On April 22, 2009, the Subcommittee on International Human Rights
of the House of Commons Standing Committee on Foreign Affairs and International
Development (hereafter the Subcommittee) agreed to devote two meetings to a
review of the recommendations put forth to Canada by the United Nations (UN)
Human Rights Council (HRC) Universal Periodic Review (UPR). The
Subcommittee heard from officials from the Department of Canadian Heritage
(PCH), the Department of Foreign Affairs and International Trade (DFAIT) as
well as from representatives of civil society organizations in order to gain an
appreciation of how the Government of Canada conducted its first UPR process. A
number of concerns were raised by civil society organizations with respect to
how they were consulted in the process and this was acknowledged by government
officials. However, in its hearings, the Subcommittee was told that the
concerns brought forward by civil society went beyond just the UPR process and
have been persistent problems in Canada under successive governments. These
concerns include Canada’s track record of monitoring and reporting on human
rights in the country, as well as its record of implementing and enforcing its
international human rights obligations domestically.
As a result, the Subcommittee then agreed to hear from some of the
same witnesses and an additional witness on how the government should proceed
with the implementation of the UPR recommendations and on the improvements that
must be made to Canada’s system of monitoring, reporting, implementing and
enforcing its human rights obligations. The Subcommittee agrees to report the
following findings and recommendations to the House of Commons Standing
Committee on Foreign Affairs and International Development.
The Subcommittee is convinced that a better system is required and
achievable. In addition, present and future governments of Canada must provide
more accountability to Canadians for the state of human rights in this country.
The Subcommittee firmly believes that if Canada wants to remain a leader in
human rights internationally, then Canada must take this opportunity, particularly
following its first UPR, to address the challenges it has been facing in this
area for years. According to several witnesses, Canada’s international
reputation is at stake.
It is not the Subcommittee’s intention to repeat or summarize all
of what was said by the witnesses in this report. Their testimony is readily
available in the public domain. This report focuses on the aspects of witness
testimony that concerned Members the most; issues that Members found
instructive, from which to formulate appropriate recommendations to the
government.
The report has three main sections. The first section deals with
the UPR process as well as with Canada’s other reporting obligations in the UN
system. The second section focuses on the concerns raised by a number of
parties regarding the way in which Canada monitors and reports on its domestic
human rights situation. The third section focuses on concerns raised regarding
the way in which Canada implements and enforces its international human rights
obligations domestically.
The UPR was created on March 15, 2006 through United Nations
General Assembly Resolution 60/251. The UPR process was viewed by many as an
important aspect of the reforms at the United Nations that culminated in the
creation of the UN HRC. In fact, as mentioned by several witnesses appearing
before the Subcommittee, Canada was a champion in the effort to establish the
new review process. It is for this reason that Canada must set the best
possible example for the international community on how to approach the review
process, both during the UPR and afterwards.
UN Resolution 60/251 created a mechanism to allow for the objective
and full review of “the fulfillment by each State of its human rights
obligations and commitments in a manner which ensures universality of coverage
and equal treatment with respect to all States...” As part of the process, all
members states of the UN will be reviewed by a panel composed of other member
states in a four-year cycle. Canada had its review before the UPR panel on
February 3, 2009 and presented its response to the UPR in June 2009. During the
UPR process, the UN Human Rights Council Working Group on the UPR issued a
report containing 68 recommendations relating to Canada’s human rights
obligations, of which Canada has accepted the majority. However, witnesses told
the Subcommittee that many of the recommendations in the report are not new concerns,
but rather have been put before Canada in the past.
The UPR process is not, however, the only human rights review or
reporting process at the UN or internationally. As Alex Neve, Secretary-General
for Amnesty International Canada, noted, there are ongoing obligations within
many international human rights treaties to which Canada is a party to provide
progress reports, generally every four years, to expert committees established
to monitor compliance with the treaties. As well, a few of the specific international human rights treaties provide
mechanisms for individuals to make complaints about rights violations to
committees set up under the treaties, which can issue recommendations to the
violating country if deemed necessary. Finally, there are also experts
appointed by the UN HRC with mandates to monitor specific human rights topics.
These UN experts undertake in-depth studies of a situation in a particular
country and issue reports with recommendations for that country to improve.
The UPR process is, however, unique because it provides a mechanism
for every country to have its human rights record reviewed and critiqued by its
peers. Countries such as Canada, who have been champions of the UPR from the
start, must therefore ensure that they demonstrate leadership as the reviews
proceed. Adèle Dion, Director General of the Human Rights and Democracy Bureau
at DFAIT, explained Canada’s commitment to the UPR process as follows:
Canada approached its own review with the goal of
providing a model for transparency and accountability in addressing national
human rights issues. The UPR was an important opportunity for us to look at our
own record and benefit from the views and perspectives of other states
participating in the dialogue. Canada welcomed the constructive input of other
states.
The Subcommittee believes that the internal process undertaken by
Canada with regard to the United Nations UPR, both during and after, is an
important indication of how Canada has proceeded with respect to its international
human rights reporting more generally. Furthermore, the new mechanisms that are
currently in development to implement the recommendations of the UPR and the
effective implementation of Canada’s international human rights obligations,
are integral to the success of the UPR process.
It is clear from what the Subcommittee heard that civil society
organizations have become increasingly frustrated by what appears to be a lack
of effective and continuous consultation by successive governments of Canada
with respect to human rights monitoring and reporting. During the UPR process,
for example, civil society was invited to contribute after the Canadian report
was submitted to the UN HRC in December 2008. Canadian government officials acknowledged this in their testimony, stating
that “some civil society groups were disappointed with the timing and nature of
the engagement” and citing the federal and Quebec elections during that time as the reason for
the postponement of consultations. Sessions between government and civil
society did take place in January 2009, albeit after Canada’s report had been
submitted. After Canada’s February 2009 appearance before the Human Rights
Council where the government had the opportunity to present its report on
Canada’s human rights record, the government followed up by engaging with
“federal departments, provinces, and territories as well as civil society and
aboriginal organizations in ... an extremely short amount of time” in preparation for its
final response to the HRC.
The Subcommittee recognizes and is sympathetic to the fact that the
UPR was a new process and that Canada’s federal division of powers posed its
challenges, since human rights in Canada is a multi-jurisdictional
responsibility, which requires PCH to engage with 14 governments and their
relevant departments throughout the many reporting processes Canada is subject
to under the international human rights treaties it is party to. However, the
fact that often times the government ends up “consulting civil society post
facto” indicates that there are gaps which leave Canada’s civil society organizations,
including aboriginal organizations, unable to adequately contribute to the UPR
process, a key component of Canada’s human rights dialogue. Further, Canada has
had over three decades of experience reporting to UN human rights treaty-based
bodies; however, it appears that governments have yet to develop an effective
reporting system that includes civil society consultation—a fact that leaves
civil society representatives immensely discontent with the current system and
ultimately hinders Canada’s ability to effectively report on its human rights
record which, in turn, negatively impacts its ability to implement its
international human rights obligations.
Although this was Canada’s first UPR process, the review did not
present Canada with any new human rights issues. According to Lucie Lamarche,
Professor of Law at the University of Ottawa, the UPR process involved
“submitting information that had already been collected, and recommendations
that had already been made by expert, independent treaty oversight organs, for
review by peers.” Therefore, if there had already been a mechanism in place to ensure ongoing
civil society consultations, time pressures or elections would likely not have
prevented the government from including civil society representatives in the
reporting phase of the UPR process. In fact, a number of Canada’s peers
recommended that Canada reform its system; a recommendation which Canada
accepted. However, even a few months after the UPR, it was clear that the
reporting process had still not been improved. To illustrate this point, Kathy
Vandergrift, Chairperson of the Board of Directors for the Canadian Coalition
for the Rights of Children, stated:
The experience of children’s rights, I think, is
instructive for this committee of the need for reform. Canada submitted its
combined third and fourth reports on children’s rights on November 20 [2009],
nine months late, without any public consultation, contrary to the requirements
under the convention itself and the norm in most developed countries. This was
after Canada committed to improvement under the UPR.
The Continuing Committee of Officials on Human Rights (hereafter
the Continuing Committee) constitutes one of the principal federal government
mechanisms in place to coordinate, with the provinces and territories, the
monitoring, reporting and implementation of Canada’s human rights obligations.
This Continuing Committee is chaired by PCH and has a specific mandate.
According to Tom Scrimger, Assistant Deputy Minister of Citizenship and
Heritage at PCH, “the committee is not a decision-making body, nor can the
committee direct any department or jurisdiction on measures it should adopt.” It is, however, “a forum
for governments to share information on measures being implemented in their jurisdictions
that relate to Canada’s international obligations.” Mr. Scrimger believes that
the Continuing Committee is “effective at fulfilling its current mandate” as it
has “supported Canada in ratifying six international human rights treaties with
provincial and territorial support.”
At the same time, however, the Continuing Committee has no mandate
to consult with civil society, nor does it have a mandate to inform the public
of the work it is doing. This is a matter of great frustration for civil society groups, a fact that has
not gone unnoticed by departmental officials: “...we very clearly hear the
message that civil society wants to have, is looking for, a larger role. What
we, I think, are doing in our work now is developing options for ministers to
consider on how we enlarge or how we potentially have a larger role.”
According to the PCH, it is currently considering a number of
options to make the entire system much more effective and inclusive of civil
society. This may involve reforming the Continuing Committee’s mandate, role
and operations or developing some new mechanisms.
It seems that the UPR process may have brought many of these
longstanding issues to the forefront of discussions among those in government
who are responsible for human rights in Canada. The Subcommittee hopes that
these discussions bring about the necessary changes. So far, it appears as
though the UPR process may have already brought about some interdepartmental
changes. When officials from PCH appeared before the Subcommittee in 2009, they
distributed two documents which outlined how it proceeded in coordinating the
federal government’s response to the UPR recommendations. These documents can
be found in Appendix A and B of this report.
Appendix A presents a diagram which shows the timeline and flow of
information among the many stakeholders who were involved in informing Canada’s
response to the UPR. As the diagram shows, the Continuing Committee did not
communicate with civil society but was the vehicle that linked the federal
government with its provincial and territorial partners. The committee that did
engage with civil society groups was a federal interdepartmental committee
consisting of officials from PCH, DFAIT and the Department of Justice. As
explained by Diane Fulford, Assistant Deputy Minister at PCH, in order to
facilitate the federal government’s consideration of the UPR’s 68
recommendations to Canada: “...we clustered the recommendations according to
themes. Each cluster was attributed to a lead department, which in turn has
worked with colleagues from other relevant federal departments in considering
the recommendations and providing input into the official response.” According to Ms. Fulford,
the UPR has brought “a very new horizontal approach to the issue of human
rights.”
Despite the fact that PCH developed a web-based consultation with a
“dedicated e-mail address,” and held two “face-to-face sessions,” one with
civil society and the other with aboriginal organizations, these groups still remain
dissatisfied by the nature of engagement. As stated by Professor Lamarche: “I
think the Canadian government has always promoted the idea that the moment a
report is transmitted to civil society, it has been consulted. Consultation
means that you have to be informed of what’s at stake and aware of the facts,
and can come together on conclusions.” According to witnesses, effective consultation also means engagement with the
Canadian public at large. For example, Alex Neve of Amnesty International
Canada argued that consultation is:
...something that is truly grassroots, something
that is across the country something that is not only about, you know, let’s
get to the experts and make sure we’ve got their input when figuring out the
final version of the report. It’s about truly reaching Canadians to engage them
about these important principles, get their viewpoint, get their aspirations,
get their recommendations as a key piece of this.
Leilani Farha, Executive Director of the Centre for Equality Rights
in Accommodation, concurred that government can learn a lot more about the
state of human rights in this country through ongoing, widespread engagement
and consultation with the Canadian public, a practice that civil society groups
do not necessarily have the funds or institutional support to do continually on
their own. In describing her own experience, Ms. Farha stated that: “I met
groups and organizations and encountered issues that I didn’t know were going
on, and I’m a human rights advocate; I get around a fair bit in this country.
So I think there is something to be said for just doing that.”
In addition, public and civil society consultations should not be
limited just to the federal government. According to Professor Lamarche, “[Quebec]
was the first Canadian province that decided to show up in Geneva and share the
experience of constructive dialogue over the monitoring of human rights
treaties.” Since then, other provinces have followed suit, a reflection of the fact that
many of Canada’s human rights obligations fall under provincial jurisdiction.
However, according to same witness, the Quebec government apparently “did not
consult with its own civil society before the UPR, which we can assume is less
complex than consulting with representatives from all over Canada.” In fact, civil society in
Quebec had to “insist on having a meeting after February when the delegation
was back from Geneva.” She further argued that if provinces and territories are participating in
international human rights reporting and review processes, then they have the
responsibility for consulting with their public and civil society organizations
as well.
Finally, the Subcommittee is concerned that on a number of
occasions, it heard the words “confrontational,” and “adversarial,” from representatives
of civil society groups describing their interaction with government
departments over human rights in Canada. The Subcommittee firmly believes that the current system of federal-provincial-territorial
consultations with civil society is ineffective and hinders the federal
government’s efforts to monitor and report on Canada’s human rights record, let
alone implement our human rights obligations domestically. The Subcommittee
recognizes that PCH acknowledges the gaps in the system and urges the
department and its government partners to work, on a priority basis, to
strengthen cooperation with other federal departments and with provincial and territorial
counterparts, and to improve how it consults with civil society organizations.
According to Professor Lamarche, countries like South Africa and Brazil have
permanent and continuous consultation processes between government departments
and civil society groups. This ensures that there is no “big rush before
producing any report whatsoever,” and no waiting until all parties are in
Geneva “to have this confrontational moment”. The Subcommittee calls on the government to draw on best practices in other
countries as it strengthens cooperation and consultation mechanisms in human
rights monitoring and reporting.
RECOMMENDATION 1:
That the Government of
Canada work on a priority basis to improve the system currently in place for
monitoring, reporting, implementing and enforcing Canada’s international human
rights obligations and that these reforms take place transparently and in
consultation with civil society, aboriginal groups, and institutions whether
federal, provincial or territorial.
RECOMMENDATION 2:
That the Government of
Canada expand the mandate of the Continuing Committee of Officials on Human
Rights to include ongoing consultations with civil society and aboriginal
organizations, and that its meeting agendas, benchmarks and goals be made
available to the public.
RECOMMENDATION 3:
That the Government of
Canada mandate the Continuing Committee of Officials on Human Rights to regularly
report its ongoing process to the Standing Committee on Foreign Affairs and
International Development via reports or meetings, in camera when
necessary, with the Subcommittee on International Human Rights.
The Subcommittee believes that an effective, permanent and
continuous consultation process between the federal government and civil
society organizations is fundamentally linked to transparency. Who is the
federal government accountable to in terms of Canada’s human rights record?
Witnesses before the Subcommittee argued that the federal government, as well
as its provincial and territorial partners, should be accountable to the
Canadian public as a whole as well as to civil society groups who represent the
more vulnerable Canadians—those whose human rights are actually being violated,
for example indigenous women in Canada who continue to experience “alarming and
shocking levels of violence and discrimination.”
Professor Lamarche stated that “...there is documentation to show
that Quebec’s position is that it’s accountable only to the Assemblée
nationale, and it’s piggybacking on federal decisions over the follow-up to the
UPR... I know that other provinces and territories take the same position on
that.” According to the same witness, there is a ping-pong game that has been going on
for two decades with respect to accountability that needs to stop, and this has
to do with federal, provincial and territorial governments playing the ‘federalism’
card when it suits them. She stated that:
When they’re in Geneva, the federal government
makes the point—and rightly so—of saying it is a provincial field of
jurisdiction. When they come back home, the provinces tell you it’s the
treaty-making power, and the federal government represents the state, so there’s
not much they can do at the provincial level. Theoretically it doesn’t keep the
road, and politically it’s not exactly productive.
In terms of monitoring and reporting, questions arose regarding
what appeared to be a deficiency in the reporting the government provides to
various UN bodies regarding Canada’s human rights record. According to Ms.
Vandergrift, with respect to children’s rights, when Canada was reviewed by the
UN Convention on the Rights of the Child Committee for the first and second
time, both the Committee and civil society groups emphasized the need for
Canada to include “information and analysis of the reality of children in
Canada” in its reports. Regarding Canada’s most recent report, she stated that:
While the government’s report listed several
initiatives for children, it contained very little data on the actual situation
of children in Canada, or the outcomes of government programs. It is dubbed the
“missing pieces report” within our community.
When her organization expressed their willingness to help the
government’s interdepartmental committee responsible for children’s rights in
Canada to provide the UN body with a better report, there was “no engagement
beyond a letter asking what topics the report should cover.” In her opinion, such a
report produced with no consultations, before or after, undermines the
credibility of that report. She further stated that:
...the current report does not reference the
specific provisions of the convention, making it impossible for you as MPs, or
the Canadian public, to really know whether Canada is meeting its obligations
or not. In short, if you want to know how well Canada’s children are doing, the
last place you will go to is this report. It should be the first place we go.
Although Ms. Vandergrift’s organization will attempt to collect
data among its coalition members as it prepares a response to the government’s
report, it does not have access to all the data that federal-provincial-territorial
governments have access to. In fact, she believes that governments are sharing
less information amongst each other than in previous years, which ultimately
hinders Canada’s reporting abilities. In terms of children’s rights, in 2000 there was a national children’s agenda
supported by federal-provincial agreements on children. However, these
agreements were changed in 2006 “such that there’s less incentive for provinces
to submit data to the federal government.” Ms. Vandergrift further noted that Canada’s most recent report on the situation
of children in the country should have contained a great deal more data—data
that does exist—than what was actually presented. On the same topic, PCH official
Tom Scrimger told the Subcommittee that the department is currently
“looking at data requirements for treaties.”
Some witnesses appearing before the Subcommittee suggested that the
federal government adopt rights-based mechanisms with respect to monitoring
and reporting human rights in Canada. This would require government officials
to see themselves as duty-bearers who have obligations under international law to protect and promote human
rights in Canada. All Canadians are rights-holders who, under international
law, are entitled to their human rights without prejudice. According to the UN,
rights‑based monitoring involves:
...monitoring the decisions, actions, and conduct
of political, economic, social and institutional systems and actors that are
expected to contribute to the realisation of rights; monitoring the impact of
measures that are expected to contribute to the progressive realisation of
human rights, and assessing final impacts to determine whether or not human
rights have been increasingly respected and protected, and are being fulfilled
in practice.
Sharing and disseminating this information would be an example of
rights-based reporting. According to Ms. Vandergrift, “...the results of
rights-based reporting by some provincial children’s advocates are beginning to
show real benefits in improved outcomes.” She believes that the federal government can learn from these provinces.
RECOMMENDATION 4:
That the Government of
Canada develop a rights-based approach to monitoring and reporting on Canada’s
human rights record.
RECOMMENDATION 5:
That the Government of Canada, in responding to reports received from UN treaty bodies and human
rights review bodies, ensure that its responses are based on government program
outcomes and include all available data that can legally be shared with the public.
Witnesses appearing before the Subcommittee raised concerns as to
whether or not the Government of Canada has or will consult effectively with
civil society organizations, including aboriginal organizations, as it
implements and enforces the recommendations received through the UPR process.
Mr. Neve expressed his concern of what he perceives to be a “shrinking space
for human rights critique and advocacy in the country.” He stated that many of the
recommendations that have emerged from the recent UPR “have been raised
repeatedly with Canada over the past 15 to 20 years, with far too little
progress.” Witnesses before the Subcommittee who represent civil society were extremely
forthcoming with what issues they felt were standing in the way of effective
implementation and with suggestions as to how to ensure a better approach to
implementing Canada’s human rights commitments.
What spoke clearly to Subcommittee Members throughout this study,
from all witnesses, including government witnesses, is the need for a better
system and improved human rights mechanisms in Canada. As Ms. Vandergrift
stated:
When 40 countries and over 50 non-governmental
organizations agree that Canada needs to improve its system for implementing
human rights agreements, it’s time for attention by our parliamentarians. We
need to do better at home in order to regain international leadership in the
field of human rights.
All witnesses firmly stressed the importance of ongoing
consultations between federal-provincial-territorial governments and civil
society as a condition for effective implementation and enforcement of Canada’s
human rights obligations. As noted earlier, the need for consultation has
become more apparent in the context of Canada’s UPR process, where civil
society groups had few, if any, meaningful opportunities to provide input into
the reporting phase. The Subcommittee believes ongoing dialogue and consultation
are crucial for Canada to effectively implement its international obligations.
As Subcommittee members look towards the future, it is clear that better human
rights mechanisms are needed in this country as Canada’s responsibility to
report its human rights record to UN bodies and implement its human rights
obligations are ongoing. As Professor Lamarche indicated:
Before we go back to the UPR, we’ll have to
process other reports, based on the reporting timeline related to human rights
treaties. The chances are that in six months we won’t necessarily be looking at
the UPR any more, we’ll be raising the same points about the classical treaty
system and again worrying about the fact that consultations are either late or
meaningless.
As mentioned earlier, witnesses suggested that consultation with
civil society and aboriginal organizations needs to occur from a “grassroots”
level across the country. Mr. Neve suggested that one way to achieve this would be for Members of
Parliament to take the initiative and distribute information about human rights
and the UPR process in their constituencies, as well as holding town hall
meetings to have open dialogues with the Canadian public. The Subcommittee also
believes that Members of Parliament should have access to the information they
need to answer questions with respect to how the federal government is
implementing Canada’s international human rights obligations.
The Subcommittee recognizes that there are efforts being made to
improve the dialogue between the governments and civil society. The
Subcommittee heard testimony from PCH officials on the subject of ongoing
engagement with civil society with regards to implementation of the UPR
recommendations. The Subcommittee learned from Mr. Scrimger that there are
active discussions between federal departments and members of civil society to
discuss the implementation of the accepted recommendations and Canada’s
commitments. Mr. Scrimger further stated that: “Canadian Heritage is also doing
research on model practices, both domestically and internationally, on civil
society consultations.”
The Subcommittee is encouraged that there are planned meetings
between government and civil society organizations, and that Canada recognizes
the importance of engaging with civil society and aboriginal organizations to
be “an important aspect of the UPR and the follow-up consideration of the UPR
commitments”. Ensuring that there is a dialogue across the country on human rights issues
will enable a consensus to develop with regard to the implementation of Canada’s
human rights obligations as well as the prioritization and promotion of human
rights domestically.
RECOMMENDATION 6:
That the Government of
Canada ensure that the Universal Periodic Review process be open to input from
relevant NGOs and community organizations.
Witnesses before the Subcommittee expressed their frustration with
respect to a lack of government accountability to the public and to Canadian
civil society organizations on matters of human rights implementation. This
issue is of particular importance as federal-provincial-territorial governments
begin to discuss how to implement and enforce the recommendations coming out of
the UPR process. Various UN bodies have, in fact, “called on Canada repeatedly
to develop a better approach” to the implementation of its international human rights obligations. The
Subcommittee views the current UPR follow-up timeframe as an opportunity for
Canada to improve its implementation process and develop better mechanisms for
accountability.
The Subcommittee heard that transparency within the human rights
mechanisms currently in place within federal-provincial-territorial governments
must be improved. According to witnesses, the “secrecy” of the current
processes and the lack of information sharing “flies in the face of what human
rights and good government stand for.” The mechanisms in place have been described as “extremely opaque” and navigating the system
is difficult even for those engaged in areas of human rights advocacy on a
consistent basis. In fact, identifying who is responsible and ultimately
accountable for human rights concerns within the government systems has proven
to be a continuous source of frustration for members of civil society.
As mentioned earlier, challenges arise due to the federal structure
of Canada. According to several witnesses, this has caused considerable
problems for the implementation of Canada’s international human rights obligations.
Professor Lamarche described it as a “hiding place with two doors” where the
provinces are able to state their preferences regarding which international
obligations are ratified and not having to explain why they are not in
compliance with Canada’s obligations. An example brought up by a number of witnesses was the issue surrounding the
Optional Protocol to the Convention against Torture, a treaty which Canada has
not ratified. According to Mr. Neve, it has not been made clear to the Canadian
public or civil society as to why Canada has not signed the agreement. Although
he indicated that there was speculation that the provinces have concerns about
inspections of their prisons, no information has been made public and therefore
there has been no opportunity for engagement with the Canadian public on the
topic. The Subcommittee believes that there is a need for a more effective approach to
implementing international human rights obligations within a federal state so
that Canadians can hold all orders of government accountable for their role in
implementing Canada’s international human rights obligations.
The challenges presented by Canada’s federal system with respect to
human rights implementation provide an additional reason why civil society
groups want access to the Continuing Committee of Officials on Human Rights. As
Mr. Neve argued, for 30 years, successive federal governments have pointed to
this Committee “as the vehicle that coordinates and ensures implementation
among all orders of government.” However, he also told the Subcommittee that the Continuing Committee is
comprised of “mid-level officials who generally have no decision-making
authority with respect to human rights issues which are often complex and
politically charged.” Further, “the Continuing Committee carries out all its
work in absolute and total secrecy, declining and refusing to even release its
agenda to the public.”
The Subcommittee is concerned about this lack of information
sharing, a principal method of ensuring accountability and transparency, with
respect to how Canada should implement its human rights obligations. Several
witnesses suggested that if the mandate of the Continuing Committee were
changed to include a more open process, this would increase the transparency of
the government’s human rights mechanisms. Providing access to information about the Continuing Committee, its business
and its membership, and providing civil society with the ability to communicate
and engage with members of the Continuing Committee, may prove to be more
effective tools for the implementation of Canada’s human rights obligations.
PCH official, Mr. Scrimger, in referring to
the Continuing Committee, indicated that there is a desire to develop a better
mechanism for consulting with civil society as well as ensuring that interested
parties are kept up to date on all the steps taken to implement the UPR
recommendations. Furthermore, he mentioned that changing the mandate of the
Continuing Committee from an information-sharing body to a body with an
expanded role to engage civil society is being considered, although it will be
a difficult task and is out of the Department’s control. Any changes to the
Continuing Committee would require a change in its mandate. According to Mr.
Scrimger:
The current Continuing Committee’s mandate is one
specifically given to us by all ministers involved in the process. It is
something that our minister would have to bring back to all of his colleagues,
because it is a federal, provincial, and territorial mechanism.
The Subcommittee believes that information must also be shared
regarding the process the government is using to implement Canada’s human
rights obligations. So far, it appears that members of the Canadian public and
civil society groups are kept in the dark with respect to any progress that is
being made with implementation. Witnesses described their efforts in seeking
this information and attempting to contribute to discussions on these policy
issues as trying to navigate the “labyrinth of federalism”. It appears that
members of civil society are unable to “determine the status of a
recommendation, which level or department of government is looking at it, if at
all, whether the government has any plans to move forward with it, and if not,
why not.”
Mr. Scrimger (PCH) acknowledged this gap stating that: “There is
not a place where you will see on a departmental website right now the
recommendations and the current status, I guess, of progress against the
recommendations.” He further stated that “…any department that has leadership around a certain
policy domain has its own processes about how it engages its stakeholders in
those policy consultations and discussions” and also mentioned that there are a
number of federal-provincial-territorial committees on justice, the status of
women and social benefits, to name a few. Mr. Scrimger did conclude that: “…yes, in many cases, I suspect, our
colleagues in civil society have a number of doors right now that they have to
knock on to present their views and make their recommendations around where the
policy is going to go”. The Subcommittee believes that the discussion of how Canada implements its
human rights obligations should, first and foremost, be readily accessible to
all Canadians and allow for civil society participation. Subcommittee members
greatly appreciated the document it received from the Department (Appendix B)
which showed which federal departments have the lead on which UPR
recommendations. The Subcommittee urges all federal departments that are
responsible for implementing Canada’s human rights obligations to make
information concerning their progress available to the public.
According to several witnesses, an important accountability
mechanism lacking in Canada is the “near total legal and policy vacuum when it
comes to the standing, implementation, and enforcement of Canada’s
international human rights obligations.” With regards to legal concerns, Mr. Neve stated that:
International norms cannot be independently
enforced in any Canadian legal proceedings. Many international obligations,
though ratified at the international level, have never been specifically
incorporated into Canadian law. That means that the ability to obtain remedies
for violations is dramatically undermined, and it leaves enforcement of
international legal obligations to the whim and uncertainty of political
processes rather than to the certainty and predictability of legal process.
According to Ms. Farha of the Centre for Equality Rights in
Accommodation, there is currently a piece of legislation before Parliament that
attempts to fill this gap with respect to adequate, accessible and affordable
housing. Private Members Bill C-304, sponsored by Libby Davies, MP for
Vancouver East, calls for the federal-provincial-territorial governments to
“hammer out a national strategy,” in consultation with civil society and
aboriginal groups, and set timelines and targets for ending homelessness in
Canada. This Bill also calls for the “development of a process for the
independent review of complaints about possible violations of the right to
adequate housing”. This Bill, which Ms. Farha describes as “model legislation”, directly responds
to concerns repeatedly raised by UN treaty bodies and recently, by the UPR.
In terms of policy, Ms. Vandergrift called for a rights-based
approach to all federal policy formation processes. This would involve
government officials conducting a rights impact assessment at the beginning of
all policy formation processes—an assessment that would have the same weight as
a fiscal analysis. According to Ms. Vandergrift, currently, the policy formation process involves
officials from the Department of Justice conducting “primarily a negative
screen”. In her opinion, this is not enough. What is needed, according to Ms.
Vandergrift, is a proactive process to assess how policies not only contribute
to the fulfillment and promotion of Canada’s human rights obligations but also
reduce negative trends, such as child poverty. She further stated that
“rights-based measures could help ensure that the money for which you are
responsible is serving the people and the ends for which you approve it.” Again, Canada can learn
from the experiences of its peers within the international community. According
to the same witness, the European Union has done some work to investigate how
countries can do these assessments and develop indicators that can move
rights-based mechanisms into the policy process.
The Subcommittee does acknowledge that there have been advances
made by Canada in an attempt to develop stronger accountability based on Canada’s
recent experience with the UPR process. The Subcommittee was assured by Mr.
Scrimger that PCH is currently working on its commitment to table the outcome
of Canada’s UPR process in Parliament, a commitment which the Government of
Canada hopes will be achieved before the end of the current parliamentary
session. Civil society witnesses suggested that all UN reports on Canada’s human rights
record be tabled in Parliament as well as in provincial and territorial
legislatures and that progress reports also be table on a yearly basis.
RECOMMENDATION 7:
That the Government of
Canada table each UPR report concerning Canada’s human rights record and any UN
treaty body reports on the same subject in Parliament and that each of these
reports be referred to an appropriate parliamentary committee for study.
RECOMMENDATION 8:
That the Government of Canada, in
partnership with provincial and territorial governments, create and continually
update a website to provide specific information with respect to the UPR
recommendations, with respect to which departments are taking the lead for each
recommendation and with respect to the current status of implementation.
RECOMMENDATION 9:
That the Government of Canada publicly
respond to recommendations received from all UN treaty bodies and human rights
review bodies within one year of receiving their reports.
In its hearings, the Subcommittee was told of the “unclear and
disappointing political leadership at the federal level” in Canada with respect
to the implementation of its international human rights obligations. Several witnesses who
appeared before the Subcommittee expressed their concerns regarding the lack of
a unified approach to human rights within Canada at the political level. The
Subcommittee believes that effective and accountable political leadership in
the human rights field is fundamental to promoting human rights at the domestic
and international levels and can facilitate prompt and accountable
decision-making and implementation mechanisms within the federal and provincial
governments.
The Department of Canadian Heritage (PCH) appears to be the federal
department given the responsibility to oversee Canada’s adherence to its
international human rights obligations. However, according to Mr. Neve, the
department itself has “little authority or responsibility for human rights
issues.” The departments with more of a central role with respect to human rights issues
in Canada, such as the Department of Justice or Indian and Northern Affairs,
are not considered the main points of contact within the federal government. There is, therefore, no
one single minister in Canada who is responsible for human rights. Witnesses
believe that this lack of leadership has led to many of the concerns raised in
this report.
Several witnesses pointed to examples in other countries such as
the United Kingdom and France where there are ministers with a specific human
rights responsibility. In fact throughout Latin America and Africa, it is
prevalent. As stated by Mr. Neve: “I would be hard-pressed to think of a
government who doesn’t have a ministre des droits humains or a ministro
de derechos humanos…It’s quite a common practice.” An effective minister
responsible for human rights would not only provide clear and enhanced
political leadership in the area; this designation would also be symbolic of
how Canada views human rights domestically and internationally.
Mr. Neve pointed out that there has not been a ministerial-level
meeting in Canada focused specifically on human rights for 22 years, a point
which illustrates the lack of political engagement and lack of political
leadership from successive governments with respect to Canada’s international
human rights obligations. Mr. Neve continued by suggesting that there should be a meeting of federal-provincial-territorial
ministers immediately to adopt a national implementation strategy for the
recommendations that came out of Canada’s UPR process. Furthermore, Mr. Neve
suggested that there should be a federal deputy ministers committee established
that is specifically tasked with the responsibility for human rights; its role
would include close consultations with civil society organizations in order to
facilitate the federal decision-making process and support the ministerial
meetings.
The Subcommittee also believes that there is an important role that
federal parliamentary and provincial legislative committees can play in the
human rights process. Mr. Neve highlighted the importance of having committees
review the UPR recommendations in sessions open to the public to facilitate the
dialogue with Canadians regarding the implementation of Canada’s obligations. Parliamentary
accountability ensures that there is accountability to the public.
RECOMMENDATION 10:
That the Government of
Canada designate ministerial responsibility for:
- the domestic implementation of Canada’s international human rights
obligations;
- for monitoring Canada’s human rights record and for reporting
these findings to UN treaty bodies and human rights review bodies; and
- that the minister be given the necessary tools and resources to
carry out this mandate.
RECOMMENDATION 11:
That the Government of Canada consult
its provincial and territorial counterparts on the UPR recommendations and
their implementation.
RECOMMENDATION 12:
That a federal-provincial-territorial
deputy ministers committee be tasked with working closely with civil society
and aboriginal organizations to support and facilitate any ministerial meetings
and decision-making processes.
The Subcommittee believes that the Government of Canada has much
work to do as it builds on the experience of its first UPR process and improves
the current system for monitoring, reporting on and implementing Canada’s
international human rights obligations. Many of the systemic concerns raised by
civil society organizations throughout the Subcommittee’s hearings are not new;
neither are the human rights concerns raised by the UPR. The Subcommittee
strongly believes that with the completion of Canada’s first UPR process, the
time for change is now.
The Subcommittee wants to emphasize the importance of strong and
clear lines of accountability for Canada’s human rights obligations that lead
directly back to one individual in government. Although the Government of
Canada has made the very important announcement of its intention to accept the
UN Declaration on the Rights of Indigenous Peoples, and has made commitments to:
increase penalties for offences against children; launch a national childhood
injury prevention strategy; bring forward legislation for safe drinking water
on reserves; and establish a registered disability savings plan, the
Subcommittee hopes that these promises are fulfilled in a consultative,
transparent, accountable and timely manner, with the appropriate support
mechanisms.
Subcommittee Members listened intently to the concerns raised by
its witnesses who represented civil society groups in Canada. Many would concur
with Mr. Neve’s following statement:
When it comes to any country’s human rights
record, the real value lies not in the treaties that have been ratified, the
promises that have been made, or the review processes undertaken. The proof
lies in compliance and implementation... This has long been a troubling
shortcoming for Canada.
The Subcommittee is troubled by this and acknowledges that many
Canadians are unaware of this situation. However, these concerns have not gone
unnoticed by its peers in the international community.
It is time for Canada to stop falling short on its human rights
obligations and work fastidiously toward upholding its international reputation
as a global leader in the field of human rights.