencies (CASHRA), of which OHRC is a member, released a motion calling for the Government of Canada to work with Indigenous peoples' organizations to develop and implement a national action plan.[67] A national action plan should focus urgent attention on addressing and preventing the root causes of violence against Indigenous women and girls, including poverty and systemic discrimination. It further called on the Government to establish an independent and inclusive inquiry into missing and murdered Indigenous women and girls in Canada.

In March 2015, the Government of Ontario announced its Action Plan to Stop Sexual Violence and Harassment.[68] The Action Plan says that a Joint Working Group on Violence Against Aboriginal Women is developing a long-term strategy to end violence against Aboriginal women. The Action Plan also calls on the federal government to support the National Aboriginal Organizations’ call to establish a national public inquiry into missing and murdered Aboriginal women and girls in Canada.[69]  

  1. Have any consultations taken place in Ontario with civil society, ethno-cultural communities and/or Aboriginal organizations related to combating racism and racial discrimination?

OHRC racial profiling consultation and pending policy: Concluding Observations 16 and 19; Article 5

In the coming months the OHRC will begin work on a full Policy on preventing racial profiling that will help organizations meet their responsibilities under the Human Rights Code.[70] To support its research and the development of the Policy, the OHRC has launched an online survey on racial profiling and a request for papers for an upcoming Policy dialogue on racial profiling.[71] The OHRC’s work will also take a closer look at the effects of racial profiling on Indigenous peoples across Ontario.

Dialogue between Indigenous peoples and other racialized communities: Concluding Observations 17 and 19; Article 5

In November 2013, the OHRC co-organized a forum, “From Remembrance to Reconciliation,” along with community organizations representing various communities of colour for a day of dialogue to build solidarity with the Indigenous communities.[72] The Chief Commissioner of Truth and Reconciliation Commission and the former Chief of the Assembly of First Nations spoke as well. Participants reflected on how their own histories shaped their understanding of violence, oppression, and racism, the stereotypes they learned about Indigenous peoples in Canada, and the challenges and opportunities of building alliances together.[73]

In a recent statement marking June 21st National Aboriginal Day in Canada, the OHRC remarked that the recent report of the Truth and Reconciliation Commission makes it painfully clear that one day is not enough. The OHRC acknowledged its responsibility, in cooperation with others, to help promote and protect the human rights of Indigenous peoples in Ontario. The OHRC highlighted its recent outreach activities with Indigenous communities in Sioux Lookout, Kenora, Thunder Bay, Ottawa and Sault Ste. Marie.[74]

Ontario’s permanent roundtable on violence against women: Concluding Observation 17;[75] Article 5(b)

The OHRC is a member of the Action Plan Advisory Roundtable and continues to advise the government and work with community partners to ensure that action is taken to stop sexual harassment and sexual violence including violence against Indigenous women and girls.

The OHRC has a long history of addressing these issues from an intersectional perspective. It’s Policy on preventing sexual and gender-based harassment, updated in 2013, recognizes that sexuality is sometimes intertwined with racism.[76] People may hold stereotypical and racist views about someone’s sexuality based on their ethno-racial identity and these views may be behind some forms of sexual harassment. The Human Rights Tribunal of Ontario has made similar findings.[77]

Ontario’s proposed police record checks legislation: Concluding Observations 16 and 19; Article 5 (e) (i)

During the Ontario government’s recent review of public concerns with police record checks, the OHRC made a submission in April 2015 welcoming the government’s proposed approach for new legislation. At the same time, the OHRC commented that this type of legislation would only partially address the negative effect police record checks have on certain groups, including Indigenous peoples and racialized communities. Organizations have been calling for changes to Ontario’s Human Rights Code to bring a better balance to human rights, privacy, offender rehabilitation, crime prevention and public safety.[78]

OHRC consultation report on discrimination because of creed and pending policy – intersection with racism

In 2013, the OHRC released a human rights and creed consultation report,[79] which provides an extensive overview the OHRC’s own research as well as submissions from many organizations and input at policy and legal dialogues and other forums held by the OHRC. The report looks at the past and present social trends and dynamics that contribute to contemporary forms of discrimination based on creed including the intersectional relationship between religion, race and other grounds.

Scholars have noted that it is hard to disentangle religious-based prejudice and discrimination from that based on racism, xenophobia and ethnocentrism. The close relationship between religion, race and ethnicity for many creed communities, and the visibility of such differences (ethnic, racial and religious) from the mainstream, have exposed many ethno-religious minority Ontarian communities to intersecting forms of discrimination and harassment. After 9/11, this intersectional prejudice and animosity has at times resulted in the broad targeting of visible minority communities associated with Islam (e.g. Arabs and South Asians), regardless of actual religious affiliations.

The OHRC’s 2012 Creed case law review[80] cites several decisions recognizing the intersection relationship between racism and religious discrimination. One case involved a turban-wearing Sikh man who was denied entry to a bar because, according to the doorman, the bar “had an image to maintain” and did not want “too many brown people in.”[81]

In its review of applications to the Human Rights Tribunal of Ontario between 2010 and 2012, the OHRC found that an overwhelming majority citing creed also cited a race-related ground (such as race, ancestry, colour, ethnic origin, place of origin) as an intersecting basis of discrimination.

Research also suggests that Indigenous peoples continue to face significant barriers practicing Ontario’s longest standing spiritual traditions, which are often misunderstood or inadequately recognized by institutional authorities as warranting accommodation. This is another form of intersectional racism discrimination based on creed, ancestry and related grounds.

In 2013, the OHRC conducted an online survey with responses from 1,719 people. Various forms of racism and xenophobia were interwoven in reported experiences of creed discrimination and harassment. A recurring issue raised was racial profiling of Muslims by security personnel. The OHRC published a summary of findings in 2014.[82]

The consultation report, case law review and survey results include many insights that have guided the OHRC in developing its new Policy on preventing discrimination based on creed to be released later this year. The Policy will have a separate part dealing specifically with Indigenous spiritual beliefs and practices and related human rights obligations.

OHRC mental health and addictions consultation report and policy – intersection with racism

In 2013, the OHRC released its consultation report, Minds that Matter, on human rights, mental health and addictions.[83] The OHRC was told that people from racialized communities and in particular, African Canadian men, experience harsher treatment than non-racialized people in the mental health and forensic mental health systems (where people are also involved in the judicial system).

People were concerned that there is a high representation of racialized people with mental health issues in the criminal justice system, and that African Canadian men with mental health issues are more likely to enter the criminal justice system than the community mental health system.[84] One person from an agency serving racialized communities said misdiagnosis may be common because of stereotypes and cultural and language barriers.

A growing body of international research supports many of these findings.[85] Some studies suggest there are higher rates of restraint and confinement for people of African or Caribbean descent compared to people of other ethnic backgrounds, although the reasons for this may be complex.[86]

Many organizations and individuals also spoke of how Indigenous peoples in Canada have been affected by a long history of colonization, institutionalized racism and discrimination, such as the residential school policies. The Ontario Federation of Indian Friendship Centres (OFIFC) said that for the urban Aboriginal population, this has led to intergenerational trauma, family violence, poverty, homelessness, lack of education and incarceration. All of these have serious negative impacts on people’s mental health.

Mental health issues such as suicide, depression and substance abuse are higher in many Aboriginal communities than in the overall population. The OFIFC stated that the Aboriginal suicide rate is 2.1 times the Canadian rate; Aboriginal women are three times more likely to commit suicide than their non-Aboriginal counterparts.[87] The suicide rate for Aboriginal youth aged 15 – 24 is five to six times that of the non-Aboriginal population.[88]

Stereotypes about drug and alcohol use were raised in the consultation. Many people described how they were treated unequally in services, exposed to harassing comments, or profiled as a security risk based on stereotypes about their Aboriginal identity and misperceptions about alcohol and drug use. The OFIFC said that the provincial mental health reform in the 1990s that led to hospital closures meant that many Aboriginal people with mental health issues and addictions were released into urban areas and not back to their communities of origin.

Many said lack of affordable housing was a major issue of concern and that it is much harder to get housing because of intersecting identities of having a mental health issue or addiction, and being of Aboriginal ancestry.

In 2014, the OHRC released its Policy on preventing discrimination based on mental health disabilities and addictions. The Policy cites Article P of the Preamble of the UN Convention on the Rights of Persons with Disabilities which recognizes “the difficult conditions faced by persons with disabilities who are subject to multiple or aggravated forms of discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national, ethnic, indigenous or social origin, property, birth, age or other status.”


[7] The Committee remains concerned at the absence in the State party’s report of recent reliable and comprehensive statistical data on the composition of its population including economic and social indicators disaggregated by ethnicity, including Aboriginal (indigenous) peoples, African Canadians and immigrants living in its territory, to enable it to better evaluate their enjoyment of civil and political, economic, social and cultural rights in the State party.

In accordance with paragraphs 10 to 12 of its revised reporting guidelines (CERD/C/2007/1), the Committee reiterates its previous recommendation that the State party collect and, in its next periodic report, provide the Committee, with reliable and comprehensive statistical data on the ethnic composition of its population and its economic and social indicators disaggregated by ethnicity, gender, including on Aboriginal (indigenous) peoples, African Canadians and immigrants, to enable the Committee to better evaluate the enjoyment of civil, political, economic, social and cultural rights of various groups of its population.

[8] The Committee is concerned at reports that African Canadians, in particular in Toronto, are being subjected to racial profiling and harsher treatment by police and judicial officers with respect to arrests, stops, searches, releases, investigations and rates of incarceration than the rest of the population, thereby contributing to the overrepresentation of African Canadians in the system of criminal justice of Canada (arts. 2 and 5). …

The Committee recommends that the State party:

  1. Take necessary steps to prevent arrests, stops, searches and investigations and over-incarceration targeting different groups, particularly African Canadians, on the basis of their ethnicity;
  2. Investigate and punish the practice of racial profiling;
  3. Train prosecutors, judges, lawyers, other judicial and police officers in
  4. the criminal justice system on the principles of the Convention;
  5. Provide the Committee with statistical data on treatment of African Canadians in the criminal justice system;
  6. Conduct a study on the root causes of the overrepresentation of Africans Canadians in the system of criminal justice.

[9] See OHRC Written Deputation on: Policy on Community Engagements Procedure 04-14: Community Engagements; April 2, 2015, online: www.ohrc.on.ca/en/news_centre/ohrc-written-deputation-policy-community-e.... Also see OHRC Opinion Editorial: Political will needed to end carding; May 23, 2015, online: www.ohrc.on.ca/en/news_centre/opinion-editorial-political-will-needed-en....

[10] Toronto Star, “Known to Police” investigative series; analysis of Toronto police data from 2008 to 2012; online: www.thestar.com/news/gta/knowntopolice2013/2013/09/27/as_criticism_piles...

[15] The OHRC’s involvement in significant racial profiling cases has helped to advance the law on racial profiling as a prohibited form of discrimination under the Ontario Human Rights Code for example: Shaw v. Phipps, 2012 ONCA 155 (CanLII); Peel Law Association v. Pieters, 2013 ONCA 396 (CanLII); Maynard v. Toronto Police Services Board, 2012 HRTO 1220 (CanLII); Nassiah v. Peel Police Services Board, 2007 HRTO 14 (CanLII).

[17] 2007 HRTO 14 at para. 209 (CanLII)

[20] Scot Wortley, “Police use of Force in Ontario: An Examination of Data from the Special Investigations Unit, Final Report” (2006) Research project conducted on behalf of the African Canadian Legal Clinic for submission to the Ipperwash Inquiry at 37, online: www.attorneygeneral.jus.gov.on.ca/inquiries/ipperwash/policy_part/projec...

[21] “Bearing in mind the indivisibility of all human rights, the Committee encourages the State party to consider ratifying those international human rights treaties which it has not yet ratified, in particular treaties the provisions of which have a direct relevance to communities that may be the subject of racial discrimination, such as the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, ….”

[29] [T]he the Committee is concerned that African Canadians continue to face discrimination in the enjoyment of social, economic and cultural rights, in particular in access to employment, housing, education, wages, and positions in the public service (art. 5). … the Committee recommends that the State party take concrete specific measures to foster the effective integration at federal, provincial and territorial levels of African Canadians into Canadian society by effectively ensuring the implementation of its non-discrimination legislation, … The Committee requests that the State party provide it with information on specific measures taken as well as on their concrete results.

[30] [T]he Committee remains concerned about the persistent levels of poverty among Aboriginal peoples, and the persistent marginalization and difficulties faced by them in respect of employment, housing, drinking water, health and education, as a result of structural discrimination whose consequences are still present (art. 5). … The Committee recommends that the State party, in consultation with Aboriginal peoples, implement and reinforce its existing programmes and policies to better realize the economic, social and cultural rights of Aboriginal peoples, in particular through: …

(b) Intensifying efforts to remove employment-related discriminatory barriers and discrepancies in salaries between Aboriginal and non-Aboriginal people, in particular in Saskatchewan and Manitoba; …

(f) Discontinuing the removal of Aboriginal children from their families and providing family and child care services on reserves with sufficient funding;

The Committee requests that the State party, in consultation with indigenous peoples, consider elaborating and adopting a national plan of action in order to implement the United Nations Declaration on the Rights of Indigenous Peoples.

The Committee also requests that the State party provide it with information on the progress and concrete results of such programmes and policies, in its next periodic report.

[41] The John Howard Society of Ontario’s report, Help Wanted: Reducing Barriers for Ontario’s Youth with Police Records (2014), found that young Ontarians from marginalized populations – Aboriginal peoples, racialized/immigrant communities, individuals with mental illness and addictions or developmental disabilities, etc. – are more likely to come into contact with the police and justice system, and thus, have a police record, which in turn is one of the most significant barriers to employment and employability. The Canadian Civil Liberties Association’s report, False Promises, hidden costs: The case for reframing employment and volunteer police record check practices in Canada (2014), raises similar concerns.

[42] The right to housing and the state of affordable, available housing in Ontario and Canada is reported on in great depth in the OHRC’s Human rights and rental housing in Ontario: Background paper (2007); its housing consultation report, Right at Home (2008); and in its Policy on human rights and rental housing (2009); as well as in Minds that Matter: Report on the consultation on human rights, mental health and addictions (2012), and its Policy on preventing discrimination based on mental health disabilities and addictions (2014); online: www.ohrc.on.ca.

[43] Report on Equality Rights of Aboriginal People, Canadian Human Rights Commission 2013, online: www.chrc-ccdp.gc.ca/sites/default/files/equality_aboriginal_report.pdf

[49] Métis Nation of Ontario Recommendations Concerning Métis-Specific Child and Family Services Submitted to the Minister of Children and Youth Services, March 30, 2012 at p.3.

[50] Children First: Aboriginal Advisor’s report on the status of Aboriginal child welfare in Ontario, 2011, online: www.children.gov.on.ca/htdocs/english/documents/topics/aboriginal/child_...

[51] See “Ontario to reform aboriginal child welfare system,” Toronto Star, January 17, 2013, online: www.thestar.com/news/canada/2013/01/17/ontario_to_reform_aboriginal_chil.... Also see, “Aboriginals represent 6% of Canada’s child population, but account for 26% of the kids placed in out-of-home care”, London Free Press, December 3, 2014, online: www.lfpress.com/2014/12/03/aboriginals-represent-6-of-canadas-child-popu...

[52] A number of parties have brought a related complaint to the Canadian Human Rights Tribunal alleging discrimination against Aboriginal Peoples in child and family services (See “Stacking the odds against First Nations families”, Globe and Mail, October 20, 2014, online: www.theglobeandmail.com/globe-debate/stacking-the-odds-against-first-nat...). In its concluding observations on Canada’s third and fourth periodic reports under the Convention on the Rights of the Child, the UN Committee responsible recommended that the state intensify its efforts to render culturally appropriate assistance to Aboriginal and African Canadian parents and legal guardians to enable them to fulfill their parental role and avoid separating children from their family environment (See = recommendations 54, 55 and 56 of the Committee’s Concluding Observations on the combined third and fourth periodic report of Canada, 2012, CRC/C/CAN/CO/3-4, online: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?sy...).

[53] “Canada’s Forgotten Children: Written Submissions to the Committee on the Rights of the Child on the Third and Fourth Reports of Canada” by the African Canadian Legal Clinic, July 2012.

[54] The Toronto Star reports numbers it obtained “indicate that 41 per cent of the children and youth in the care of the Children’s Aid Society of Toronto are black. Yet only 8.2 per cent of Toronto’s population under the age of 18 is black. … Other figures… indicate the overrepresentation is province wide.” See Toronto Star, Dec. 11, 2014, “Why are so many black children in foster and group homes?” online: www.thestar.com/news/canada/2014/12/11/why_are_so_many_black_children_in...

[56] The Committee takes note of various measures taken by the State party to combat violence against Aboriginal women and girls, such as the Family Violence Initiative, the Urban Aboriginal Strategy, and various initiatives taken at the provincial or territorial level to address murders and disappearances of Aboriginal women. However, the Committee remains concerned that Aboriginal women and girls are disproportionately victims of life- threatening forms of violence, spousal homicides and disappearances (art. 5).

The Committee recommends that the State party:

  1. Strengthen its efforts to eliminate violence against Aboriginal women in all its forms by implementing its legislation and reinforcing its preventive programmes and strategies of protection, including the Shelter Enhancement Program, the Family Violence Prevention Program, the Policy Centre for Victim Issues and the Aboriginal Justice Strategy and the new National Police Support Centre for missing persons;
  2. Facilitate access to justice for Aboriginal women victims of gender-based violence, and investigate, prosecute and punish those responsible;
  3. Conduct culturally-sensitive awareness-raising campaigns on this issue, including in affected communities and in consultation with them;
  4. Consider adopting a national plan of action on Aboriginal gender-based violence;
  5. Consult Aboriginal women and their organizations and support their participation in development, implementation and evaluation of measures taken to combat violence against them.

The Committee further recommends that the State party support existing databases and establish a national database on murdered and missing Aboriginal women and provide the Committee with statistical data and information on concrete results of its programmes and strategies.

[58]Ibid: The majority of all female homicides are solved (close to 90%) and there is little difference in solve rates between Aboriginal and non-Aboriginal victims.

[60] www12.statcan.ca/census-recensement/2006/dp-pd/hlt/97-558/pages/page.cfm?Lang=E&Geo=PR&Code=01&Table=1&Data=Count&Sex=3&Age=1&StartRec=1&Sort=2&Display=Page

[63] The Committee’s inquiry and report were undertaken in accordance with article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. The Committee’s Report CEDAW/C/OP.8/CAN/1 is available online: www.fafia-afai.org/wp-content/uploads/2015/03/CEDAW_C_OP-8_CAN_1_7643_E.pdf

[64] CEDAW Committee Report, Ibid, para.190. Also, para.203.

[65] CEDAW Committee Report, Ibid, para.216 C.vi

[69]Ibid, p.33. The Action Plan also states that In February 2015, Ontario’s

Premier and related ministers attended the first National

Roundtable on Missing and Murdered Indigenous Women and Girls to participate in a discussion aimed at coordinating action to address and prevent violence against indigenous women and girls.

[70] The OHRC’s current 2005 Policy and guidelines on racism and racial discrimination offers some strategies to avoid racial profiling; online: http://www.ohrc.on.ca/en/policy-and-guidelines-racism-and-racial-discrim...

[73] In August 2012, the OHRC partnered with the TRC to present “Shared Perspectives, An Evening of Reconciliation” as part of the Planet IndigenUS Festival at Harbourfront Centre in Toronto. This evening featured TRC Chair Justice Murray Sinclair, performances by dancers and drummers from the Aboriginal and Black communities, and an authors’ dialogue between writer-storytellers Itah Sadu and Richard Wagamese, moderated by broadcast journalist Shelagh Rogers. This event widened the reconciliation conversation between Indigenous communities and other racialized communities in Canada.

[75] The Committee takes note of various measures taken by the State party to combat violence against Aboriginal women and girls, such as the Family Violence Initiative, the Urban Aboriginal Strategy, and various initiatives taken at the provincial or territorial level to address murders and disappearances of Aboriginal women. However, the Committee remains concerned that Aboriginal women and girls are disproportionately victims of life- threatening forms of violence, spousal homicides and disappearances (art. 5).

The Committee recommends that the State party:

  1. Strengthen its efforts to eliminate violence against Aboriginal women in all its forms by implementing its legislation and reinforcing its preventive programmes and strategies of protection, including the Shelter Enhancement Program, the Family Violence Prevention Program, the Policy Centre for Victim Issues and the Aboriginal Justice Strategy and the new National Police Support Centre for missing persons;
  2. Facilitate access to justice for Aboriginal women victims of gender-based violence, and investigate, prosecute and punish those responsible;
  3. Conduct culturally-sensitive awareness-raising campaigns on this issue, including in affected communities and in consultation with them;
  4. Consider adopting a national plan of action on Aboriginal gender-based violence;
  5. Consult Aboriginal women and their organizations and support their participation in development, implementation and evaluation of measures taken to combat violence against them.

The Committee further recommends that the State party support existing databases and establish a national database on murdered and missing Aboriginal women and provide the Committee with statistical data and information on concrete results of its programmes and strategies.

[77] See Baylis-Flannery v. DeWilde, 2003 HRTO 28

[78] The John Howard Society of Ontario’s report, Help Wanted: Reducing Barriers for Ontario’s Youth with Police Records (2014), found that young Ontarians from marginalized populations – Aboriginal peoples, racialized/immigrant communities, individuals with mental illness and addictions or developmental disabilities, etc. – are more likely to come into contact with the police and justice system, and thus, have a police record, which in turn is one of the most significant barriers to employment and employability. The Canadian Civil Liberties Association’s report, False Promises, hidden costs: The case for reframing employment and volunteer police record check practices in Canada (2014), raises similar concerns.

[81]Randhawa v. Tequila Bar and Grill Ltd, 2008 AHRC 3 (CanLII)

[84] A study conducted in Montreal also found that African-Canadians were overrepresented in police referrals to emergency psychiatric services. G. Eric Jarvis, et al. “The Role of Afro-Canadian Status in Police or Ambulance Referral to Emergency Psychiatric Services” (2005) 56:6 Psychiatric Services 705.

[85] Research from the US and the UK, and some from Canada, has supported that people of African or Caribbean descent, particularly men and people who are immigrants, are disproportionately likely to be represented in the mental health and forensic mental health system and diagnosed with psychosis or schizophrenia, although multiple contributing factors need to be considered. One report states, “there are no statistics available, but psychiatric forensic units in Southwestern Ontario (including CAMH), based on anecdotal information, seem to have a disproportionately high number of men of colour, including African-Canadian men.” Pascale C. Annoual, Gilles Bibeau, Clem Marshall & Carlo Sterlin, Enslavement, Colonialism, Racism, Identity and Mental Health: Developing a new service model for Canadians of African DescentPhase I report (Toronto: CAMH, 2007) online: Centre for Addiction and Mental Health www.camh.net/publications/resources_for_professionals/EACRIMH/eacrimh_re... 13; G. Eric Jarvis, et al. “High rates of psychosis for black inpatients in Padua and Montreal: Different Contexts, Similar Findings” (2011) 46 Soc. Psychiatri. Epidemiol. 247; Kwame McKenzie & K. Bhui, “Institutional Racism in Mental Health Care” (Mar 2007) 334 B.M.J.649.   

[86] G. E. Jarvis, Emergency Psychiatric Treatment of Immigrants with Psychosis, (Master of Science in Psychiatry, Department of Psychiatry, McGill University, Faculty of Medicine, 2002) [unpublished] at 91;  Amos Bennewith, et al. “Ethnicity and Coercion among Involuntarily Detained Psychiatric In-patients” (2010) 196 British J. of Psychiatry 75; Rachel Spector, “Is There Racial Bias in Clinicians’ Perceptions of the Dangerousness of Psychiatric Patients? A Review of the Literature” (2001) 10:1 J. of Mental Health 5. 

[87] National Council of Welfare, First Nations, Métis and Inuit Children and Youth: Time to Act 127 (Ottawa: Her Majesty the Queen in Right of Canada, 2007) at 64.

[88] Jeff Latimer & Laura Casey-Foss, A One-Day Snapshot of Aboriginal Youth in Custody across Canada: Phase II, (Ottawa: Department of Justice Canada, Youth Justice Research, February 2004) at iii.