Proceedings of the Standing Senate Committee on
Human Rights
Issue 5 - Evidence, November 26, 2001
OTTAWA, Monday, November 26, 2001
The Standing Senate Committee on Human Rights met this day at 4:05 p.m. to examine issues relating to human rights, and, inter alia, to review the machinery of government dealing with Canada's international and national human rights obligations.
Senator A. Raynell Andreychuk (Chairman) in the Chair.
[English]
The Chairman: The committee has had the benefit of many witnesses and I am pleased that we will hear from three more groups today. We will hear from Mr. Harinder Mahil, Acting Chief Commissioner of the British Columbia Human Rights Commission and President of the Canadian Association of Statutory Human Rights Agencies, CASHRA. We will also hear from Mr. Charles Ferris, Legal Counsel for the New Brunswick Human Rights Commission.
The committee is attempting to examine the machinery of human rights. We are searching for suggestions and information about how existing commissions and other institutions are addressing human rights gaps and the needs that they envision for the future.
Mr. Mahil, please proceed.
Mr. Harinder Mahil, Acting Chief Commissioner, British Columbia Human Rights Commission: Honourable senators, today I will address you in my capacity as the British Columbia representative. I thank you for inviting us to participate in this important review.
I will begin by offering my best wishes to the Senate. In my view, this committee can play an important role in the future of human rights protections in Canada. I agree with the comments of Mr. Warren Allmand, who has appeared before you. The Senate can speak freely, openly and frankly on issues without any concern for electoral benefit and I congratulate you for embarking on this important inquiry. I am hopeful that your work is fruitful.
By including the domestic agencies that are charged with giving Canadians an avenue for enforcing their right to live in a discrimination-free society, I am confident that, in the committee process, you will gain a clear sense of the significant work that is carried out to prevent and to redress discrimination in Canadian society.
The legislation that we enforce at the B.C. commission, the B.C. Human Rights Code, is based on a truly inspirational vision. However, there currently are reviews to examine the legislation and how it is implemented. The purpose of the legislation is to foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia, to promote a climate of understanding and mutual respect where all are equal in dignity and rights, to prevent discrimination prohibited by the code and to provide a means of redress for those who are discriminated against contrary to the code.
In preparation for today, the B.C. commission has prepared a written submission. It is my understanding that copies of the submission and its appendices are available to you.
The B.C. commission is charged with the responsibility of administering B.C.'s provincial human rights legislation, the comprehensive code that governs such matters within our jurisdiction. Currently, as indicated, our process is under review because of the provincial government's review of the system for the administration of human rights.
We perform much the same function as our counterparts in other Canadian jurisdictions. The bulk of our resources are devoted to receiving, investigating, mediating and, ultimately, screening complaints of discrimination. However, we also undertake significant public interest litigation initiatives, including intervening in cases before the courts and becoming involved in hearings. We have also managed, in the last five years that the commission has been in operation, to carry out some very successful education initiatives, to conduct public hearings into what British Columbians think about the substantive protections accorded by the code so that recommendations can be made for amendments and to build ongoing partnerships with community stakeholders in the complainant and respondent communities.
In our written submission, you will find an overview of the structure of the commission and you will be able to gain a more complete sense of the work that we do than time permits me to provide for you today. You will also find a description of how the B.C. commission works with other governmental and non-governmental organizations toward the common goal of promoting a discrimination-free society. You will also find a discussion of some of the challenges and problems that we face in discharging our human rights obligations.
There is also a discussion of some of the substantive barriers that prevent us from effectively responding to inequality and discrimination in the province. Today I intend to focus on two of those substantive barriers because they impact on the quality of life of thousands of British Columbians. Those matters are our powerlessness to deal with most aspects of the stigmatization and marginalization of those who live in poverty and the situation of our First Nations populations.
As you know, Canada has ratified the International Covenant on Economic, Social and Cultural Rights. Through our national organization, the Canadian Association of Statutory Human Rights Agencies, CASHRA, we called upon the federal, provincial and territorial governments to enact protections in their respective jurisdictions that will allow those who suffer discrimination because of their social condition to seek redress. However, movement in this area has been negligible.
Studies show that people perceive poverty to be the result of the individual characteristic of the poor. We tend to attribute a poor person's economic situation to personal failings on the part of the individual. From this perception we construct stereotypical views about that person and about poor people as a group. Some common stereotypes are that people are poor because they are lazy or careless with their money. We employ this type of logic to justify discriminatory treatment of the poor.
Poverty has also been recognized as a factor that contributes to other forms of discrimination. Social groups that historically have been victims of human rights abuses for reasons of gender, ethnic origin or race experience discrimination more frequently if they are poor.
Indigenous peoples and ethnic minorities represent a disproportionate number of those who live at or below the poverty line. The same observation has been made in respect of women and children. Poverty has also been found to be among the main causes of disability. The United Nations addresses poverty as a denial of human rights. Good health, adequate nutrition, literacy and employment are not acts of charity to be bestowed on the poor by governments. They are human rights that are as valid today as they were 50 years ago when the Universal Declaration of Human Rights was adopted.
Some argue that Canada's social welfare system means that the poor in this country are afforded protections from human rights abuses that are not ensured in other parts of the world where comparable social welfare policies do not exist. Although we are much better off in Canada than are people in many other countries, this does not mean we do not have poverty.
Every day, the poor are deprived of the civil, political and cultural rights as a consequence of their economic position in society. This discrimination can take any number of forms, the most acute of these being the exclusion and stigmatization of the poor.
Our society negatively stereotypes people living in poverty. Our governments and social institutions invariably ignore their issues. Their voices are rarely heard.
To protect people living in poverty, the B.C. commission has taken a lead role, in conjunction with other human rights commissions across Canada, to advocate for inclusion, of the ground of social condition, in the federal, provincial and territorial human rights legislation. As we note in our submission, the commission's proposal that this ground be included - first recommended to the B.C. Government in 1998 - has still not been acted on.
The B.C. Human Rights Commission considers that it is vital that this committee consider the conditions in which our First Nations people live. Earlier this year, the commission released a discussion paper highlighting the historic and current reality of Aboriginal education in British Columbia entitled, "Aboriginal Education: Pathways to Equality." It identifies critical barriers, including Aboriginal communities with little or no control over the education of their children, education curricula that does not acknowledge Canada's historic mistreatment of Aboriginal people, overt racism in schools and a lack of Aboriginal role models in the public school system.
Recent statistics from the B.C. Ministry of Education show that, in British Columbia, only 38 per cent of Aboriginal students graduate from grade 12 compared with 77 per cent of non-aboriginal students. Graduation rates vary throughout school districts and in 1999 were as low as 12 per cent for Aboriginal students in some areas. These statistics show the outcome of many barriers faced by Aboriginal students throughout their years in public schools. While the commission strongly supports existing efforts to improve the education system for Aboriginal students, major concerns about education equality remain.
Of course, the education system is not the only aspect of our society where Aboriginal people face injustice and inequality. The 1996 report of the Royal Commission on Aboriginal Peoples has documented the reality of life for First Nations people in Canada. The B.C. commission is committed to working with all British Columbians to create a society in which we all take responsibility to prevent and eliminate discrimination, and in which all people are treated with dignity and respect.However, we cannot change society alone.
In concluding the written submission that is before you, we have identified six ways in which we believe the federal government and parliamentarians could facilitate the work of provincial human rights organizations. I urge the committee to consider those options carefully in its deliberations.
The recommendations of this committee will be an important resource in our ongoing effort to create a society in which we recognize the fundamental importance and the innate dignity of every individual. Given the events of September 11 and some of the aftermath, the importance of having strong, effective domestic human rights institutions is all the more important today. This committee will be able to provide timely advice and assistance.
Once again, thank you very much for inviting me to share the commission's views with you. I trust that there is enough time remaining to let me answer any questions you might have or to discuss any particular issues or concerns that you wish to discuss.
Mr. Charles Ferris, Legal Counsel, New Brunswick Human Rights Commission: In the commission's submission, we are addressing three issues: greater parliamentary or legislative involvement in the international human rights implementation and monitoring process, the issue of resources and the issue of domestic human rights shortcomings, which are being addressed through some suggested possible research initiatives that the Senate may be interested in participating in.
Before I start my comments, I would also like to thank you for the opportunity you have provided to the New Brunswick Human Rights Commission. I would also like to briefly recognize the outstanding contribution to human rights in New Brunswick of two of your colleagues. The first is a former colleague, Senator Robichaud, whose government, in the 1960s, was responsible for instituting in New Brunswick society the principles of equality of opportunity, which is the underlying principle of the UN International Human Rights regime. The second is Senator Kinsella, who served as chair of the New Brunswick Human Rights Commission for nearly 20 years.
Senator Finestone: You forgot to add Senator Cohen for her work on social conditions.
Mr. Ferris: Certainly Senator Cohen's work has been outstanding, as has the work of a number of other senators as well.
The first issue is whether the Senate has a role with respect to the approval process and with respect to the monitoring of UN instruments that are prepared by Canada. The New Brunswick commission supports the notion that Parliament should play a greater role in overseeing, monitoring, studying and making comments on such instruments, possibly to the extent of playing a part in the actual law-making process, which, at this point, is principally an executive function.
Part of the impetus of that comes from the fact that New Brunswick is one of those provinces that is currently arguing that courts should apply Canada's obligations under international law in domestic jurisprudence. If that is to be an effective arguing point, one of the fundamental aspects of arguing law in Canada should also be included in that process. For example, if we are arguing a Human Rights Act interpretation before a board or a court, we are arguing laws that have been scrutinized by parliamentary or legislative committees and that have received the approval of Parliament and, therefore, have a broad, general legal acceptance at the parliamentary level.
The commission would certainly like international human rights instruments to receive the same kind of recognition. There is a case that has probably been referenced to you already, namely, the Baker case, where there seems to be some movement in that direction. There are other cases where international enactments have been mentioned. It seems logical that in Canada, where we go through a parliamentary procedure before we adopt legislation that will have effect on all Canadians, there should be some role for Parliament with regard to these international instruments as well. It seems logical. It is the way we have developed our domestic law and it seems to make good sense that international law should receive greater legislative supervision as well.
The second reason that I have alluded to is that the work of the continuing committee would receive, what they call in the military, "a greater sense of urgency" in terms of meeting the deadlines and seriously considering some of the issues. I should not say seriously. The serious consideration is there. It is more a matter of timing and agenda. If the agenda for the continuing committee's work is appropriate, then that is the way it should be. At the present time, however, that is an executive decision. The issue is: Should timing of responses to reporting and to the approval of instruments be left solely to the executive or does Parliament have a role there as well? That is a matter that merits consideration by this committee.
As I noted in the report, our experience has been that there is not a real sense of urgency with regard to some of these issues. The one example that I will give is the recent optional protocol on the sale of children - that is, the optional protocol under the child convention. We were asked to fast-track that in the summer of 2000. Canada signed it a couple of weeks ago. If that is the agenda, fine, but Parliament has a role in deciding what that agenda should be, or at least it has a role in considering whether it should have a role in setting the priorities for that work or whether it should be left exactly where it is: left to the wisdom of the executive. That seems to be a useful task for the committee in our view.
The second major area that we have examined is the issue of resources. We have looked at that in the context of a possible expanded parliamentary role and also the notion that within that expanded role there could also be an expanded role for the continuing committee in the area of the OAS regional human rights regime. This is under study right now in Canada and is waiting for something to be done. Again, there is the issue of whether Parliament should have a role in helping to make the decision about that western hemispheric set of rights that have been under long study here in Canada.
Several of the suggestions that we have made are with regard to internship programs and training programs. These are fairly practical steps. They come from our experience of writing reports and of being involved in the ratification process, where there is a problem with timeliness and a real issue with resources. Resource allocation seems to be an ongoing challenge for the work of the continuing committee.
These are just some suggestions that have been made.
The final point we have made concerns research. This would be another point where some of the excellent work of Senator Cohen should be underlined. That is with regard to the concluding observations of the UN Committee on Economic, Social and Cultural Rights, where that committee issued about 21 fairly strongly worded recommendations for Canada. Those recommendations - and perhaps I am considering this from a legalistic point of view - contain the underlying issue of why we have 14 sets of human rights in Canada. We talk about a universal declaration of human rights, yet the federal-provincial mindset is happy to have various regimes where people do not enjoy the same rights within the Canadian democracy.
The committee was focusing on economic and social issues. From that work of the committee there were proposals in New Brunswick to add social condition as a ground. That came, I think, quite directly from Senator Cohen's work and from the work of this committee.
That has led to the matter of whether it is useful to examine the possibility of further research. Some research options have been suggested to the committee, including those of the Uniform Law Conference of Canada, the Law Commission of Canada, and the Canadian Association of Statutory Human Rights Agencies.
As I said at the conclusion of the commission's submission, our commission certainly would be available to answer questions and to serve as a resource or help in the committee's work if that would be of use.
The Chairman: Thank you for your presentation. We will be able to make good use of it. It is very helpful to our work.
Senator Beaudoin: I have one question for Mr. Ferris and for Mr. Mahil.
We are very concerned about the implementation of treaties in this country. A case of the judicial committee in 1937 says clearly that we are a country of a jural theory, like Britain, and when we sign a treaty, we shall legislate to incorporate the treaty in the domestic law.
However, we do not do that. I am somewhat scandalized by that because the executive is the only branch that is involved. We should have the Parliament of Canada and the provinces involved. If it is a provincial field, we must legislate. If it is a federal field, we must legislate. If we do not legislate, we do not give effect to the treaty.
My guess is that we will have to find our own way of implementing treaties. However, I detected from what you said that you have the same complaint that we have on this subject. We do not legislate enough. We have not legislated very much on the rights of children. We have not legislated enough on the many international instruments.
Do either of you have anything to suggest in that regard? Do you agree that we must legislate? It is not good enough to say that we are a democracy, et cetera. We must do something.
Mr. Ferris: One thing is certain: The board of inquiry and the judiciary are perplexed about how to deal with these instruments because they do not go through the same process as other laws that they are asked to apply in domestic human rights matters.
Senator Beaudoin: Nothing would stop the Supreme Court from saying clearly: We have signed the treaties; we must comply with them. In our interpretation of the case before us, we will take notice of what has been signed in the treaty. Dean Leuprecht suggested that we try to do that. Of course, we have to change our mind because we do not do it.
My question is also addressed to Mr. Mahil, of course.
Mr. Mahil: One of the barriers we face is that our statutory mandate is restricted to identified grounds within our own legislation. It is not as extensive as those in the documents containing Canada's international obligations.
Further, because these commitments have not been expressly incorporated into domestic law, courts and tribunals do not treat them as binding. Baker has been a positive decision for us. We are hoping that the Supreme Court of Canada in Gosselin will go further than it has in Baker. That was argued only last month. I think Mr. Warren Allmand spoke to you about that case. Our organization, CASHRA, intervened in that case. On the opposing side were seven Attorneys General, including the Attorney General of the Province of British Columbia. That is the dilemma we face.
Senator Beaudoin: Did some Attorneys General of provinces suggest that in the Supreme Court?
Mr. Mahil: There were interventions made.
The Chairman: The comment, if I may clarify, is that the Attorneys General were there on one side of the case. The human rights commissions were intervening to encourage the court to take into account the international law, not the Attorney General.
Mr. Mahil: That is correct. Thank you for clarifying.
Senator Beaudoin: Do you agree that we should do something?
Mr. Mahil: Absolutely.
Senator Beaudoin: As you said, we are not doing our duty to leave that entirely to the executive branch of the state.
Mr. Ferris: CASHRA counsel has undertaken to consistently argue international human rights treaties before boards of inquiry. However, that still leaves open the issue of what kind of effect will be given as long as these are being approved through more of an executive type of process than a parliamentary one. The judiciary thinks in a context in which Parliament is an important part.
Senator Finestone: I wish to follow up on the subject Senator Beaudoin was asking about. Does CASHRA have significant political weight? Does it represent all of the provinces?
Mr. Mahil: It represents human rights commissions of all provinces and territories, not the governments. CASHRA is funded primarily by the human rights commissions. It is not an adequately-funded organization. We have intervened only in about three cases before the Supreme Court of Canada. Every time that we intervene, a substantial expense is incurred. It represents the commissions of provinces, not the provinces.
Senator Finestone: The commissions are bodies appointed by government. They are Order-in-Council chairs, are they not?
I am trying to find the route. What is the access that we could possibly have? Canada has obligations to report to certain of the United Nations structures. We have been wondering how we get that done. What is the implementation procedure?How do you do verification before the report goes to the United Nations? Is there any body that has a more powerful relationship to the executive than CASHRA?
Mr. Mahil: In our view, there is no framework that requires Canada's international obligations to be given substantive effect. Canada has signed many treaties and obligations. Those have not been incorporated into domestic law.
Senator Beaudoin: That is our fault.
Senator Finestone: As you know we have just dealt with the pre-study on Bill C-36. Many of us were on that committee.
One of the things that was presented to us, in our discussion of whether there should be a sunset clause, was that we would certainly exempt from that sunset clause the 10 plus 2 resolutions from the United Nations on terrorism.
These are conventions that we signed in a different order. The government gave priority and has put into law and therefore, executed and made it legal to use these instruments. Do you see a potential for a new argument for us to use the other conventions and insist the government move in that direction as well?
Mr. Mahil: Absolutely. There are many concerns raised by people who appeared as witnesses before the committee that considered that legislation. Some of the human rights commissions expressed serious reservations, including the Canadian Human Rights Commission. I am sure that you will be hearing from the Chief Commissioner of the Canadian commission later today.
Some of the clauses of the proposed legislation are more draconian than the 1970s War Measures Act. We are puzzled that this is being done in the name of protecting our freedoms. We have grave concerns. Many of the human rights commissions have grave concerns about the legislation.
Senator Finestone: Mr. Mahil, you and Mr. Ferris lead me to something that is of great concern to me. I notice in your report, on page 14, that you did a cross-country consultation on the interest of the citizens of British Columbia with respect to their human rights legislation, which had a view to making this the most progressive in all of Canada.
In that light, I would like to congratulate you on the award that you won. That is a significant award, and we are all very proud of your having earned that in the name of Canada as well as British Columbia.
You did your cross-provincial check-up, if we could call it that. You point to areas where the entire issue of social and economic aspects come into play. I notice that you did not use the word "privacy" - privacy being a major issue with loss of privacy being a major concern today.
I did a cross-country check-up on human rights, particularly related to the disabled, and the issue of privacy was foremost in people's consideration. In fact, the first of our hearings was in Vancouver. That was where the issue was first raised. The infringement on the right to mortgage and loans based on health information and social condition were of major concern. However, I do not see that being noted at all. Could you tell me if that was an issue? Is it an inferential issue when you speak to your point five, on the subject of prohibiting any request by employers for information by a job applicant?
Mr. Mahil: Thank you senator. I am pleased that you have actually read our submission and are quoting from the submission.
Senator Finestone: Yes, I have.
Mr. Mahil: We do not discuss privacy in the recommendations that we made because there is a separate office of a freedom of information and privacy commissioner in British Columbia. That commissioner deals with all privacy issues.
During consultations in 1997, we invited the public to make its views known as to the kind of protections that it would like to see in human rights legislation in the next 10 to 15 years. As you know, we presented a report to our government that has not been acted upon by the government except for one minor amendment.
In our submission to you, we noted that we made three research reports in the last year or so. Two of those reports dealt with issues relating to individuals with disabilities. You will see that on page 5.
These were aimed primarily at the concerns of persons with disabilities in accessing various government programs and the difficulties they have been having. They were having to produce medical certificates for one department, then for another and so on. That has been listed. We released those reports publicly and presented them to the government. We have not discussed privacy in the reports.
Senator Finestone: Was the SIN number of concern at all? It is supposed to be your personal number, and you are not supposed to use it at all. I wonder, Mr. Ferris, when you were examining social conditions, was the issue of having to furnish SIN numbers on everything that had to be signed perceived as an impediment to privacy rights?
Mr. Ferris: Senator, as in British Columbia, there is a separate privacy and information access regime in New Brunswick. Privacy issues, particularly with respect to issues of disability, are front and centre in our day-to-day human rights administration.
One of the challenges to the right to privacy is contained within the notion of the duty to accommodate. There is a duty on the part of both the complainant or worker and the employer to accommodate. Up to the present date, part of that employee duty to accommodate is disclosure and sharing of information. There is no question.
At the same time, the bar is being raised for employers and service providers with regard to the duty to accommodate. Bjorn and Grismer are landmark decisions relating to that. I would suggest that as the duty to accommodate becomes stronger - and the Supreme Court used the word "impossible" to accommodate as the obligation that is placed on employers and service providers - the corresponding duties on the part of employees and clients hopefully would become lightened.
That is one area of entry for human rights commissions. We receive questions on almost a daily basis with regard to privacy issues. We are generally considering that in the context of the duty to accommodate and the requirement to disclose.
Senator Wilson: You identified that Canada has no framework for incorporating international human rights covenants into domestic law. That is precisely what we are struggling with in the committee.
You have both called for a larger role for Parliament so there is not just executive action. There is so much to be done. What would be the primary thing for Parliament to do? Should Parliament be involved before, during and after the ratification process - which we never hear about until it has happened?
I was particularly interested in your comment from New Brunswick about the Organization of American States regional conventions. Just last week we had a seminar on the Canadian non-ratification of the American Convention on Human Rights. We were told that Canada could probably contribute more to that convention than profit by it, but if we supported it and got into it, that would mean a great deal to Caribbean countries in terms of the environmental clauses in that treaty and in terms of the death penalty, which some of them still have.
I would like a response from both of you in terms of Parliament's role. What do you see as the priority for us? Also, could Mr. Ferris comment on the American Convention on Human Rights?
Mr. Mahil: Thank you, senator. I believe the federal government - and you have to find a way to do this - should promote compliance. I see from your comment that you would like to see compliance from the government with international documents that are signed by Canada. It is not very pleasing to see our country, of which we are so proud, publicly criticized by the United Nations bodies because of non-compliance with treaties that Canada has signed.
A mechanism must be found by Parliament to ensure that any concerns of UN bodies are addressed and that we are indeed not only seen to be compliant but are compliant with the spirit of the international documents that we have signed.
Our national organization, CASHRA, has no role in terms of the work of the Continuing Committee. That is the senior level committee of officials from all Canadian jurisdictions. Perhaps we could find a way of to assign a specific mandate and resources to an organization like CASHRA to ensure that the concerns of human rights commissions are documented. Our concerns are not even being documented now. We must find ways to take our concerns to NGOs because in the official committee there is no mechanism. They need not note our concerns.
Senator Wilson: Are you saying that Parliament might have a role in trying to get on top of the continuing committee issues to do something about those?
Mr. Mahil: Absolutely. That is being done at the executive level. I am surprised that parliamentarians have no role in that.
Senator Wilson: So are we.
Mr. Ferris: The continuing committee is a group of bureaucrats. We are doing the job that we are being asked to do. What should our role be? The committee is getting around and getting things done because it is working according to resources and timetables with which its superiors are content.
In New Brunswick and in one or two other jurisdictions, the commission was actually the body that was submitting reports. That was an advantage. We felt that those reports were important to our daily work as human rights commissions, not just as part of the machinery of government.
Mr. Mahil has mentioned the pitfalls created by the indefinite role of human rights commissions, but within that continuing committee there is a structure over which parliamentary involvement could be superimposed. I am not an expert on the machinery of federal government, so I will not pretend to say how, but it is there and you are there. I see no reason why you cannot be part of the process in a practical sense. You could say whether you think a particular instrument should be ratified and how urgent the issue is. For example, the issue of the sale of children, child prostitution and child pornography took about two years.
It will not be easy, but Parliament is a conduit through which these bodies could report and get approval. Legislation is either a yes or a no, or amendments are made. A process that is already slow would not necessarily be made slower. Some kind of machinery would have to be enforced to give the work that greater sense of urgency that I personally think it needs.
Senator Wilson: That is exactly what we are considering. I am glad to hear you say that because it will help us.
Mr. Ferris: The OAS has people working on this, but for New Brunswick, as part of the continuing committee, it is on a shelf.
Senator Wilson: Might that be a good case study for us?
Mr. Ferris: Yes.
Senator Poy: I would like to understand to what degree the provincial human rights commissions operate independently from the Canadian Human Rights Commission.
Also, can the Canadian Human Rights Commission intervene in cases that come before your commission if there is an objection raised about your judgment?
Last year, the Chief Commissioner came to the Senate and testified in the Committee of the Whole. In response to my question, she stated that most of the resources from the Canadian Human Rights Commission go to education. Is that similar for the provincial human rights commissions?
Mr. Mahil: The independence of human rights commissions has been the subject of discussion for many years. Most commissions report through a minister to Parliamentor to the provincial legislatures. We have been asking for the right to report directly to Parliament or provincial legislatures, as do the ombudsmen and the auditors general. That is not the case now.
Senator Poy: When you say Parliament, are you including provincial legislatures?
Mr. Mahil: In the case of the Canadian commission, it would be the Canadian Parliament. In the case of provincial commissions, it would be the provincial legislatures.
In all jurisdictions, the commissions report to Parliament through a minister, as opposed to reporting directly. The best form of independence would be for the commission to report directly to Parliament.
You asked if the Canadian commission can intervene. The answer is no. We have our distinct jurisdictions. The Canadian commission can intervene only if a case moves further, to a court of appeal or to the Supreme Court of Canada. At that point, of course, any commission can intervene to ensure that fundamental human rights are protected and promoted in Canada.
Resources are a problem for each and every commission, including the Canadian commission. I am sure you will hear that from the Chief Commissioner of the Canadian commission later today. When I met with her this morning, she told me that educational budget is only about $200,000 to $300,000. I was puzzled and surprised at that. That is not very much money. If you are trying to eliminate discrimination, you have two mechanisms. One is education. The other is the redress mechanism. The best forum for changing people's attitudes is education.
All the commissions receive complaints of discrimination. We must deal with them. If we do not deal with them quickly enough, the issue can go to court and we are chastized and criticized. Basically, we end up putting most of our resources into dealing with complaints and very little is left for education. That is the unfortunate part. If we did a good enough job in education, we might be able to eliminate some complaints.
Mr. Ferris: I will agree with Mr. Mahil's comments. However, I will add that I believe the disparities between our various statutes is an issue with regard to the international role, and I have stated that in our submission. I have recommended that the bodies that are charged with examining law reform at the national level, such as the Uniform Law Conference of Canada and the Law Commission of Canada, possibly consider the need for a uniform human rights statute for Canada. There is not one model statute at present. Probably the Quebec Charter is the closest because there is independent reporting to Parliament. It is closely modelled on the European Convention on Human Rights. It has its own shortcomings.
Approximately 10 years ago I wrote a report for the New Brunswick government on the need for reform to human rights legislation. There were 153 recommendations in that report. Basically, it was taking the best of what we had in Canada and recommending that for New Brunswick. I am not saying there were 153 different shortcomings, but there were any number of ways that it could have been done better in New Brunswick, just based on a Canadian model.
The international committee must just shrug its shoulders and say, "How can this be at this level of rights?" However, it is the reality.
Resources are a problem for each commission, even in terms of promoting the reform of our own legislation. We are just so tied down with the day-to-day business of protecting individual rights that examining these bigger issues is very challenging.
Senator Finestone: Senator Wilson spoke about the international issue. You referred to CASHRA. How does it compare to CCOHR, the Canadian Committee of Officials on Human Rights? Which one has the power base? Who are the bureaucrats, and who do they represent?
If we are to do some kind of comparatiave study, Madam Chair, I think the remarks made by Mr. Ferris in his brief are very important. When you consider the 14 different human rights charters across this country, it is no wonder that we are confused when it comes to the international situation. Doing some kind of comparative analysis to determine the big gaps and significant differences is one step. However, considering the international responsibilities that the executive branch has signed us on to, but has not had ratified through the parliamentary or legislative process, is worrisome. Is that because either the CCOHR has the power or CASHRA has the power? Perhaps we must somehow put them together.
To follow up on the questioning that was undertaken by Senator Wilson, we need some direction as to where to put the pressure and how to do the research. We cannot be all over the map. Do we start with a comparative analysis of the 14 charters? Do we consider where the power should be placed in one of those instruments that are already in place, or do we have to find another instrument? We need your guidance. We will ask the next group the same thing, so they can think about that.
Mr. Mahil: CCOHR is a group of officials representing the 14 jurisdictions. They represent the governments of the 14 jurisdictions. They will draft Canada's reports to the UN bodies.
Senator Finestone: They are the Canadian reports people.
Mr. Mahil: In fact, CASHRA, as a body, has no role in relation to that group. There are certain commissions, as my friend Mr. Ferris mentioned, in certain small jurisdictions, where the government may not be able to find someone to represent it on CCOHR, so it may ask its commissioner or the chief commissioner or the executive director to be the official link with CCOHR. CCOHR is the body that comments on Canada's position in relation to reports at the United Nations.
Senator Finestone: Are they high level bureaucrats? Where are they in the hierarchy of the Ministry of Justice?
Mr. Ferris: An assistant deputy minister presided at the last meeting that I attended. He is an Assistant Deputy Minister in the large Department of Canadian Heritage.
Senator Finestone: Not the Department of Justice?
Mr. Ferris: No, he was from Canadian Heritage. There is no question in my mind that the body that honourable senators would relate most directly with, in terms of operations, is the continuing committee. In terms of input and representations for improvements and for perfecting a system and for making it better, that would be CASHRA or the individual commissions. However, as I said before, the bureaucracy or committee is there for a parliamentary group to work with, and that is the continuing committee. Some of these people are quite senior. It is a matter of whether Parliament wishes to work with this group and the extent to which Parliament wishes to make the final decision or interim decisions or whatever.
There is actually quite a process in terms of approval. Because of our federal-provincial structure and because so many of these international obligations affect matters of provincial jurisdiction, there is quite a discipline to the way the continuing committee does its work. It seeks unanimity. That is the reason, for example, for the frequent delays in the treaties. Some jurisdictions are simply opposed to enough clauses, for example, with the American convention, that the federal government may be unhappy about going back to the international forum and saying, "We will sign it with 22 reservations." It is not about to do that. Getting it down to a number that it is prepared to go forward with has not happened.
There is a solid group of people who report to ministers and deputy ministers. They are pretty close to the type of people I would suppose you are dealing with on a daily basis in other work that you are doing. They are there. It is just a matter of how you work with them and how you set up that mechanism from within Parliament to work with them to help them make their decisions - ultimately to give those treaties greater legal force here in Canada. That is the real issue.
The other issue is that as far as the reports are concerned, these are Canada's reports. They receive some type of public scrutiny.
Senator Finestone: If I could interrupt you, Mr. Ferris, we cannot sign a convention unless all of the provinces have agreed to that convention.
Mr. Ferris: No.
Senator Finestone: They cannot have force in that regard, can they?
Mr. Ferris: In regard to the Convention on the Rights of the Child, it seems to me one province did not agree.
The Chairman: We can get back to federal-provincial issues.
Mr. Ferris: That was an important issue. That is exactly what I was referring to. It is a federal-provincial committee for that very reason.
Senator Taylor: I am fairly new to the committee, so I will not go into the reporting mechanism that seems to be preoccupying everyone. When you say "Parliament," do you mean the members of the House of Commons and members of the Senate and not the administration? My view of reporting is that cabinets, federally and provincially, sit on things they do not like so that those things never get to the Parliament. What do you mean by "Parliament?"
Mr. Ferris: In my response, I meant the elected and appointed legislators.
Senator Taylor: You were not referring to the administrators.
In the British Columbia presentation I see no mention at all - and perhaps your commission is not involved - that B.C.'s tendency is to decide what the rights of Aboriginals are by referendum. The Nisga'a Treaty is an example. I do not understand how you can go to a majority of the electorate to get it to decide something as basic as the right to property.
Mr. Mahil: Senator, I feel I should not comment on this matter.
Senator Taylor: That is a good enough answer.
You did say, on page 24, something that did bother me somewhat. You mention, at the top of the page:
...the Committee emphasizes that the right to self-determination requires, inter alia, that all peoples must be able to dispose freely of the natural wealth and resources and that they may not be deprived of their own means of subsistence...How can you say that, when the whole Aboriginal system is based on a reservation system where they cannot sell property and all property is held in common?
Mr. Mahil: We are quoting here from the United Nations Human Rights Committee. We are not expressing our own view. We are simply quoting what the UN committee had to say about Canada's Aboriginal peoples.
Senator Taylor: In other words, you do not stand behind that statement. You are quoting. You give the impression that you are approving that, which I did not think was proper. Anyhow, that is just the opinion of an old Aboriginal rights man.
The other question I have is for Mr. Ferris in regard to New Brunswick. You mentioned the Vriend case in Alberta. I am from Alberta where we do a lot more than train good football teams. I recall, at the time of that case, a leader of the opposition in the Alberta legislature said we could opt out of a clause that would give human rights to Vriend. I do not quite understand. If there are 14 different human rights bodies in Canada as well as the national body, if provinces are allowed to opt out, it seems to me we have a long way to go before we are organized. Could they opt out of Vriend?
Mr. Ferris: Alberta chose to abide by the decision, just as the Ontario government did in M&H.
Senator Taylor: I know they chose, but there was some discussion about provinces opting out. Can they do that?
Mr. Mahil: It is a Charter provision. It is notwithstanding the clause of the Charter because that case came to court under section 15 of the Charter.
Senator Taylor: No matter what human rights are legislated, the provincial governments could opt out.
Mr. Mahil: Alberta could have opted out if it chose to proceed under the notwithstanding clause of the Charter because all legislatures have that right, including the Canadian Parliament.
Senator Taylor: I am in a learning curve and I have some trouble understanding that any province can opt out, or opt out of certain portions. It seems to me we have a bigger task than even Senator Wilson says we have in trying to resolve this.
Mr. Ferris: I have a comment on that. At present, for reporting, much of this is private. Certainly, making it public will not necessarily make it simpler, but will it not make it better? Even the Ross decision that I refer to in our submission, which was a successful defence of Canada that we made under our legislation, is technically a private communication. That is not public. What we are talking about is taking this discussion from a private forum into a more public forum. Thereby, we give it greater strength in domestic law.
The Chairman: We have exhausted our time. It is evident that we could have put more questions. Thank you for your submissions and for bringing certain issues to light. We have been struggling with the implementation of international treaties and covenants into our national law and you have given us more information than we have had to this point about the complexity of bringing in the provincial system. I thank you for your submissions and for the time that you have taken to be with us.
Our next witnesses are from the Nova Scotia Human Rights Commission. I invite them to come to the table.
As I indicated to the other witnesses, we want you to give us advice as to what areas we, as a committee, could legitimately deal with to further the human rights machinery in Canada. Give us information about your commission and any advantages or disadvantages you perceive in the system that might better our ability to deal with and provide for better compliance with human rights obligations. Welcome to the Senate and please proceed.
Mr. James E. Dewar, Q.C., Chair, Nova Scotia Human Rights Commission: Honourable senators, let me begin by expressing the gratitude of the Nova Scotia Human Rights Commission for the invitation to meet with you today. Ms Francis and I are pleased to be able to share some of our ideas and thoughts with you as your committee begins its important work.
We are particularly gratified to be asked to speak to you on the theme of international human rights. In its public education activities this past year, the Nova Scotia commission has been examining the thorny issue of international human rights and where they fit in the domestic context. We look forward to hearing some of your perspectives on that issue this afternoon.
To begin, we would like to touch on our history. The Nova Scotia Human Rights Commission was created in 1969 to oversee the Nova Scotian Human Rights Act. Nova Scotia was one of the first jurisdictions in Canada to invest statutory power in the Human Rights Commission. During the early years of its mandate, the Nova Scotia commission was a leader in the promotion and protection of human rights.
However, through the years, as the field evolved, the Nova Scotia commission did not always keep pace with change. That was compounded by shrinking financial resources in the 1990s, which produced an organization that was sometimes incapable of moving beyond the status quo. There was a lack of investment in new technologies to improve the delivery of service and the practice of record keeping. As caseloads grew, creative management was not incorporated into daily practices. The result was that waiting times for the resolution of cases became extended and the backlog, of cases older than 36 months of age, grew.
When Ms Francis was appointed Executive Director in 1999, she immediately set about trying to address some of the organizational difficulties I have just outlined. I would now like to ask her to detail some of those efforts for you.
Ms Mayann E. Francis, Executive Director, Nova Scotia Human Rights Commission: Honourable senators, when I arrived at the Nova Scotia Human Rights Commission in August of 1999, I knew that change and renewal were urgent priorities. I carried with me into the office of the Executive Director, a vision of making Nova Scotia a leader in practising, studying and discussing human rights. The Nova Scotia commission holds a central role for me in that vision.
I set about identifying critical areas and building the confidence of staff in the need for change. Reviews of internal practices, such as record keeping and finances, were undertaken to ensure that standard practices were up to date. Staff was given greater autonomy in day-to-day decision-making with the proviso that such autonomy was to be matched with greater accountability for actions. In particular, senior managers were held to a much higher standard of accountability than had been expected in the past. All of this was necessary to build a momentum for change at the Nova Scotia commission and to ensure that service delivery to the public was enhanced.
Beginning in July 2000, the main focus of my agenda for change took flight - a two-phased organizational review of the Nova Scotia commission to examine mandate issues and the roles, responsibilities and structures of the organization. I believed the Nova Scotia commission had to be proactive in initiating this review rather than waiting for the results of a broader review of agencies, boards and commissions promised by the provincial government.
In December 2000, the provincial government requested that the organizational review of the Nova Scotia commission be examined to include the Office of the Ombudsman and to look for synergies with other agencies exercising similar mandates in the area of citizens' rights. At the request of the provincial government, I was also appointed to a second post as ombudsman, on an interim basis, to oversee the review. It was no small task, I assure you.
The purpose of initiating the review was to return the Nova Scotia commission to state of the art in human rights promotion and protection, where it was in 1969 when it was first created. Transparency, respect and fairness were the goals for all our dealings with the public. We wanted Nova Scotians to know that they had an effective, well managed and responsive Human Rights Commission. In a cost effective manner, we wanted to engage them in a discussion of what kind of human rights commission they wanted for their province. The draft final report from our organizational review is now being considered by the provincial government.
A key part of my vision to make Nova Scotia a leader in the human rights field has been to reach out to all the elements of civil society and engage them in a dynamic dialogue on human rights. Political leaders, community groups, both internal and external stakeholders of the Nova Scotia commission, leaders of the faith communities, business, the general public and youth have all been included as participants and supporters of our outreach activities. I want to ensure that the Nova Scotia commission maintains a high visibility in its work. These outreach activities are in keeping with the principles of the Human Rights Act as they seek to build peace, understanding and respect for all Nova Scotians.
One example of this outreach was the Nova Scotia Human Rights Commission's "Day of Reflection on the Spirit of Community," which was proclaimed by the province's Lieutenant Governor at an interfaith breakfast attended by a broad cross-section of faith leaders held in Halifax on November 9, 2001. Christian, Jewish, Muslim, Buddhist and Hindu leaders contributed their reflections on what the spirit of community embodies from their perspectives. It was a moving event that deeply touched all those who attended. The day of reflection was also endorsed by all parties in provincial legislation when the provincial government introduced a resolution to recognize the observance.
Outreach to the general public has continued at annual fora on specific themes.This past January, our forum "What is the Future for Human Rights in Nova Scotia?" brought together senators, representatives of business, the media, women, Aboriginals, other visible minority communities and youth for a day-long discussion of new developments and challenges in this ever-changing field. The audience for the event exceeded 100 people - on a day when a snowstorm hit Halifax.
Madam Chair, I know that you can relate details of this event to your colleagues. We were honoured that you were able to join us on that day.
The business community has sponsored recent workshops that have explored the business case for promoting diversity within the workforce. We were fortunate to be able to bring noted Canadian diversity consultant Trevor Wilson to Halifax on two occasions this year to explore this issue with a business audience. With the support of our partners in the business community, we were able to accomplish this at almost no cost to the Nova Scotia commission.
Our observances of International Human Rights Day and the International Day for the Elimination of Racial Discrimination are coordinated under the lead of the Partners Against Racism committee, which has volunteer members from business, and the Nova Scotia commission and community groups that contribute time and resources to its work. Special conferences on poverty and youth and racism have been sponsored by the Nova Scotia commission and the Community Advocates for Rights with Responsibilities, CARR. For its work, CARR was nominated for a 2001 award of excellence by the Canadian Race Relations Foundation. Our coordinator of Race Relations and Affirmative Action, Viki Samuels, who is a member of CARR, travelled to Vancouver to represent CARR at the foundation's conference.
One area of civil society that I know has not always been well served by the Nova Scotia commission is the province's Aboriginal communities. That failing has become a focus of our outreach as we try to engage all of civil society in a dialogue on human rights. To help inform the work of the Nova Scotia commission as it relates to Aboriginals, we recently invited representatives from those communities to sit as members of an Aboriginal advisory committee. The committee will help to guide the Nova Scotia commission as it examines its practices to ensure that it is sensitive to the needs of the Aboriginal community and develops the knowledge and sensitivity of its staff and commissioners. It can also help to build a better level of trust in our work with the Aboriginal community.
I am encouraged by the Nova Scotia commission's network of many volunteers and partners involved in the planning of our outreach activities. It demonstrates to me that my vision for Nova Scotia is shared by many others.
As part of laying the groundwork for my vision, I have also given thought to the role of international human rights in the work of the Nova Scotia commission and sought to encourage our staff to incorporate the topic into our work. In fact, our race relations and affirmative action coordinator recently travelled to Belfast, Northern Ireland to address an international conference on diversity issues.
At present, we have responsibilities as a result of international human rights conventions entered into by the Canadian government and I would like to ask Mr. Dewar to talk more about them.
Mr. Dewar: There are four areas where the Nova Scotia commission currently holds responsibility in the area of international human rights. I would like to briefly outline them for you.
The first is education. Under the terms of the Nova Scotia Human Rights Act, the Nova Scotia commission holds two core responsibilities. The first is to enforce the prohibitive grounds of the act by investigating and settling complaints of discrimination. The second, and perhaps more critical, is to educate the public about human rights. This is an attempt to be proactive and to prevent practices and behaviours that can lead to discrimination.
In fulfilling its education mandate, the Nova Scotia commission is always encouraged to incorporate information about international human rights conventions. Materials produced by the various UN agencies such as UNICEF, the World Health Organization and others provide a good basis for factoring these conventions into our education work. I will be honest and say that there is definitely room for improvement in how we utilize these materials. I know that Ms Francis shares my view that our staff and commissioners must increase their own knowledge and comfort with these conventions. That can be a challenge when so many of our educational activities focus on local Nova Scotian issues. However, the necessity to consider the global context is always there.
Another area is national administration. Nova Scotia, as all other provinces, participates in the meetings of the Continuing Committee of Officials of Human Rights, CCOHR. The Nova Scotia commission, while not a member of the CCOHR per se, has always played a role in advising the provincial government on issues being considered by the committee. It has also been the practice that the Nova Scotia commission has attended the meetings of the CCOHR with the provincial representative in an observer capacity. This has ensured maximum input from our commission into the discussions at the national level.
With respect to reporting requirements, the Nova Scotia Commission assists with the preparation of Nova Scotia's submissions for national reports to the UN, such as those required under the Convention for the Elimination of All Forms of Racial Discrimination. This is part of our role as a provider of policy advice and helps to ensure that the provincial government maintains compliance under international human rights conventions.
In the fourth area, review of new conventions and amendments to existing conventions, we have been and will continue to be involved through the participation of legal counsel and senior staff in the discussions at the provincial level on the optional protocol for the Convention on the Elimination of All Forms of Discrimination against Women and other new and emerging issues involving international human rights.
Again, our role as a provider of policy advice makes us a valuable resource for the provincial government and enables us to have a positive influence on public policy in these areas.
I would now like to ask Ms Francis to offer some reflections on the matter of international human rights.
Ms Francis: One of the challenges of being a credible influence in the area of human rights is the sheer volume of material from the United Nations. It is often difficult to balance the need to review this material with the day-to-day pressures of administering the Human Rights Act. In an environment where resources are necessarily tight, the pressure is magnified. I believe that the Nova Scotia commission currently meets its obligations with respect to international human rights conventions. However, we are always searching for ways to work better and smarter, which brings me to the purpose of your committee's invitation to us. We believe that the central question you are posing to us is this: How does the system of administering human rights work at present, and what role can the Parliament of Canada and its members play in facilitating that work?
In the current climate, both here in Canada and around the world, human rights and those public and independent institutions charged with protecting them have never been more important. We have all watched the debates in the media, in our homes and even here in Parliament about the way to balance individual freedoms with the need for enhanced security for the state. Whatever your point of view on that debate, clearly, commissions across the country are critical players in protecting the public interest.
What role does Parliament and its members have to play in advancing this debate and ensuring that international human rights are respected? As it stands now, and as a result of our Constitution, there is no oversight power afforded to members of Parliament in negotiation or implementation of human rights conventions. That is clearly the prerogative of the executive branch. For those conventions to become effective, provincial governments must be prepared to accept their provisions as so many of the aspects of these conventions touch on areas of shared or exclusive jurisdiction of the provinces.
Parliament could design for itself more of a role when it comes to national reporting requirements on the human rights conventions. Currently, the work of preparing these national reports is coordinated through the Department of Canadian Heritage and CCOHR. This can be and is a slow and laborious process. As a result, an added layer of review by Parliament might have the effect of adding more paperwork to the system without a concomitant, positive spin-off. I would urge honourable senators to consider that fact carefully in your deliberations.
One area where Parliament could have an expanded and positive role with international human rights is education. As was pointed out earlier, one of the most important aspects of the work of the Nova Scotia Commission is public education. It is also the area that operates with the fewest resources. Parliament could assist us in that work by making education and research on international human rights a priority and by contributing to the development of resources and expertise which local jurisdictions could draw upon to enhance their own research and public education activities.
In particular, more work is needed to build an understanding about the way in which international and domestic human rights intersect. Perhaps the creation of a centre of excellence that would help specialize in policy research with respect to these issues could be a consideration. Just as I hold the vision for Nova Scotia as a leader in the field of human rights, perhaps honourable senators can adopt a vision of Canada as a leading force in research and development of knowledge about international human rights and their domestic applications.
There are many potential partners: provincial, territorial, and national human rights commissions, non-governmental agencies such as the International Centre for Human Rights and Democratic Development, universities and community groups. The challenge is to pool our efforts and increase their impact on public debate.
Mr. Dewar: For Canada, facing pressure to embrace globalization, international human rights conventions should be playing a more prominent role in public debate. That is why the Nova Scotia commission invited Senators Andreychuk and Oliver and former Senator Ron Ghitter to participate in our public forum in Halifax last January on the future of human rights. We understood that the international context was central to what the forum was asking Nova Scotians to consider. We sit before you today, encouraging you to continue your inquiry into human rights and your search for ways to play a greater role in building respect for them.
Thank you for that opportunity. We would now be happy to answer, or try to answer, any questions you may have.
Senator Beaudoin: Ms Francis, you said that the treaties are the prerogative of the executive power. However, it is true that usually treaties are signed by the federal authority. We have had an agreement with France since 1965 for Quebec and the other provinces that wish to sign treaties within the accord. That is not a significant problem.
However, the implementation of the treaty is not the prerogative of the executive power. In 1937, the judicial committee said very clearly that provincial matters are to be legislated by the provinces. If a matter is federal, it is up to the Parliament of Canada to legislate, to give effect. I am always surprised that people seem to take it for granted that because the treaty is signed by a minister of the crown in the federal cabinet, implementation should follow. It is not true. We must follow the division of powers provisions. Human rights are not entirely federal and not entirely provincial. They are both.
How do you consider this, from your point of view, in your own province?
Ms Francis: I fully understand that there are those divisions of power. I know that it would not be up to the executive branch to do the implementation because of the federal-provincial-territorial agreements we have in the agreements. However, we caution that we do not add another layer of a tremendous amount of paperwork, should there be something put in place, though I am not sure what that something would be.
What I consider a critical role for parliamentarians is strengthening education and knowledge for the public. For example, there has not been a first ministers conference on human rights since the 1980s. You must ask yourself why is there no conference for first ministers in this country. That is one way to have the issue in the public domain.
It is the responsibility of all levels of government, by having human rights issues in public in the public domain, to answer those questions. The public will be more educated when they hear about what these treaties and conventions mean. It is not good enough to just sign conventions and leave them sit and every two or so years report on them. By the time you get through the entire process of the paper reporting, many things have changed and the landscape has changed. For example, we must review one of the recent conventions about our reporting. There are certain things that we do not do any more and so must be crossed out now because of the delay, the length of time. I feel that we must have public fora and that there must be a first ministers conference regularly and more frequently. It must be yearly, just as there are other first ministers conferences on social, education and health issues. Why not have them regularly on human rights issues as well?
Senator Beaudoin: Each year, in August, the premiers of the provinces meet. Only rarely do they speak about legislation on education because it is a provincial matter. They do not discuss it often or in depth. They ask for increases in funding for education, of course, and I agree with that. However, they do not discuss legislation for education.
It concerns me that provincial legislators would like to have more powers. However, they do not legislate to implement treaties in their own field, such as education. They definitely have one power that has been given to them.
In 1937 the Privy Council was clear in its designation of provincial matters such that the premiers may legislate and they must legislate, but they do not do it. That is the case in many provinces. I do not know what you do about that in your province.
Ms Francis: I would submit that in our province, we honour the conventions as much as we can within our current legislation. The one thing that has not happened in our province, to my knowledge, is a ministers conference on human rights. There is a provincial ministers educational meeting. The provincial ministers responsible for human rights could also meet. I do not think we have ever taken the lead on that in Canada, but I would like to that to happen. That is another part of my vision.
Our reporting, in terms of the conventions, since my tenure with the commission has honoured the international conventions that we have signed.
Senator Beaudoin: Are you interested in taking that further?
Ms Francis: I have such big dreams and visions that I am always interested in taking it further.
Senator Beaudoin: The Canadian Charter of Rights and Freedoms is a beautiful document. That could be the end of it, but it is not. The provincial human rights charters are doing something that we do not do in the Canadian Charter of Rights and Freedoms.
In any case, you answered my question. You are quite interested in occupying the field in practice.
Senator Cochrane: Thank you for your presentation. It was certainly in depth, and I must tell you that we in the Senate have heard much about human rights and the human race issues of Nova Scotia from our colleague, Senator Oliver. He has educated us in depth.
Let me begin by asking you about your funding. You are not, of course, happy with the funding. We always want more. How is the funding allocated within each province? Does the minister of each department allocate funding? Does the minister have guidelines set out, whereby specific funds should be allocated for human rights? Do you know how that is done?
Ms Francis: I do not believe there are any guidelines established particularly for human rights commissions in terms of how the funds should be allocated. I am speaking about Nova Scotia where we have a vote on the allocation of funding. We vote and money is allocated accordingly, probably by the size of the agency, et cetera.
Our budget has not been touched for about one year, so we have been left at the current level of funding, which is $1.6 million. We have a staff of 21 with three offices in Halifax, Digby and New Glasgow as well as one-half office in Sydney. That is down from what it was before I came to the commission. I cannot speak to you about the funding before that time, but to date, I have been able to hold it at $1.6 million.
Senator Cochrane: Do you believe that the funding is sufficient, within Nova Scotia, to do the job that you would like to have done?
Ms Francis: That was one of the reasons that I felt it was necessary to perform the review. I would have to determine whether I could make a case for more dollars, or if, in fact, we were spending the money wisely and doing business in the best way that we could. Of course, I would prefer to have more money. There are many things that I would like to do, but, with the amount that we have, it is my responsibility to ensure that the commission is working efficiently and that it responds to the public in a smart manner.
Senator Cochrane: I congratulate you on your vision. You used the word "change" or "renewal," which I feel is important for Nova Scotia, in particular, given the concerns we have heard about. I am pleased that you are there and having such input for renewal.
Would you highlight some of the commission's key education initiatives? What groups, in particular, have you targeted? Which programs are most effective? What feedback have you received from these programs?
Ms Francis: The act sets out a special provision whereby we must have a race relations education coordinator. The coordinator's role is to perform that outreach, to which I made an earlier reference. Education targets every sector. You cannot target one sector only and expect to have positive change in the community.
My priority, when I came on as Executive Director, was to ensure that we targeted the business community and the education system itself. It was important to go into the schools to educate the young people, at a very early age, and to educate the educators as well.
For the business community, we were able to bring in a consultant to talk about diversity issues and to partner with the business community in such a way that there was no cost to the commission. We seek innovative ways to bring these materials to the public when we do not have the dollars to do it ourselves.
It is also important to hold many public fora. The commission held its second public forum in January, which I mentioned earlier. The feedback from that has been positive because the public wants to hear what the commission is doing. We are always successful in having well over 100 people at these fora. We have plans for more public fora in 2002.
We will be doing our strategic planning session in a couple of weeks. We are doing that because we feel strongly about building up the education arm of the commission, rather than having people perceive the commission with fear. We want to strengthen the investigative arm and we want to strengthen the education part. We find that the programs we use, where we have our own training modules, are positive. We get high marks in the feedback from our education. We can do our education with male employees and union people. It covers the whole nine yards. We are very proud of that. The more my staff does education, the more requests we get for more education. There is more to be done. I do not want to paint a rosy picture of Nova Scotia because it is not the case. However, I am trying to get people not to be afraid to dialogue about human rights. We are getting there.
Senator Wilson: I was thinking about CASHRA, which has no role in the continuing committee. Do you think it would be useful to have that role? You are observers. Is that only for Nova Scotia?
Mr. Dewar: The involvement that we have now is as an observer for a fairly good reason, namely, maintaining the independence of the commission itself. The CCOHR works directly with ministers at the provincial, territorial and Canadian government levels. Although the Nova Scotia commission had been quite actively involved some years ago in the continuing committee, a former executive director determined that it would be inappropriate for the commission to have such an active role because of the appearance of lack of independence from the government. Although the Minister of Justice has responsibility for the Human Rights Act, there is a significant need to have the human rights commission operate independently from that government. That is why, at this point, it is the current view of the Nova Scotia commission that its observer status with CCOHR is appropriate.
Senator Wilson: Is there any role for parliament vis-à-vis the continuing committee?
Mr. Dewar: When you ask about Parliament, are you thinking about the legislature as opposed to the executive?
Senator Wilson: I am talking about elected and appointed members.
Mr. Dewar: Yes. However, I am not able to give you a specific recommendation about how it should be actively involved. I said "yes" because it is important that the Canadian legislature be aware of the implementation with which government departments are involved in the international conventions. The understanding that Parliament would gain from a closer involvement with CCOHR is a helpful involvement from that perspective. As well, there would be an opportunity to publicize to the Canadian people what is happening through the continuing committee itself. That is a benefit that could flow from Parliament's involvement.
Senator Taylor: That was a good brief.
I want to ask about education. I come from the West. I am not one of them, but a great majority of people are concerned about Charter rights and human rights. The courts interpret them not quite the way people feel they should be interpreted. One aspect of education could be played up more when you are talking to people. Most of the education on human rights is based on dignity of the individual, which is as it should be. With the business community and the other community, could you not put more emphasis on education and the fact that human rights is good business? In other words, human rights make for a better economy all the way round. It is a case of being kind to your fellow man. That is good for business. Have you worked on that end at all?
Ms Francis: I am glad you raised that because of my reference to bringing in diversity consultant Trevor Wilson. Trevor Wilson's pitch is the bottom line, which is dollars.I selected Trevor Wilson carefully because I knew that if I were to speak to the business community, we would have to speak to it in a voice that it understood. His bottom line is that it makes good business and economic sense to include the entire population in your selection of people that you want working for your company. Also, because of the global markets now, you must have a diversity of people within your employment to ensure that you are tapping into all the available good talent that is in society. He was a big success because he talked "bottom line." He also said, "If you are to do it for good business sense, then make sure you have the best skills and the best talent there and then you will have a diverse work force." That is how we have approached the business community in terms of considering the bottom line.
There is a moral aspect, too. We felt that we would not get to the business community with a moral piece and that it would be preferable to use the economic angle. We also promote the concept: If you want the economy of the province to blossom and to grow, we must be aware that we have an influence of immigration and Nova Scotia is not exempt from that. We must be prepared for that influx and draw on those talents and utilize everyone in the province as much as we can and not exclude people on the basis of characteristics, gender, et cetera.
Senator Taylor: I am glad to hear that. Earlier, I said that Alberta thought it could opt out of a portion of human rights legislation when it came to the Vriend case involving employment of a gay schoolteacher. Is that the same set-up in Nova Scotia? That is to say, could the legislature opt out, or is that impossible?
Mr. Dewar: That is the same in Nova Scotia since the Charter applies throughout the country. The "notwithstanding" provision in the Charter could apply in the same way in Nova Scotia as it has in other provinces, yes.
Senator Taylor: I understood the Charter applied across the country. The provinces' charters cannot be weaker than the Charter, but I thought they could be tougher.
Mr. Dewar: What do you mean by "tougher?"
Senator Taylor: By that I mean not allow opting out even though the national Charter does.
Mr. Dewar: I do not think they have an opportunity to override that section.
Senator Taylor: Therefore, we could get a similar case. Nova Scotia is not Alberta, but we could have a similar situation.
Mr. Dewar: That would not happen.
Senator Taylor: There is a possibility, though.
Mr. Dewar: Yes.
Senator Taylor: Have you tangled at all with the fishing rights of Aboriginals and human rights - that is, the right to make a living? It runs counter to the non-aboriginal majority.
Mr. Dewar: Our experience with Aboriginal issues is that they rarely come to our commission, in part because Aboriginal issues are more often federal government issues than provincial issues. On the fishing aspect, that is why the lobster fishers are not coming to us on the lobster fishing rights issues. Even on other issues that do fall within the jurisdiction of the Nova Scotia commission, we have fewer complaints from Aboriginal people than we would expect to have. We are addressing that issue.
Senator Finestone: I appreciated your presentation. You have quite an impressive CV. You are a great role model.
In the beginning, you presented a good business case. That is what we need in human rights, namely, a good business case. I was pleased to hear you in that regard.
On education, everyone has indicated that education budgets sometimes get short shrift because of the demand and the tremendous number and case load there is in individual cases.
Has there been any concerted effort to have all provinces work with the Canadian government and the Canadian Human Rights Commission to promote a national message to all Canadians about human rights? Do you not think that would be a good idea?
Ms Francis: I think it is an excellent idea. My first year with the commission was 1999. I came in just as a national initiative was being undertaken to have some communication tool to deal with human rights.
That was in 1999. I was fresh and new at the time. I am trying to go back in my memory. I do remember that there was a move afoot that was successful in coming up with a large poster of some sort to be posted in various provinces, with the same logo. That would be an education tool in terms of human rights.
I believe you are thinking in terms of a federal-provincial-territorial, FTP, type of national project.
Senator Finestone: Exactly.
Ms Francis: I have done things like that with other FPT for a where one province would take the lead. It was successful. It was well staged. Everyone came out with the same statements at the same time. That is an excellent idea.
That would have to be coordinated through CASHRA. As you heard mentioned earlier, CASHRA is a loosely knit organisation. People might not agree, but that is how I see it. There is a rotating chair every year depending on the location of the conference that year. I am not sure that is the most effective way to provide an organisation with some sort of clout, even nationally.
That is a wonderful solution. There is more strength with unity, as opposed to doing separate things.
Senator Finestone: We work very hard to promote a positive attitude against any form of racism. We have the day when we remember the women who were murdered at the University of Montreal. There are many significant days throughout the year. We should have one central, coordinated approach with the bottom line of promoting equality, fairness and civil rights and the issue of what is the Canadian values system. We have such a large new population in this country that fundamental values must be promoted, whether that be concerning the landed immigrant or from those who have been here a long time and have to learn to live, with respect for difference, with each other. How could you promote such a thing in your position?
I was impressed with your business acumen. As a good business model, it would be effective for all Canadians to get the same message at the same time, and not only once a year but several times on important moments in Canada's history. We are so short on the delivery of messages that bring our values system to the fore. I would love to see you try to do something like that.
The Chairman: Perhaps there is a short response to that.
Ms Francis: I will try. Last weekend, I attended a round table when we were talking about what you mentioned. This had nothing to do with human rights, per se. It was on a different social agenda. We found it was difficult to come up with a definition of "values" and what values mean across the whole country. What might be a value to me, may not be a value to Mr. Dewar or to a new immigrant, though it does not necessarily mean that they are not, or will not be, good Canadians. It was very difficult for people to say understand which values were being discussed. Defining "values" would be one of the challenges.
Should there be a national day that deals with equality issues or respect for one another? I did it on a mini scale regarding the "Reflection on the Spirit of Community." It was only for the province of Nova Scotia.
I had my first breakfast with the interfaith group back in 1999. With the events of September 11, I saw this as an opportunity to not just focus on some of the issues that came out of September 11 against particular Canadians citizens. It had to be broader than just one group because the same was happening to African Nova Scotians, Aboriginals, women and others. We decided to reflect on the meaning of the spirit of community. That was our attempt to let people know that the issue broader than just September 11. It is with us all of the time.
When I mentioned this to some people across Canada, they said that this should be spread wider. Obviously, there is interest to do this. When I spoke about it in Cape Breton, the first person to raise her hand was one of the church ministers. She asked, "Do you think we can do this here?" Another participant commented that we are divided even in the area of our faith and our own beliefs that we need some sort of healing in order to be able to come together to do something meaningful for the community.
I would agree with you that there should be something on a national scale to do this. There is a lot of work to get that done.
Senator Finestone: That answer depresses me. However, I understand it.
The word "values" is not a heavily laden word when you talk about how kids should play together or how people should be helpful - help the old person across the road, or for me, please give me a seat on the bus. There are all kinds of things that one can do to show respect and dignity for your fellow citizen. It does not matter whether you are Catholic, Protestant, Jewish, green, black, yellow or pink. It has to do with the common decency of living together as Canadians with respect for your neighbour. If we have to start with an esoteric discussion to define a "value," then you have lost me.
Senator Joyal: Mr. Dewar and Ms Francis, I read your brief carefully, especially the last two pages, which seem to address more strictly the objective of the work of this committee.
When you publish your yearly report, is it discussed at the Legislative Assembly of Nova Scotia in the form of a committee of the legislature that would receive your report, hear your testimony and other witnesses? In other words, is there a parliamentary investigation of your recommendations and to ensure that the budget is right and that the objectives of publication are satisfactorily met? In other words, is there provision for the legislature to act on your report in the way that parliament acts on reports that it receives from various government agencies?
Mr. Dewar: We would be delighted to have that opportunity to appear before the provincial legislature and have it discuss with us the content of the report. In practice, the report is sent to the Minister of Justice and we receive a letter acknowledging receipt.
Senator Joyal: Is there no follow-up in parliament on the substance of the report?
Mr. Dewar: That is not.
Senator Joyal: I would have asked that question of our visitors from British Columbia and New Brunswick, if I had not been delayed. I apologize, Madam Chair, for not being able to participate. That is an important element that we should find out about across Canada.
My second question is in relation to the international instruments and conventions that deal with human rights. Some witnesses told us that there are more than 400 various international instruments that, in one way or the other, have an impact on human rights. Have you ever initiated a study within the confines of your commission on the impact of a particular convention and the need for drawing the attention of your government in your report to the usefulness of acting on a particular convention. Is that part of your regular preoccupation?
Mr. Dewar: No, it is not. The emphasis or consideration of the conventions rests with the Department of Justice. There is a lawyer within the Department of Justice whose task it is to be aware of conventions that apply within Nova Scotia and to advise the Nova Scotia government which provincial legislation must be in accord with the convention. There is no communication to our commission when that occurs.
In the two and a half years that I have been chair of the commission, I do not remember a single instance of a reference at any of our meetings to international conventions. That is not an aspect of our work.
Ms Francis: Mr. Dewar is absolutely correct. That is one of the reasons why, in our forum of 2001, we included the panel of senators to talk about international conventions. I personally feel there is a definite link, but, for some reason, that link was only through reporting. We could be using the link more in our presentations and in our education. I have been pushing my staff to make reference, when making presentations, to the international conventions to which Canada is a party.
In terms of research, we are clearly weak in that area.We just do not have research capability at the commission. I have been pursuing that area somewhat informally. Some universities have been asked why they do not set up a centre of excellence in human rights on the campus. Such a centre could provide research in different issues, not just on international agreements.
Those types of partnerships can be made by all commissions across Canada in order to supplement our shrinking resources. We must seek those partnerships and impress upon our partners the need for more research and expertise to be developed in the intersection between international and provincial human rights.
Senator Joyal: I am delighted by your proposal for centres of excellence. I would have liked to ask this question of the previous witnesses, too. This is such a vast and complex domain that it is unreasonable to expect one or two provincial human rights commissions to structure all the research and to be helpful with a spill-over effect in every area where other commissions need research. A focal point of research and structure is required.
When I was secretary of state, I put forward the idea of a centre of excellence and I was the first one to convince Parliament to establish the first network of centres of excellence in 1983 and 1984. The idea was to identify and connect the university faculties across Canada that share an interest, and to define a capacity of human and financial resources. That would avoid duplication of effort among the universities and create, instead, a synergy of effort where, traditionally, universities were very jealous of their own autonomy.
We live in a globalized world more than ever. This is an important element to help us break through at the provincial level in the implementation of international conventions and instruments.
A common understanding is required among Canadians generally; I do not single out senators or bureaucrats in the public administration of Canada. We sometimes feel that, because we have the Charter and provincial bills of rights, that we are absolutely - I hope my friend Senator Finestone does not find the use of this word to be improper - "kosher" with our international obligations. In other words, we feel we need do nothing further and that we are under the convention. In fact, the reporting system of the United Nations measures levels of implementation.
There is a need to establish a structure that allows for the expansion of the principles of those conventions into public administration at provincial and federal levels. We can name some of these important conventions: the Convention on the Rights of the Child, conventions on women's rights and Aboriginal rights and so on. It is not possible for a single province, within its limited means, to develop all of the necessary capacity.
I do not understand how help could come from a first ministers conference. As you clearly said, unless there is a constitutional obligation to deal with this matter, it will always be a subject to be addressed down the line. If we examine the development of human rights in Canada, the subject has often been a secondary item on the agenda, if it was on the agenda at all.
It was on the agenda in the discussion of constitutional reform in the earlier years, but now that we have a charter and each province has a bill of rights, it seems, on the same assumption I mentioned earlier, that we are complying. In fact Canada has a lot of ground to cover.
Based on your experience, how can we alert the other provincial human rights commissions to build that kind of research structure to allow us to move forward on this?
Ms Francis: As you know, every province has its own mindset in terms of how it wants to approach certain things. I had envisioned a centre of excellence at a university that would coordinate the research of human rights in its broadest scope. I also saw that centre as a depository for research from across the country. I envisioned that as a place where people can debate, a place where government policy can be informed at the national and provincial levels. I envisioned such a centre bringing in people on a yearly basis to discuss the issue of human rights. Whether those topics are international, national or local, it is critical to always have that dialogue. Where we do not have the dialogue, human rights will stagnate.
We do not have first ministers conferences. We must ask why not. Clearly, if a first ministers conference is not held, human rights is not on the radar; it is not on the agenda. Is the public just lackadaisical about this? If the first ministers do not understand that this is important to the public, they will not take the issues seriously.
How do we get the commissions across Canada to embrace such a notion? It would not be that difficult to have them embrace it. The philosophy would be there; they would likely want to do it. It is not such a novel idea, but who will do it first? I approached one university in Nova Scotia, where I felt the centre should be, and the notion was met with the enthusiasm. The response was that the university was interested, but how much money would it take to start that work? The university was interested in the endeavour because it is a good idea that can stretch very far.
When we have our CASHRA conferences, that is one thing to put on the agenda and to determine what the other provinces would think about having such a centre of excellence. Then the scramble will be on. What province will it be in?
Senator Joyal: Who would take the lead on this?
Ms Francis: I am not sure. I only gave thought to Nova Scotia, partly because the vision I had when I came on as Executive Director was that I wanted to raise the province of Nova Scotia in the profile of the country because Nova Scotia was always talked about in terms of its past with Africville and the coal-harbour riots. That is what people know Nova Scotia as. I was determined to try to change that image. One way to change it is by developing a centre of excellence in Nova Scotia.
I did not think about this in terms of which province should take the lead. I just felt we should do this. It is a good thing to do. If we want to change the face of Nova Scotia and what people think of Nova Scotia, it is very important that we take that lead and be able to have dialogue so we can say we have learned from our past mistakes. We are trying to go forward and be an example for the rest of the country and even the world. Our vision could be as large as possible, and it is doable.
Senator Wilson: You have made reference in your report and served in your venerable seat on the elimination of racial discrimination conventions and others. You also said that the commission's staff members must increase their own knowledge with the conventions, but it can be a challenge when so many educational activities focus on local Nova Scotian issues. When you train your officers, is it not possible to help them understand where the international and domestic human rights intersect - at that point, when they are try training? If not, what is the block?
Ms Francis: You are absolutely correct. There is no block. We just finished developing our training module. In fact, it is not finished; we keep adding to it. One of the areas that we did discuss briefly was that we should add a section on international conventions and how they can intersect with what we are doing provincially. It is certainly not off the radar. We think that would be important. In fact, somebody mentioned to me that when doing investigations or writing up reports, reference should be made to some of the international conventions. Even when talking to respondents, reference should be made to them. We have to develop a good framework to do that first.
One of the things that respondents are adept at is getting legal counsel to deal with issues of complaints. Not to accuse them, but sometimes the process is slow as a result of legal wrangling.
Senator Wilson: That is just my point. They should be integrated. I worked for the Ontario Human Rights Commission for some time and spent most of my time on casework. It seems to me it should not be a separate thing. Unless you integrate the international conventions into the casework, people will never read it. They will never understand the connection.
Ms Francis: You are right.
The Chairman: Thank you, Mr. Dewar and Ms Francis. You have been very helpful and you have added to our deliberations.
I welcome the group from the Canadian Human Rights Commission, Mr. John Hucker, Secretary-General and Mr. Richard Tardiff, General Counsel, and Ms Falardeau-Ramsay, Chief Commissioner. You have been before the Senate Committee of the Whole. We have had an opportunity to hear about the work of the commission and to receive your annual report. Senators found that extremely helpful and also felt they were discharging their responsibility, as the commission is a creature of Parliament.
We are eager to hear from you as to how you can help us in the field of human rights as this committee studies what it can do to support the human rights machinery in Canada, the understanding of human rights, and the furtherance of our obligations to international covenants and treaties.
Ms Michelle Falardeau-Ramsay, Q.C., Chief Commissioner, Canadian Human Rights Commission: It is always a pleasure to appear before the Senate committee.
[Translation]
Madam Chair, I would like to begin by thanking you for having invited me to appear today. I would also like to express our support for the initiative taken by senators to establish this committee.
Not surprisingly, in our view, human rights must be given more prominence in the parliamentary landscape, and this committee will go a long way towards achieving that goal.
I have been asked to speak of the mandate of the Canadian Human Rights Commission, the challenges we face in implementing that mandate, and the ways in which Parliament might be able to assist.
I would especially like to talk about the machinery in place in Canada to ensure full domestic implementation of our international human rights obligations. I will speak very briefly about our mandate - which you know quite well - as well as about our challenges, since I spoke about these at length when I appeared before the Senate Committee of the Whole.
I will begin immediately with a discussion of the application of our international obligations and of international instruments to our laws. I will be brief in order to allow more time for us to exchange views later. The text of my presentation will be distributed so that you may consult it if you wish.
Societies around the world increasingly recognize that discrimination and the denial of human rights harms each of us - not just those being discriminated against. Discrimination denies any society enormous human potential. As the members of this committee know well, this was among Canada's motivations when it signed two fundamental international human rights instruments several years ago. I am of course referring to the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights.
Of the countries that have ratified these instruments, not all nations have incorporated the principles they espouse into domestic law. Canada is not among those who have done so. In fact, in his report last year to the Minister of Justice, Justice La Forest recommends that the Canadian Human Rights Act refer specifically to these two instruments. This, coupled with an absence of any independent monitoring of our compliance with international human rights treaties, makes the level of Canada's commitment difficult to measure.
Moreover, among the changes that Justice La Forest recommends to our legislation, he suggests that, given its independence from government, the commission would suit the role of monitoring Canada's performance under those instruments.
His views, clearly, are in line with the Paris Principles, which were adopted in 1993 by the UN Commission on Human Rights, and endorsed by the UN General Assembly. They set out minimum standards for independent and impartial national human rights institutions. Those principles state that national institutions should promote the harmonization of national legislation, regulations and practices with international human rights instruments, and shall contribute to reports that the State must make to United Nations human rights bodies. In Canada, this report is prepared by Heritage Canada, which solicits comments from other departments, as well as those of the commission.
We are currently empowered to review regulations, rules, orders, by-laws, and other instruments made pursuant to an act of Parliament, and we exercise this power by commenting on the human rights implications of legislation. We have recently begun to incorporate international human rights law into our analysis of new government legislation.
A case in point is, of course, Bill C-36, the proposed anti-terrorism legislation. And, in considering our comments about the bill, the commission looked to international human rights law to determine the potential human rights impacts of the legislation. The question of preventive detention has been before international human rights bodies, particularly in the Court of Strasbourg and the UN Human Rights Committee, many times.
Although international law does not prohibit outright the use of preventive detention, the potential for human rights abuses associated with preventive detention is very high and international law places strict controls on its use, in terms of length of detention, the type of evidence allowed, and other procedural safeguards. In fact, in this particular instance, international law provided us with more guidance when analyzing the human rights implications of preventive detention than did our own charter.
[English]
When we considered recent amendments to the proposed Immigration and Refugee Protection Act, introduced as Bill C-11, we stressed the need for consistency between the provisions related to deportation and Canada's binding obligations, under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, not to return someone to a country where there are substantial grounds for believing that the individual would be in danger of torture. Although the act recognizes Canada's obligations under the convention, it also provides that the right not to be deported can be waived on the grounds of serious criminality or security - a standard we strongly believe is inconsistent with our treaty obligations. The bill was passed without taking our grave concerns into account.
As most of you know, the Supreme Court looks more and more to international human rights law to help inform the legal context when interpreting the Charter and other Canadian human rights legislation. In a case heard by the Supreme Court earlier this year, the Canadian Association of Statutory Rights Agencies, CASHRA, of which the commission is a member, supported the argument that the International Covenant on Economic, Social and Cultural Rights should be persuasive in interpreting the Charter of Rights and Freedoms.
Indeed, there appears to be a growing perception across Canada and abroad of a discrepancy between our international treaty obligations and implementation within Canada.
From the perspective of the Canadian Human Rights Commission, this committee's initiative to examine how we might close the gap between international human rights norms and Canadian law and practice is most welcome. We recommend that the government insert into its regular Charter scrutiny of new legislation, an additional step whereby consistency with international human rights law is also analyzed and would thus form part of the information provided to cabinet, and perhaps to Parliament, when new bills come forward for consideration. It should be a regular and systematic part of the legislative process.
The Senate committee may wish to support our suggestion that government undertake regular human rights impact analysis for new legislation and programs as a matter of course. This Senate committee might wish to consider whether to take on this role by, for example, providing human rights input on legislation coming before other Senate committees.
In closing, I am hopeful that my presentation has helped to set out the parameters within which we are operating. Again, I thank the committee for providing this opportunity to discuss these important matters.
I would be happy to answer your questions but before that Mr. Hucker would like to add a few words.
Mr. John Hucker, Secretary General, Canadian Human Rights Commission: Honourable senators, as an observation from someone who has taught international law and who is now working in the human rights field, I have been struck by how cautious Canada and Canadians are about international human rights law.
International human rights law simply does not resonate in Canada. The Canadian Human Rights Act, which is our authorizing law, does not make any mention of the international human rights instruments, although one or two of the provincial codes may make such mention - Ontario for one - but ours does not.
By way of example, when I came to Ottawa in the 1970s to work on immigration law reform, one of the tasks was to incorporate the refugee convention into domestic law. There was a major rewrite of the Immigration Act in the mid-1970s, as many senators know. When I naively suggested that this was a great opportunity to incorporate the refugee convention, the response was, "No, we do not do it that way; we do not do that here. You come from academe, but that is not the way the government operates."
A committee was established, which is the way in which the government operates. We spent many months translating the provisions from the refugee convention into Canadian equivalents, so that people would not feel they were litigating international human rights or international refugee law, but rather litigating domestic standards, which were fully consistent with them. The fear of actually putting something into force that would involve a direct incorporation of international law was very real at that time. I do not know, but it may still be a factor today.
The Chairman: Thank you. I will exercise the prerogative of the chair and pick up on that point before I turn to other senators. In respect of international law, Canadians are, on the one hand, proud of the fact that we are part of the international community and that we have led the way in the covenants and treaties, for example on landmines or our participation in the International Criminal Court, recently, and before that, our participation in the United Nations Human Rights Commission. We take great pride in being internationally responsible and in being leaders in the innovation of all these international arenas and instruments. Yet at the same time, there seems to be something pervasive in Canadian society that our standards of human rights are somehow better than the international ones. Do you get that same feeling when you deal with Canadians? If so, do you have any idea as to why we have this opinion of ourselves as being leaders in human rights of a standard that is better than that set elsewhere?
Ms Falardeau-Ramsay: This is very interesting. I agree. This is what you get as a feeling, generally, when you speak with people concerning the human rights standard. Obviously, Canada is a leader in human rights in the world. We all know that. We all know we are well respected for that.
However, when it comes to examining how we translate that into our legislation, it is another question. When, for example, there is ratification of an international instrument, the government will examine the present legislation and the present programs and policies to ensure it is in agreement with the instrument before ratifying it. After it has been ratified, however, there is not a system to examine the programs, the policies and the legislation that go to Parliament to assess whether or not they are consistent with the international obligations that we have taken up by ratifying those documents. To some extent, it is a difficult proposition because many of the areas with which the international instruments deal are under provincial jurisdiction. However, when we deal with federal issues, nothing would prevent examining the legislation or the proposed legislation or programs or policies with an international instrument lens to determine whether it is in agreement with the international instruments. This is probably one of the areas where we are lacking.
[Translation]
Senator Beaudoin: I would first like to congratulate you. You have managed to summarize in four pages what we have been discussing for months now. The countries who have ratified these instruments have not all added the principles they have subscribed to to their legislation. Canada, for instance, has not done so.
Ms Falardeau-Ramsay: We did so in part through the Charter.
Senator Beaudoin: But we have not aggressively sought perfection.
Ms Falardeau-Ramsay: Especially as concerns the Covenant on economic, social and cultural rights; there is nothing.
Senator Beaudoin: I agree completely. I would like to quote a paragraph from your brief:
Indeed, there appears to be a growing perception across Canada and abroad of a discrepancy between our international treaty obligations and implementation within Canada.
It cannot be said better than that. There are two things we can do. We can try to convince the government of the need to legislate. I cannot understand why the provinces do not do so, not even Quebec, which surprises me greatly. One can understand why they are more interested in signing the treaties, perhaps, but there is the opinion expressed by Justice La Forest who recommends that the Canadian Human Rights Act refer specifically to these two international instruments. We are not asking for the moon. It might take one or two hours to draft the necessary section. I cannot fathom why this is not being understood.
[English]
We ratify the treaty. That is the end of it. Everyone is happy and we go home. No, we just started. We must do something. Even legally, consider that Lord Atkin said we must legislate. If we do not legislate, it means that our international obligations are not there. I will continue to speak like that for months if it is necessary. I wish to say that your memorandum is right on that point. Even the Supreme Court is a bit timid.
[Translation]
I commend the Supreme Court a great deal, and quite often.
[English]
In that field it is timid. It does not refer often to international obligations. It has the right to do so, if it wants. Is there one week to reach that goal?
[Translation]
Ms Falardeau-Ramsay: The issue is very complex. I cannot answer that in two seconds. I commend the initiative of Senator Wilson and of member of Parliament Irwin Cotler who set up this parliamentary group, precisely to push for the incorporation of international instruments in our domestic laws. It takes political will to achieve that.
It also takes a lot of patience, perseverance and perhaps also a lot of education and training. As you said, once we have ratified them, we forget about the existence of these instruments, and as you were also saying, it is a good thing that the Supreme Court comes to the rescue from time to time, discreetly.
The Baker ruling is a start, and I hope that this will continue with the Gosselin case, and that there will more insistence on the use of international instruments, at least insofar as the interpretation of our domestic laws is concerned.
Unfortunately, I do not have a miracle solution, but what I have recommended would be a first step. I am sure there would be other means as well, but we must ensure that the bills, new programs and policies are examined from this angle to see whether or not they are in keeping with the international instruments we have signed.
In fact, as we all know, Canada is lagging behind with regard to a number of international instruments with regard to the report we must make to United Nations organizations or to the Organization of American States. It would also be good to make sure that the reports we make are submitted on time and are impartial and independent. We must do more than simply ensure that the reports have been drafted simply because a report needs to be submitted. In saying that, I do not necessarily mean that that is what is being done, but the risk could arise at some point.
Senator Beaudoin: After all, this is a former justice of the Supreme Court of Canada, and not the least of them, and he said clearly that we should do this.
Ms Falardeau-Ramsay: It would be essential to recognize that our legislation must follow the principles and provisions of the Covenant on Civil and Political Rights, and also the Covenant on Economic, Social and Cultural Rights. Indeed, this is what Australia has done, and this has not hurt them in any way. We would not be creating a precedent.
Senator Beaudoin: What did they do in Australia?
Ms Falardeau-Ramsay: Anyone may file a complaint under one of the provisions of the international covenants with the Australian Human Rights and Equal Opportunity Commission.
Senator Beaudoin: That is their right.
Ms Falardeau-Ramsay: Yes, it is a right.
[English]
Senator Joyal: Could you tell us as best you can, what is the status of the Department of Justice progress report on the study of the recommendation of the La Forest commission and your recommendation on the amendments to the Canadian Human Rights Act? Where is that now? Do you have any intelligence on this, or do we call CSIS?
Ms Michelle Falardeau-Ramsay: The only intelligence that I have is there is still consultation going on with government departments.
Senator Joyal: Do you have target dates?
Mr. Hucker: It goes in flurries. We hear stories that nothing is happening, then, suddenly, they are revved into action. Then September 11 occurred, so it is off the agenda again. We do not know.
Senator Wilson: I was delighted to read that you have begun to incorporate international human rights law into your analysis of new government legislation. You say that Bill C-11 was passed without taking your grave concerns into account. That is not quite true: Some of us took it into account, but we lost. That is important to know.
You are thinking about providing human rights input on legislation coming before other Senate committees. We had Dean Leuprecht from McGill speak on this issue. Two or three members of this committee asked him to give an opinion on whether the proposed Youth Criminal Justice Act is in compliance with the Convention on the Rights of the Child.
Those senators must have gone to that committee. There are 11 amendments to it. I do not know what is going to happen to it. It is beginning to infiltrate the system.
You are recommending that the government insert into its regular Charter scrutiny of new legislation an additional step of assuring consistency with international laws. I agree. You say that this should be provided for the consideration of cabinet and perhaps Parliament. Why do you say "perhaps Parliament?"
Ms Michelle Falardeau-Ramsay: I wanted to be cautious. As a minimum, when there is a document that goes to cabinet, the impact of the international instruments must be taken into account the same way as cost is taken into account. It would be much better if you add that input also at the level of parliamentarians.
Senator Wilson: Exactly.
Ms Michelle Falardeau-Ramsay: You are the ones making the laws. I think it would be of major importance.
Senator Wilson: We think so too. At least I do, I do not know about others.
Senator Beaudoin: We support you.
Senator Wilson: Thank you. You also say that a human rights impact analysis should be included. That should take place, I gather, before ratification?
Ms Michelle Falardeau-Ramsay: Yes.
Senator Wilson: Women have done it around the optional protocol for CEDAW but it is an NGO that has done it. Do you think that it would be better if the government did it?
Ms Michelle Falardeau-Ramsay: I was thinking about doing it not before the ratification of the international convention, but before any new legislation is adopted by Parliament.
Senator Wilson: After ratification.
Ms Michelle Falardeau-Ramsay: Yes. Before we ratify, we examine the existing legislation. Once an instrument is ratified and new legislation is coming up, there is no systematic way to monitor it.
The Chairman: That is an excellent point that has been raised here before. We do not tie the two together.
In your presentation, you state that you have recently begun to incorporate international human rights law into the analysis of new government legislation. I know that you do come before committees and testify, but is there any way that this analysis could be found by individual parliamentarians or committees?
Ms Michelle Falardeau-Ramsay: Usually we examine new legislation and send a letter to the minister responsible for the legislation. When we feel it is very important that we deal with human rights issues involved in legislation, if and when there is a committee, we ask to be a witness on that committee. We testified to the House committee on the Bill C-36.
Senator Joyal: You testified on Bill C-11 as well.
Ms Michelle Falardeau-Ramsay: We testified on Bill C-11 also. When we feel that it is of great importance, we ask to appear as a witness. Otherwise, we will send a letter to the minister involved.
The Chairman: Is that letter or opinion accessible to parliamentarians, should they wish it? In committee, if I wanted to know the position of the Human Rights Commission and the conclusion of its analysis, could the clerk obtain a copy of the letter?
Ms Michelle Falardeau-Ramsay: Yes. I do not see any reason to not have that happen. It is not covered by client-solicitor privilege.
Senator Joyal: The very point that you raise is fundamental to your status. You are an officer of Parliament. The commissioner is not an adviser to any department. There are four officers of Parliament, and you are one of them.
The Chairman: Exactly.
Senator Joyal: Your contribution to the study of legislation is to Parliament as a whole. You may want to inform the concerned minister, but if Parliament asks for your view on some issue, you might not want to answer, but you have to give an answer. You might not have one specifically, but you have to answer.
The Chairman: That is a very good point. You are an officer of Parliament. The point is then back to us. How often have we used your offices?
Ms Michelle Falardeau-Ramsay: That is another matter.
Senator Beaudoin: To put the question differently, do you respond to Parliament directly?
Ms Michelle Falardeau-Ramsay: Yes.
Senator Joyal: This point is fundamental for me to understand the entire process. This is critical to the way that Parliament defines its priority in terms of resorting to your contribution to its debates. The Official Languages Commissioner and the Auditor General are officers of Parliament. You are an officer of parliament. If there is one house of parliament that should pay attention in all its works to its impact over human rights, be it the charter or the Canadian human Rights Act or international obligations, it is yours. You are a privileged expert of Parliament.
Moreover, being an officer of Parliament generally - I am reading the first part of your brief, which you skipped, and I apologize if I seem to be lecturing you - you should not devote all of your efforts and energy only to the study of complaints. That is one part of your job. You are, over and above, the "resource centre" to help Parliament to understand and check on the direction and evolution of human rights in Canada.
This context is very important since September 11. We have seen many bills - you have talked about one, but I could talk about others - where we have embarked, as a society, as a parliament, on many initiatives. Our house, the house of sober second thought, is called upon not to answer to immediate needs, but to measure the impact of those needs on the system. If we do not have the parliamentary instrument - that is the standing committee - to follow up on this, then what will happen to your work? You may table a report one day. You may send it to the Minister of Justice with a nice covering letter. We may even give you a wonderful three or four or six hours of time before our Committee of the Whole in this house. However, at the end of the day, what will have been accomplished?
Ms Falardeau-Ramsay: I completely agree, Senator Joyal, and we might act differently if we had discretion to do what we would like to do. However, we have no choice but to deal with complaints. Supreme Court decisions such as Blencoe tell us that we must deal diligently with complaints. We must do that within our budget. Of course we first address the most urgent. The most urgent is complaint determination.
The Auditor General told us some years ago that we should not be building a backlog. Blencoe says we must respond quickly. This year we have realized that, even after streamlining all our operations, after striving to be the most productive, the most efficient, the most effective in dealing with complaints, we will never be able to deal with the backlog. We can deal with the current complaints flow, but we cannot deal with the backlog.
We must be very cautious. We send more and more cases to the tribunal in order to deal with racial harassment, sexual harassment - cases where credibility is a big issue. That puts a lot of pressure on our legal services. We may at some point have to delay sending cases to the tribunal because we will not have enough resources.
Even though we would truly love to do much more, we cannot. As far as promotional work is concerned, there is little left after salaries and operational budgets. Do not forget that we are a national institution. We had a promotional budget of $200,000. We would need miracles to go very far with that amount; yet that remains a part of our job. We would like to provide this type of expertise to Parliament. We would welcome that role, but we must be funded in order to fulfil that role. We can do it now, to a certain extent, but we cannot, for example, research issues. I told you that when I appeared before the Committee of the Whole in the Senate.
The Chairman: As I recall, when the Canadian Human Rights Act was set up originally, the intention was to prevent discrimination and abuse just as much as to address complaints about such actions. I am hearing that your budget has not expanded sufficiently to allow you to do the education portion of your job. If you are to provide expertise to parliamentarians too, which is a key role in my opinion, the priority given to funding the Human Rights Commission must be rethought.
Ms Falardeau-Ramsay: I agree entirely with you. Our functions of promotion and education are as important, if not more important, than our mandate for processing complaints. Our budget has been cut often in the past and this is ultimately a funding problem. We are blessed with a very committed staff. Our people do not count their hours and they are very good at their work. Otherwise, we would never be able to do what we are doing at the moment.
Senator Joyal: These issues are all complementary to the objective.
The Chairman: Since September 11, the government has instituted massive pieces of legislation that impact on human rights. Resources have been found to deal with those objectives - and appropriately so. RCMP, CSIS and immigration people who work for our security have received funding. I maintain that the protection of our human rights, the proportionality issue, is also important.
Have you approached the government or has the government approached you to say that you should be part of the package? The underpinning of our society is found in the values that we are striving to protect. If we alter those rights with new legislation, we must expand our analysis of the impacts. If you have not made that approach, perhaps someone should be doing that on your behalf.
Ms Falardeau-Ramsay: We have done a bit of that. I will ask Mr. Hucker to say more. Can I tell you frankly that I do not have big hopes? This human rights aspect often falls by the wayside. I would welcome all the help we can get to be considered in that package; you can be sure of that.
Mr. Hucker: In response to the question about approaching the holders of the purse strings, we have done that for the immediate short-term needs, which are quite acute. Madame Falardeau-Ramsay mentioned our legal services. We were at a point some weeks ago where we appeared to be unable to represent the public interest in individual cases before tribunals. We have gone to the board, and I think it will give us some short-term funding for this year. It does not want newspaper headlines where the commission is not able to argue public interest issues before a human rights tribunal.
For long-term needs, we are not likely to be funded, at least as things stand now. To respond to the sorts of issues that the chairman and Senator Joyal have raised, there is a need for major restructuring along the lines Justice La Forest recommended, which would enable the commission to stand back, not become totally focused on individual cases, select the significant ones and take a more strategic approach. We try to do some of that. The law now says, "You shall investigate every complaint," - not "you may," but "you shall" investigate. "Investigate" means write a report, conciliate, and, if necessary, as the Chief Commissioner said, take it to the tribunal. That is absorbing our resources.
When we say we are starting to examine policies and legislation from an international human rights point of view, we are doing this on a modest basis. We are just starting to do that.
Senator Joyal: I want to come back to the substance of your recommendation in terms of international obligations of Canada. As you know, the Minister of Justice is requested in the Department of Justice Act to certify that a new bill is in conformity with the Charter of Rights and Freedoms. It is an obligation, and when a government bill is tabled, it is presumably certified. Somebody, somewhere, has gone through the process of checking the bill according to the Charter's provision. As you know, this study is never made available to Parliament. Rarely would the Minister of Justice table the advice that he or she has received on this.
If we are to add to the scope of certification by the Department of Justice, in my opinion, it should be through the amendments of the Department of Justice Act whereby we would add, to the Charter requirement, the Canadian Human Rights Act, international obligations and the related international instruments.
The Department of Justice generally seems to be rather on the defensive concerning recognition of the obligations that Canada has accepted in signing those treaties. As I said to previous witnesses, the impression I get - and it is an impression and might be unfair and we should not be unfair in the human rights standing committee so I want to give the benefit of the doubt - that the prevailing perception is we signed all those instruments, but they are in the domain of good intentions. At the table level in the Government of Canada, we have a Charter, a Human Rights Act and that is all. Since the Baker case and the Burns and Rafay case, which was a very sensitive issue, the court has recognized that Canada has to live domestically by what is says internationally. We cannot be in all the international fora preaching for this or that and then introduce legislation in Parliament that seems to be in contradiction with what we say internationally. As you have said, there is nobody to check that. There is no arbiter of that.
Unless there is a clear obligation, a clear responsibility on behalf of the Minister of Justice to certify bills, it will be difficult to run after our tail, to use an image, to try to catch up after the bill has been tabled. It is a little difficult. I have been in Parliament for a certain number of years, and I will tell you to try to ring the bell on the government's door that this bill is in breach of international obligations.
[Translation]
This will not happen any time soon. There is still a great deal of resistance in recognizing that we must from now on interpret the Canadian Charter of Rights and Freedoms and the various Canadian human rights laws in the context of international accords, and I might add to substantiate this - this has been pointed out here previously - that over 400 international instruments allude to or deal directly with human rights.
We have no consolidation, compendium or even a single source we could consult. Moreover, insofar as the interpretation of international convenants is concerned - witnesses also explained this - there is no unanimity. This is an area which by definition is very fluid. There is no complete certainty to be had in this area. In practice, do you not think that the recommendation to amend the Minister of Justice's law in order to oblige her to ensure that bills are in keeping with Canada's international human rights obligations, is the fundamental reform to be brought to the system?
Ms Falardeau-Ramsay: That would be an excellent reform. That is why, as well as for the other reasons you mentioned, I recommended that this be done through a cabinet document. In this way this would already be done at the administrative level and parliamentarians would know that consistency would be ensured. More specifically, it would be preferable that this be done through an amendment to the law by the Minister of Justice. This would be a very positive obligation.
Senator Joyal: The problem we have as parliamentarians is that when we are faced with a bill which raises issues involving Canada's international obligations, like Bill C-7, and the minister and her representatives tell us that it is perfectly in compliance with the Charter and our international obligations, they can explain this to us and make this affirmation formally in our debates, but we do not have access to these documents. In the exercise of our responsibility as legislators, your participation in these debates is essential. You are Parliament's resource person, an officer of Parliament, and in a context where we have heard positive statements about compliance, but where questions persist - not to say doubts - we must go beyond those reassurances in order to satisfy ourselves that the bill in question does indeed comply with Canada's international obligations.
When we go through this exercise and must satisfy ourselves as to the expertise involved, if the commission were to become a permanent witness before this committee - and even before the Committee on Legal and Constitutional Affairs, where, traditionally, this type of issue is raised - your presence at our debates would allow us to go beyond the pure and simple statement that the bill is in compliance. That is one area where we will have to make recommendations. How can this committee improve the system so that in future Canada's international obligations are better reflected in Canadian legislation and decisions?
How can the system be structured so as to guarantee that the knowledge will be put at the disposal of the government in a consistent manner? If this is only done sporadically, we only need to one day be replaced by someone else, or be busy with other duties, for our compliance objective to slip.
Ms Falardeau-Ramsay: We would be willing to undertake to provide this kind of service. It is simply a matter of financial resources. I share your vision of the role which the commission should play. This would provide an impartial perspective, and a certain distance.
[English]
The Chairman: I want to thank the witnesses for staying later than the allotted time and, in particular, I want to thank you for succinctly giving us good ideas on furthering human rights machinery on complex issues. You have hit the nail on the head. Some of the key issues are dealt with in your paper and in your elaborations tonight. I hope that you will find some of the fruits of your labour in our report, as we will highlight some of the things said today.
Honourable senators, we had indicated that we would be attempting to file our report before the Christmas break. Our researcher, our clerk and myself have been working on a preliminary report that, hopefully, will be ready shortly for a first consideration by the committee. Currently, we are not scheduled to meet on December 3. On December 10, from 4 p.m. to 7 p.m., we will move our meeting to the Victoria Building. If we can do a report, and if committee members are satisfied with it, I intend to move to file it before Christmas. However, we may have to sit at some emergency time. I will get in touch with all of you to find some appropriate time to finish off our report.
The report will be a background about what this committee is and what it can do, including some rationale that we have heard for the continuance of the committee. We have heard some eminently good suggestions that we can put to the government immediately, namely, that study and action are needed. We can then frame others as to what appropriate areas need more in-depth study. Those will have to be put in a study format and be presented to the internal economy committee and the Senate as a whole.
I sent a letter asking anyone who is interested to provide comments about a long-term, in-depth study. We heard about six major areas and we must hone it down to two or three. I look forward to your comments.
The committee adjourned.