Proceedings of the Standing Senate Committee on
Human Rights
Issue 5 - Evidence, December 10, 2001
OTTAWA, Monday, December 10, 2001
The Standing Senate Committee on Human Rights met this day at 2:40 p.m. to give consideration to a draft report and 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: Honourable senators, I remind every one that this is International Human Rights Day. This is the day when we take note and account of our international obligations under the Universal Declaration of Human Rights. I am very pleased that we are meeting in public to discuss a draft of our committee report.
For the benefit of our viewers on television, this is a new Senate committee, which was set up in March, and it is the first committee to deal exclusively with human rights issues. Our first study has been a wide-ranging and intensive examination of human rights issues. We aimed at making immediate recommendations and identifying issues that will require more specific study in the future.
Later today, we will hear from representatives of the Manitoba and Saskatchewan Human Rights Commission.
Senators should have received a revised draft of the report we discussed last week. The changes are only minor corrections reflecting comments that were provided to me and the ongoing process of editing in both languages.
None of the changes to this point are of a substantive nature. However, this is our opportunity to deal with any additions that we wish to make to the report.
The report incorporates most of the comments made. There is an additional one suggested by Senator Wilson, which could be construed as substantial, and Senator Finestone may be raising some issues today that have not been brought to the attention of the clerk, the researcher or myself.
One of our recommendations deals with the working head of delegations to the next United National Human Rights Commission. The nominal head of the delegation is usually the Minister of Foreign Affairs, or a minister, and we are not recommending a change to that. However, we are recommending that the working head of the delegation be of ambassadorial status and that they be a senior official carrying the weight of understanding and responsibility from the Canadian government.
Senator Wilson made a comment that I thought was very valuable. We discussed it, although we did not really know the lay of the land. She said that there should be room for a delegation of parliamentarians from both houses and all parties as part of the commission for a substantive time. We did not recall the officials to find out exactly what the position is. Since we have a new minister in place who has had a lot on his plate with things like Bill C-36, this is a very valuable recommendation, but I am not sure we would have the substance upon which to base it in a report.
I asked Senator Wilson if it would be all right if the Chair and Deputy Chair drafted a letter to the minister saying that we believe it would be in Canada's best interests to have an all-party delegation involved at the UN Human Rights Commission for a substantive period of time.
This would be a learning process for parliamentarians as well as a time when parliamentarians could interact with their counterparts around the world. It is important that Canada reflect its Parliament in the commission.
The next UN Human Rights Commission will be very important due to the terrorist activity that has occurred. It will involve the fallout of what is happening in Afghanistan and what is happening in many countries with regard to changes in human rights.
Therefore, the UN Human Rights Commission will be dealing with many substantive issues. Not only is it necessary that we have someone ambassadorial, something that Senator Finestone has always said, but also that parliamentarians should be part of the equation.
With Senator Wilson's concurrence, and with the comments of any other senators, I would like to deal with this by way of a letter to the minister, making our suggestion. That way, it could be immediate to him. He can respond and say, "I was contemplating that anyway," or, "What do you have in mind?" We could handle it that way, rather than trying to change the report at this time.
Senator Finestone: This is tongue in cheek, but I wondered if when you write the letter to the minister you should say, "Would you consult the whip first?"
[Translation]
It is not a minister who leads either the work or the members in the House. It is the whip and the House leader who decide that they need something or someone, because some bills have to be put to vote, right?
[English]
I do know that there was a time when they sent delegates for a period of three weeks during what must have been a dead time in the House, or a time when people were not involved in active legislative process. You cannot suggest that members should be away for any prolonged period of time while the House is in session and while they are carrying out their responsibilities to their constituency. You must be in your riding at least once to week to meet with your constituents. You have phone calls to answer. It is important to become effective. When our season does not conflict with the UN season we could be effective, for a week at a time on an ongoing basis once every few months.
I cannot see it otherwise. That is my personal reaction. I would have loved that kind of opportunity, as would everybody around here, but I do not know how practical it is.
Senator Wilson: It is fine to consult the whips, but independents are automatically outside that process. It is important. We were outside so much of the process, that this one I refuse to give up. I would put tongue in cheek on that one.
I was there last June with an NDP and a Liberal member. We were there for only four days, but it was invaluable to me to understand how it works. You do not have to be there for a prolonged period, but it is essential. It happened two years ago under Minister Axworthy. I do not know whether Minister Manley continues that.
I would be in favour of pressing that. If there is any chance of getting a firm recommendation in the future, we should not loose track of it.
The Chairman: If we deal with this matter by letter, it will go directly to him and he will have to deal with it. I hope we will get a favourable response. If there is any need to take it up as a committee later, we can do so, but if it is starting to work, then perhaps the department or minister can advise of that process since we signalled it.
Senator Wilson: For example, there is a week in March when we do not sit.
The Chairman: You were saying that you want independents to be involved and Senator Finestone was saying the whips should be involved. We can craft in our letter that we are saying that people who are committed to this area are interested in this area and are well versed. It is technical and you must have a certain amount of background to pick it up. I can understand why the four days for Senator Wilson were valuable, because she had the background going in there for the four days. Senator Finestone and many of the senators would, after sitting on this committee, be well prepared to go in and it would not be then a time factor. It would be helpful if we could craft those thoughts into a letter to the minister.
Senator Wilson: Be careful because the usual thing is to send it to the whips.
The Chairman: It would be to Minister Manley.
Senator Wilson: I am saying to please include the independents, if necessary by name.
Senator Beaudoin: Senator Wilson is right.
Senator Finestone: Madam Chair, that is fine as long as we do not say, "long periods of time." If you say a full week at a time or something, that indicates you are not expecting them to be gone for three months.
In that letter, it is interesting that in the summary of recommendations, the first point we have is to send a letter to Manley. That is good.
Senator Joyal: The summary recommendation, on page 3, the third line says that there is a need to ensure a strong Canadian delegation. The word "Canadian" could include parliamentarian, but it could include anybody from the NGO or any provincial government or so forth. "Canadian" is an encompassing term. Is it the intention of the members of the committee to be more specific on the description of the delegation?
The Chairman: When the report was drafted, we were saying we want a strong Canadian delegation, not necessarily restricted to parliamentarians and members of the bureaucracy. The government should consider including NGOs.
Senator Joyal: The word "strong," according to what I gather from your own statement, is that you want to have people who have a background or experience in the field of human rights. If you appoint members of Parliament, or chose among members of Parliament, the delegation should be composed from members of Parliament in both Houses who have historical background in the field of human rights and not people who are on the list because they want to travel.
We should define what we mean by "strong.""Strong" does not mean abundant or quantitative, like the Canadian delegation to Durban last summer. Apparently, there were 350 people who came from all walks of life. Is that what we mean by "strong?" That should be qualified. Otherwise, it is so generous that anybody can put in it whatever he or she wants it to be.
The Chairman: Do you have a different wording that we could incorporate there?
Senator Joyal: As you said, it should be people who have been active in the past in the field of human rights. That is easy to define, which is what we want. I am not a member of the committee, but that is what I read from the interventions that have been made on the committee.
The Chairman: Would the wording "well informed on human rights issues" cover your concerns?
Senator Joyal: I suggest using the words "active and informed."
Senator Wilson: Is this wording open to change?
The Chairman: The letter was geared to parliamentarians to be a part of it. Are we agreed that we will do that? Are we agreed that the chair and deputy chair will be tasked with writing that letter and sending it out?
Hon. Senators: Agreed.
The Chairman: We are agreed that we incorporate the thoughts that have been stated to this point. That was the one outstanding, substantial matter that is not in our report.
The report was drafted taking into account two things. One is that we have heard from a number of witnesses whose occupation or preoccupation is to examine and contemplate human rights issues and the machinery. These people gave them their advice.
The second thing this report takes into account is that unfortunately, we will lose our deputy chair. That has nothing to do with her capabilities, because she certainly has excelled, but we have a rule that senators have to retire at age 75. We could discuss whether that is a human rights issue, but nonetheless, I was mindful that it would be appropriate to get our report out in a timely fashion. I wanted that done before Senator Finestone leaves. I would like that to be our guiding principle.
The report looked at the evidence from our researcher, and it was to pull out the study areas that we could examine. What were the witnesses telling us? What were we telling each other? If you look at the back of the report, you will see that the issues for further study are enumerated. Those are presented in a global way, although perhaps not in the wording that some of us wanted. However, it is simply to touch upon the areas of concern.
On page 31, we have enumerated for further study Canada and Human Rights Treaty Bodies. This includes the entire area of how Canadian society inputs with the government as we prepare new covenants, how we address those issues of Canada's performance and progress in respect of rights set out in the convention, and how we determine the government's response to the UN committee's reports.
That entire area of pre- and post-reporting to international organizations was the cause of much discussion and the cause of much interest from our witnesses and from various senators around the table. That is an area we would consider studying.
The other area concerns Parliament and the treaty making process, respecting our federal-provincial system and respecting that the executive has the authority to sign and ratify conventions. Some of the witnesses pointed out there is what we call a "democratic deficit," and that we do not know too much about the treaties that the government is signing.
We are then asked to look at enabling legislation, and perhaps we are not well equipped in Parliament, or as citizens, to do that. For example, in Australia, there is a process whereby the public, at least the concerned constituency, is contacted to talk about certain areas and issues when a convention is contemplated. There is also a role for government to study the bills and to give the best advice to the government before it signs and ratifies.
That is only one example of modern-day changes to constitutional issues. Rather than saying we are addressing any constitutional issues, we did not hear one witness say that, this should be a role for parliamentarians and there should be an education to NGOs. I will go through the areas first.
Another area is legislative implementation of international human rights. The fourth area is in respect to reviewing proposed legislation for consistency with human rights. We want to be assured that the laws in Canada comply with human rights machinery in Canada and our international obligations.
Another area of study is the international human rights and Canadian federalism. That is self-explanatory.
Another area of study is human rights treaties not yet signed or ratified by Canada. It was pointed out that Canada has not signed and/or ratified some conventions. There may be some compelling reasons why Canada should not sign them or why Canada should sign them with reservations. Simply, it is not in the domain of Parliament or the public as to the status of these. Sometimes we are faulted unnecessarily. It is a good time to review them, bring them up-to-date, and to get at least the best thinking on the outstanding treaties.
There was much discussion in our committee about the Canadian ascension to the American Convention on Human Rights. Canada joined OAS, but has not signed on to the American Convention on Human Rights. There was discussion that, to finish Canada's commitment, we should be signed on. There was talk that we could then have a salutary effect on many other countries and be of support and assistance to other countries that have signed on because of our mature system of human rights machinery.
A final area that was identified for study is the right to privacy. I need not say any more.
All areas are available for examination in detail, both in our report and in the minutes of our meetings, where the witnesses testified.
I assure all senators that we are not making a decision today on any one of those study areas. We are saying that they are potential areas of study that have been pointed out to us, and that we can do these or others, and that will be for tomorrow. When we finish this phase, we will look at these to determine feasibility, and put a plan of action and cost in place before we proceed. These would be brought back to the committee to select what we want to handle, what we think we cannot handle and in what order we wish to handle them. That is the issue for further study.
Senator Finestone: I am pleased to see your comments in the report. I compliment you and the staff. This has obviously taken many hours of hard work and diligent organization. The changes that we make could never have occurred if you had not put it together in such a succinct and orderly way.
Although I have some concern with the importance of achieving the goal of March 31, 2002, I am more concerned with the principle, the policy and the follow-up. I believe that this committee should conduct an oversight of the committee of officials on human rights and the ministers round table. I think it says in the report that the ministers have not met for 13 years.
The Chairman: We have a recommendation that they meet.
Senator Finestone: I know. This committee has to find out how it can access and what the roots are for having a handle on what is going on out there in the executive world. What is going on in the executive world is an inefficient ministerial round table that does not meet around concerns involving international or national human rights. They do not look at the kind of responses their continuing committee of officials of human rights needs to answer our government commitment. They have cut out the provincial ministers of human rights. Therefore, there is no way that we can follow what the bureaucrats are doing and how they are organizing their report, let alone what they put into that report.
If ministers are not meeting, how do we know the ministers have a word to say when these reports go to the international human rights tribunals or report committees? I believe that section B needs a bit of beefing up. It needs to attend to this committee's concern in the name of Parliament to oversee what is going on. We might miss the March 2002 deadline. I hope we do not, but we might. Notwithstanding, we have a recommendation of where we would like to see this committee go, along with the responsibility of that continuing committee.
The Chairman: Thank you for the comments about the report. It was difficult. You can understand that resources are scarce. We have had a phenomenal job done by our researcher and clerk who have had to cover other emergencies, et cetera. We had hoped it could be done in on orderly and timely fashion, but I think they were running constantly. I can tell you that Mr. Goetz and Mr. Heyde were working weekends to get this report out. I thank them for that.
You have now gone to our immediate recommendations as opposed to our ongoing study. I want to address your concerns and then go through the report more methodically.
We want to be sure that the recommendations we make now are ones that do not need further study, clarification or necessitate bringing back further witnesses. Could we say certain things now? You are talking about oversight. I think it would be fair to have more discussion and more study on that matter.
When the department came before us, I enumerated how many outstanding reports there were. Canada had not met its obligations to file a report within certain time lines. They gave us an enumeration of how many reports were outstanding. At that time, as I recall the evidence, they said they hoped to bring them up to date by December 31, 2001. That is two weeks away. Following good parliamentary procedure, we extended that to March 31. That will give them a little more time to comply.
I would think what we will do is see if they have complied. If they have not, we will bring them back to tell us why. Out of that we should see what kind of oversight is necessary. That could be one of our ongoing studies.
Rather than add more now and pre-empt whether they are doing it, we should put that aside for further reflection in a further study, and it will be red-flagged for that purpose. This is all we can demand of them at this time. These are to be short and crisp recommendations that we feel comfortable giving without further study.
I would not be comfortable giving the right advice to government on oversight, for example, if we did not have further study, along with some experts and department officials to tell us how to go about that.
Senator Finestone: I was not touching your summary of recommendations. I was referring to point B on page 42. It is within that point B.
The Chairman: Those are immediate recommendations.
Senator Finestone: I see. Where is the future?
The Chairman: It is further on. If you look at our ongoing studies, what you have asked for will be part and parcel of that study, should we do it.
Mr. David Goetz, Research Officer, Library of Parliament: The issue of creating an ongoing process to review, in particular, the reporting process of Canada to the international bodies is an issue identified for future study. It is recommendation A, Canada and the Human Rights Treaty Bodies, starting at page 31. The immediate recommendation simply confirms or puts our reinforcement to the commitment they made to get their outstanding treaty reports, I believe, by the end of the fiscal year. This reaffirms what they promised.
If we decide on and implement some kind of committee oversight of those outstanding treaties, it may affect their deadline. We would have to decide what we want to give a priority to.
Senator Finestone: I thought that it was untenable because I remember that they had more than enough reports that they had to table. If you come back in February, how would you possibly be able to review those reports in time to have some kind of feedback and time to make any changes we thought were important? I presume there would have to be quite a bit of work when you review a report. I only saw the oversight on the ongoing committee responsibility when we put the parts of the picture together. That was where I wanted to see that.
I do not get the sense that that is what we mean in this second part, even if it is the ongoing, because it does not refer either to CASHRA or a process, and I think we should say something about a process. It may be editorial, but I would like the word "process" set in place.
Mr. Goetz: Do you mean in recommendation B on page 42?
Senator Finestone: Yes.
The Chairman: It was not intended in the ongoing studies to be exhaustive. It was simply to signal those areas. We would have to come back with specific recommendations for further study. That is when we would be picking up the kinds of points that you have.
Senator Finestone: Very good. Thank you.
Senator Wilson: There are some strong recommendations on pages 48 and 49 that are along the federal-provincial lines that we could follow up. I look upon this report as preliminary. It is a plan for where we hope to go. There is a lot that has to be filled in. It allows us to build on what we have already done.
When I got the report, I pulled out all the transcripts and reread them and tried to go through with a fine-tooth comb. I think that most of the points have been well picked up. If we look upon it as a preliminary plan for what we will be doing in the future, it is excellent.
The Chairman: Some of you have given your points to the Chair for adaptation, and those have been included. Some of you have indicated that you substantially agree with the report. I know that Senator Finestone has not had the time to go through it.
I propose that we address the sections that we will be bound by, which are the summary recommendations on page 3. The other part of the report deals with possible studies, which do not have to be quite so fine-tuned because we will be coming back with specific recommendations and at that time will put them in better form. As Senator Wilson said, this is an ongoing process. We are agreeing to the summary of immediate recommendations that start at page 3. I propose that we go through these and ensure that they say what we want to say.
There will then be some editorial comments that Senator Finestone wishes to have included. They are acceptable and will improve our text. It is suggested that this committee give the Chair and Deputy Chair the responsibility to edit this report further. If anyone wishes to change any words or add any nuance, the Chair and Deputy Chair can handle it before the report is finalized.
We have already made one change to the first recommendation on page 3 by noting that we will insert something other than the word "strong." We want to say, "an active and informed Canadian delegation of members who have solid background and experience in human rights."
Does anyone disagree with that change? That will take some editing because that recommendation was for an ambassador.
Senator Beaudoin: Do we not want that anymore?
The Chairman: Yes, we do, but we want to include wording to express what Senator Joyal wants. We will go on to say that this is also true of the ambassador. We will have to rework that wording.
Are there any other proposed changes to the first recommendation?
Recommendation 2 is that the Government of Canada, in cooperation with its provincial and territorial counterparts, take the necessary steps to ensure that all Canada's outstanding reports to the various international human rights treaty bodies are submitted by March 31, 2002.
We have already had some discussion about that. The department said that it would ensure that these outstanding reports are brought into compliance by December 31, 2001. We are saying March 31, 2002. We are giving a 90-day grace period to ensure that they will comply as they said they would. It is also a signal that we consider these reports to be very important and Canada's reputation with regard to compliance is at risk if they are not submitted when required.
Senator Beaudoin: I see that the territories are always included. Are they always concerned with the subject matter? Do all three of them make a report?
The Chairman: Yes, they do. You are questioning why, with a federal-provincial system, we identify territories. We are not reinterpreting the term "bicameral." There is a process for putting reports together, and that process includes reports from the territories, from the provinces, and from the federal government. The report to the United Nations is based on the three, and that is because the territories are a unique administrative unit and carry some of the delegated responsibility. They have it set it up that way.
CASHRA, the Canadian Association of Statutory Human Rights Agencies, also has a representation from the territories at the table. They are recognized as an administrative unit.
Senator Beaudoin: However, they also have delegated powers only in that field.
The Chairman: This is how they set it up. Are you questioning that the territories -
Senator Beaudoin: I do not question anything. I just want to know. The territories exist only by delegated powers. They legislate to the extent that they receive that power from the Parliament of Canada.
Senator Kinsella: Under that delegated authority, they enacted the Yukon Human Rights Act, for example.
Senator Beaudoin: It is only at the federal level that we are bicameral.
The Chairman: Yes. I have asked our researcher to go through the report to ensure that we are not saying anything with regard to territories that goes to the legality of our federal system. This goes to the functioning of an administrative process and in there they are included as we have stated.
Senator Beaudoin: Even if they do not have the legal power?
Senator Kinsella: Their Minister of Justice is the minister responsible for human rights. He or she attends any federal-provincial-territorial meetings of ministers of human rights, but there have not been a lot of them.
The Chairman: The researcher reminds me there is a territorial component in all of the reports that are issued. We are not inventing anything or using language they do not use. We are simply indicating a process, and it is an administrative process, not a legal categorization.
Senator Taylor: I reread the reports and the minutes of any meetings I missed. We seem to be putting a great deal of emphasis on our foreign treaties. That is typically Canadian. We never recognize the mote in our own eye but always know what is wrong with everyone else's country. There is very little in the recommendations on things we can do within Canada with the exception of recommendations 7 and 8.
I am unclear about where the Aboriginal governments belong. They fall between federal and provincial jurisdictions. If we have trouble with human rights, it may be with Aboriginal people. They are left out.
The Aboriginals have a form of government and we more or less recognize that. If we have problems in the future, it is more likely to be in that area.
This report speaks to territorial and provincial counterparts, and the federal government, as well as executive legislative functions. I do not see a reference to Aboriginal government.
The Chairman: In this recommendation, we are not doing a full study of whether the process in place is adequate. That will be in one of our further studies.
At the moment, we are not making any comment on the government structure. We are saying that the government has chosen a particular vehicle for reporting, but that they have not reported. The emphasis is not on whether the vehicle is adequate. That will come later in the other study, where your comments are well founded.
Would it help if we make that statement somewhere, that we are not commenting in the editorial on whether the present machinery is adequate because it does not include the Aboriginals? We are simply saying that reports have not been filed. That is all we can say now, without further study.
Senator Taylor: Since 1996, the federal government has changed the derogation treaty rights in all the agreements, and each time they put on a little more. There seems to be a slow attrition by the white majority of the Aboriginal rights coming through.
I would feel better if you mention Aboriginals. We have some nerve straightening things out in Guatemala or Peru when we have issues screwed up at home.
The Chairman: Point well taken. The areas of study that we have enumerated in the report are not the only things that we can study. You have raised a valid point. Can give consideration to what part we could study to do with Aboriginals? You mentioned the recent derogation clauses.
Senator Taylor: Since 1996, the derogation clauses at one time were copied out of section 25, now they are different. I spoke with a lawyer who said they are different because there are more parliamentary rights.
Parliament is a great system, but it is not a good system for minorities. We are chipping away at the parliamentary rights that he spoke of. I am concerned.
The Chairman: That is something we need to study more. This committee does not have sufficient information to go further.
In another comment you said that the recommendations seem to be more international than national in focus. Recommendations 4, 5, 6, 7 and 8 are more internal than external.
As well, the government has just completed an extensive review by Mr. Justice La Forest on the Human Rights Commission and its machinery. We would have been treading ground that has already been covered by his report if we did a similar review. We do not wish to duplicate work that has been done extensively and exhaustively.
Senator Finestone: You might want to look at his recommendations.
The Chairman: Yes, we want to see if the government will act on them.
Senator Beaudoin: I agree with your suggestion that we see what is the truth. The fact is that the territories are there and they make reports does not change anything as far as the institution and constitutional law is concerned. That should be indicated.
The Chairman: We should indicate that in a footnote.
Senator Beaudoin: Aboriginal people have been the object of many decisions of the Supreme Court in the field of their rights. Their rights are collective whereas our rights are individual. That is a distinction that we should study.
Senator Finestone: I am tired of hearing that our rights are only individual rights. Collective rights are included under multicultural elements. There is a section on women.
Senator Beaudoin: Women have full equality.
Senator Taylor: It only affects the individual woman. You cannot file a suit for all women in general.
Senator Finestone: We had pay equity.
Senator Kinsella: Where are we in this meeting?
The Chairman: We are having a wonderful discussion. I need a little order here. I will remind committee members that we will try diligently to come to a conclusion about this report. We have a time limit we are fighting, both today and in January when Senator Finestone retires. I would like to have this done today. We have noted these comments, but substantially we are in agreement with the resolution.
We can move to the next recommendation. The committee recommends that the Government of Canada assign to the Canadian Human Rights Commission, along with sufficient resources, the task of conducting a human rights impact analysis of the new security and counter-terrorism measures.
Honourable senators, when the commissioner came before us she indicated that, in addition to complaints, her role includes education and analysis. With the recent cutbacks, there is little analysis or study of educational capacities. She pondered that her role is not one to review specific pieces of legislation, but to stand back as our society and needs change, as issues such as terrorism, drugs and migrant trafficking come forward, and analyze the impact of these things on human rights in Canada.
While she thought this function was a legitimate part of her role, it has not been highlighted in recent years and she does not have the resources, because so much of what she does is the complaint mechanism. We are recommending that we return to the traditional and original role of the Human Rights Commission, to have her look at the education and particularly to a human rights impact analysis of the present trends in our society that have been accelerated by the new security and counter-terrorism measures.
Senator Finestone: That is a very good mandate, not only with what has gone on with Bill C-36, but also with the whole question of drugs. There are all issues that you mentioned. We need to check our legislative mandate and ensure that the bills or laws we put in place have a degree of proportionality. Therefore, I suggest that we add a sentence to read something like, "to verify that the proportionality objective has been achieved."
There has to be some indication that government has responsibility financially and directionally. A balance must be found in our society between what seems to be right and what may be seen as pinching your toe for someone else. I know that has been the big discussion, as we have done with Bill C-36 and the whole question on terrorism.
How do you define a terrorist? According to the United Nations, each nation is to define a terrorist. They did not define terrorism or a terrorist in the legislation in the United Nations, which we are in the process of including and incorporating into our own law. It was an amusing undertaking. Sir Jacob - I forget his last name right at the moment - gave a very interesting answer when he defend the United Nations legislation that does not say what a terrorist is. It is how you see it from your own legislative and historical perspective. That is where they say "proportionality."
The Chairman: Are you suggesting something like, "with due regard to the issue of proportionality between human rights?"
Senator Finestone: As long as the word "proportionality" is in there because you do attenuate rights in this terrorism bill. The population is quite comfortable with what we are doing in that regard, except in certain instances. The question is that if she gets her money and her mandate and gets her professionals to do it, they need a yardstick of measure. What is it? It would be different in different cases. Should 10 people be allowed to grow marijuana for their own relief because they are desperately ill, or should everyone be allowed to have marijuana? Those are ethical and moral questions, but they have a value to them. There is a proportion or proportionality, I think is the terminology. You can word it any way you want.
Senator Wilson: When these recommendations go forward, will you also send the preceding paragraph? It has to be there. It has proportionality. I am looking on page 43.
The Chairman: I understand it is there. What we are really saying is that in the universal declaration there is a right to security, a right to life, a right to freedom, a right to due process, a right not to be arbitrarily arrested, et cetera. The problem is how to balance them. I hear Senator Finestone wanting it in the recommendation.
Senator Wilson: Are you going to send the preceding paragraph, or will we only send this three-line recommendation?
The Chairman: We will send the report.
Senator Finestone: It has to be there to hit them between the eyes. Maybe they will go back and look at what we were talking about.
Senator Wilson: You might do it in black in terms of the preceding paragraph because it does pick it up. That is true of all these things. If we are going to rewrite them all, it is already in the preamble for each of the recommendations.
The Chairman: May I negotiate between Senator Wilson and Senator Finestone?
Senator Wilson: I have no objection, but I point it out as a general approach. We seem to be adding things that are already in the preamble.
The Chairman: If we deal with this recommendation as Senator Wilson is indicating, when we address it to the Government of Canada, is Senator Finestone suggesting that we specifically highlight her point, which is in the preceding paragraph?
Senator Finestone: Yes.
The Chairman: Thank you. It has been noted in the evidence.
Senator Finestone: The point is, Madam Chair, that we get document after document and what do we all do? We look to see who was on the committee and then we look at the recommendations. We do not read the whole document. That is why it was important to have that word in there.
Senator Joyal: We could add the following words at the end of the sentence of recommendation 3: "and assist Parliament in the review mechanism provided, in particular in Bill C-36."
As you know Madam Chair, I raised the issue last week at the special committee, as I raised it here when we had the Commissioner of Human Rights before us. It is important to rely on an independent source of analysis and an evaluation that Parliament will have to sort through when it conducts its review of the bill in the three-year period provided for in the bill.
One of the major criticisms of the bill is that there is too much quantitative data and not enough qualitative data. If an officer of Parliament has the capacity to pronounce on the qualitative data, on the way that human rights are respected generally, it is the commissioner. This mechanism could be a way to single out the role of the commissioner.
The Chairman: I have resisted that because Bill C-36 is still before us. I am optimistic that third reading might produce more than we have before us. This recommendation was to look at a human rights impact analysis of all new security and counterterrorism measures, which are things like trafficking in migrants, child pornography and sex tourism. It was supposed to be more of a global exercise, not geared to one bill.
This is where we are today. What we want is the reinstatement of the capacity of the Human Rights Commission to do this in a more constructive, ongoing way.
I will put my cards on the table. I hope there will be changes to Bill C-36. If there were not, that would be a good time to come back to this committee to add that as a specific area of study. The Human Rights Commission could do a valuable thing for us, but we would have to document it appropriately, rather than trying to sweep another committee's work in here that other senators have not had the benefit of studying.
I am of two minds. One is to delay the whole report to determine that. I have a compelling reason for wanting to finish this, but it does not preclude what you are saying. It may even support it.
Senator Joyal: I want to be on the record on this matter because this is an ongoing discussion. My submission, which I will make it later on this week in another forum, is that in the evaluation of the principle of proportionality you have the limits that you bring to the rights, but you have the mechanism to monitor those limits. The bill has been analyzed on that basis. When you define proportionality, you always define one thing in comparison to another. You balance the two. How do you define proportionality? I think one essential element of defining proportionality is in the evaluation of the institutions that have been put into place to monitor the impact of those limits to the human rights that are contained in a specific legislation.
There will be another forum this week where I could make that intervention, but this is to be very important in the future role of the commission in relation to that. I can stand my suggestion, but I want to be on the record at this level.
The Chairman: Once you are on the record, I will pick that up with the clerk to ensure that we come back to it. It may warrant a separate study for that matter.
Senator Kinsella: Recommendation 3 is pushing at the outer boundary of the capacity of the Canadian Human Rights Commission and its mandate. We are stretching what they are capable of doing, and what they currently have a mandate to do.
I agree with Senator Joyal as far as Bill C-36 is concerned. We are going through a bad time in Canadian history. It is like the Second World War era when emotion and everything else pushed human rights to the background. Ask any Jehovah's Witness in Canada about that, and they will tell you how the popular opinion was to trample on them.
Government does not, in times of crisis, tend to be put up sufficient vehicles to protect civil liberties. That is partially because they do not have the pressure from public opinion to do that. Polls are telling them that this is what the people want. They want more powers, even if you have to limit civil liberties. This is the paradox that we are in.
Those of us who are concerned about the adequacy of our machinery are gravely concerned that the danger before us with the measures of Bill C-36 and other measures that are coming down the pipe. It is not only the issue of balance, which is certainly there, but also the danger of use. My own preference is the ombudsman model, as opposed to the Human Rights Commission model.
Although the phraseology presents a certain image, Human Rights Commissions are nothing more than anti-discrimination agencies. They flow from the Fair Employment and Housing Act. They are not about the human rights that you see in charters or in the international covenants. In recommendation 3, under the circumstances, we are probably pushing the frontier of the limits of their authority and mandate as it is.
If this committee wants to make a real contribution during the next few months, we will have to, outside the context of measures that are before Parliament, see whether we can come up with an overall model for protection along the lines of what Senator Joyal is saying.
Senator Wilson: We had a lengthy discussion on this very point with the Canadian Human Rights Commission. They want to move beyond anti-discrimination, because that is how they are perceived. They have no resources to do the framework that would be useful. That needs to be looked at.
In terms of Senator Joyal's intervention, this deals with the new security and counter-terrorism measures, not with the task of conducting it for all things. This is a very specific thing. That is why I wonder if this could go in? It deals with new security and counter-terrorism measures, the one main of being Bill C-36. It is specific.
The Chairman: This may be a drafting difficulty. Over the last number of years there have been new moves. After the fall of the Cold War, we redefined security for military security to a much broader definition of security. Subsequent to that, in the last number of years, both the United Nations and Canada have started to define "security" more broadly. We used the term "human security," and we have looked at environmental security, security issues around children, security issues of migrants, et cetera. It was not intended to be the new security and counter-terrorism measures, but I can see why we are looking at it because we are preoccupied with the bill.
Senator Wilson: Perhaps we could change the language.
The Chairman: Yes, we should. In a conference we said, "the terror against migrants." The commissioner said, if I recall her testimony, that a host of pieces of legislation dealing with security issues seem to have had an impact on some of our other areas of human rights. She notably mentioned the Immigration Act. It was to do a human rights impact analysis on new security and counter-terrorism measures. We need to clarify that it is not only a narrowing, but also it is important to look at all of the issues and the trends.
What has been said is extremely important. Bill C-36, the new anti-terrorism bill, is an important piece of proposed legislation. Certainly, in my eight and a half years in the Senate, it is the most significant piece of legislation that has faced us. Therefore, once that has been completed in the house, the suggested measures of Senator Kinsella and Senator Joyal could be very valid. They could be the study that will pre-empt all the other studies. It needs to be dealt with that way.
With the consensus of the committee, it is to ensure that there is no misunderstanding. It is an analysis of the entire host of new security and counter-terrorism measures that go beyond Bill C-36.
Senator Finestone: I do not want to belabour this, but I suggest, because of the observation made by Senator Kinsella, that we have recommended a Parliamentary ombudsman. These records will help us look to the future, and so we ought to read the act for the Canadian Human Rights Commissioner and ensure that this mandate fits her well. If not, we ought to go back to Bill C-36 and read our argument over the setting up of an ombudsman.
For example, we reacted in a dramatic way during the Second World War. We pre-empted rights and obligations that we had as Canadians towards our Japanese citizens, towards our Ukrainian community, towards the Chinese, towards the Italians and the Germans. We gave them characteristics that were not fair and not honourable. The Canadian Human Rights Commissioner cannot do that.
If we had a parliamentary ombudsman, perhaps that is where you could go. It may be worthwhile to keep that thought in mind, let this stand around Bill C-36 and not as broad as we just talked about. I feel strongly about the marijuana issue and the child labour. Let one stand clearly with my initial introduction of proportionality, and then we will see where the land goes.
The Chairman: In good parliamentary practice, Bill C-36 is at the reporting stage. It will go to the chamber and for us to make comment before the process is completed in our report would not be correct. Once the process is finished, members who are interested in the committee having a role may pursue that. Let us not pre-empt what we should study. Perhaps it should be to study all ways and means that there could be an impact analysis or proportionality, through this committee, through an ombudsman or through the Human Rights Commission.
Let us not narrow ourselves. We will see what happens with Bill C-36 because I still want to persuade some of my colleagues on that bill.
I hope that the parliamentary process will remain in intact. I hope that senators will still listen to my speeches, as I will listen to theirs, and who knows what amendments will come forward. In good parliamentary practice we cannot note. Bill C-36 is fait accompli. We have noted our concern that there should be some monitoring once we see the lay of the land.
I encourage members to reflect on what we should study vis-à-vis that. I have noted what Senator Joyal has suggested and it is worthy of our attention. All bets are off once we finish this report because then the next phase starts. In the report, we have identified areas that need attention, and there may be others. We have every right to frame our terms of reference for the next study in any way we wish.
Now we will move to recommendation 4, which I hope will not cause any difficulty. It reads:
The Committee recommends that the Government of Canada draft and table in Parliament amendments to the Canadian Human Rights Act which would add "social condition" as a prohibited ground of discrimination.
It says the committee recommends, not urges, because the Senate passed a bill on social condition. There was already a signal from the Senate to the government that we wish an act. This is recommending to the government that it act upon what the Senate has already recommended.
Recommendation 5 reads as follows:
The Committee recommends that the Government of Canada address, in the context of its response to the Canadian Human Rights Act Review Panel's 2000 report, the following issues:
a) Adding express references to key international human rights instruments to the Canadian Human Rights Act.
The commissioner and others have pointed out that there is no reference within the Canadian Human Rights Act to international human rights instruments and they feel that is a handicap in fulfilling what would be a proper human rights mandate.
Recommendation 5 continues as follows:
b) The need to ensure a greater dedication of resources to the Canadian Human Rights Commission's mandates with respect to human rights promotion and education as well as legislation and policy review.
The Committee further recommends that the Government of Canada, possibly through the Law Commission of Canada working in consultation with the Canadian Association of Statutory Human Rights Agencies, CASHRA, take steps to develop a model human rights code for consideration by all Canadian jurisdictions.
I do not think there is any dispute on that one. There was quite a discussion on the first part of recommendation 5(b).
Recommendation 6 reads as follows:
The Committee recommends that the Government of Canada ensure that the international human rights instruments to which Canada is a party, as well as information on any complaint mechanisms, be consolidated and made easily accessible to Canadians via the Internet, and that Canadians be made aware of how to access this information.
I think we are all in agreement with this. I had the opportunity to meet with the committee of human rights and public affairs in Latvia that is occupied with doing this. They indicated that throughout Europe there is quite an understanding that the way that citizens will understand and be informed of their rights is via the Internet. We need to catch up to other countries in this.
Recommendation 7 reads as follows:
The Committee recommends that the Government of Canada initiate consultations with appropriate representatives of the provincial and territorial governments with a view to better utilizing and supporting the work of CASHRA.
I hope all members agree that the work of CASHRA in having the human rights commissions come together is a very valuable resource in Canada. Since there has not been enough attention to their very valuable work, nor financial support for it, we wanted to highlight that immediately as something that could be easily dealt with by all provincial and territorial governments as well as the federal government.
Finally, recommendation 8 reads as follows:
The Committee recommends that the Government of Canada take the necessary steps to reinstate the practice of regular federal, provincial, and territorial meetings on human rights at the minimum material level. These meetings should be held on at least a triennial basis.
Senator Finestone would want us to have a much different process, and that is in the study. However, department officials told us that they are the ones responsible for looking at international treaties and drafting the reports. They said that for 12 or 13 years the ministers have not met. Obviously, the ministers have been talking to their respective bureaucrats, but the requirement that ministers speak to ministers is very important. For the sake of those working in this area, and for the public, we need to re-engage our political officials. This is only the start of the long road.
Those are the recommendations. Are there any specific additions or deletions that any senator wishes to make?
Senator Joyal: On recommendation 4, since we are talking about amendments to the act and since we have raised the issue of the La Forest report, would it be appropriate to add at the end, "and respond in this session to the La Forest report on the need to amend the act?"
Senator Taylor: That is good.
Senator Joyal: The La Forest report was referred to on many occasions during our sessions. We know that that report contains a comprehensive set of recommendations to revamp the act.
The Chairman: Recommendation 4 deals with social condition and the paragraphs leading up to that deal only with social condition. Perhaps the fifth recommendation would deal with the La Forest report.
Senator Joyal: If you want to add it there, I have no problem with that. It is important. That is a comprehensive report done by a retired justice of the Supreme Court that makes very important conclusions on changes to be made to the act. We heard the commissioner say that she does not know what work is being done. It is important for us to ask for the government to come forward with a response to the La Forest report. Although we have not studied each recommendation of the La Forest report, it is an important document that this committee should study and debate.
The Chairman: It is more logical to include it in recommendation 5 because number 4 deals only with social condition. The other deals with a number of reviews. It could logically fall in there, if there is agreement to do so.
Hon. Senators: Agreed.
The Chairman: Are there any other suggested changes?
I know that Senator Finestone has brought some editorial changes. They have to do with the tone of the language.I intend to meet with her on those when she is available. She currently has greater affairs of state to attend to.
Meeting with Kofi Annan and with Colin Powel is very important, so we do not want to detract from that.
Senator Finestone and I and Mr. Goetz can meet and make the editorial changes, at midnight or whenever you wish. I am available, and I assure you that they were available almost on a 24-hour basis in drafting this document.
I propose, with your consent honourable senators, that we adopt the report with the changes discussed, and to authorize the chair and deputy chair to jointly make minor corrections to the text that do not affect the substance of the report.
Hon. Senators: Agreed.
Senator Beaudoin: That is with regard to everything except substance.
The Chairman: That is right, major substance.
Senator Beaudoin: I just want to be sure.
The Chairman: Absolutely. We will incorporate the substantive things you have said today. We will make minor editorial changes. With that, we would hope that we could go to printing of the report.
We will pick up the substantive issues and the proportionality issue. We will make the editorial changes. We have been conscious to ensure, because it was worked in English first, that the French translation has had the benefit of Senator Beaudoin, my research staff, and a professional French editor to ensure that the French version is correct.
In our haste, there may be few grammatical niceties in the English text as well as in the French text, but we are sacrificing a certain finesse in authorship to get the report out. We are more concerned with the substance than the style this time around.
I want to go on record now, as we hold all our meetings in public, to thank Senator Finestone. This committee has been a long time in the making. Many people have asked for a human rights committee to do the kind of work we are starting to do. This committee would not have gotten off the ground without the persistence of Senator Finestone. She has honed her skills in both the House of Commons and the Senate to such a degree that she knows which levers to push and she knows when to be insistent. She knows when not take "no" for an answer. She very much put her stamp on the human rights committee. All senators should be extremely grateful for that.
Senator Finestone has always injected the parliamentary aspect of responsibility for human rights. She has done it in IPU, PJA, in this committee and in many other ways. I think that is a unique contribution. Many of us are concerned about human rights and we have different perspectives, but Senator Finestone has persistently brought forward the human rights issue from a parliamentary perspective. That is worth noting and I hope we do not lose it.
Senator Finestone, I thank you for getting us off to a good start. I know that even when that retirement day comes, you will continue to follow our work and give us your good advice. I hope we do not let down your trust in us. I wish you well in your new endeavours in the cause of human rights.
Senator Finestone: Thank you very much.
The Chairman: Honourables senators, we will now move to the second part of our meeting today and that is to hear from two witnesses. I would invite them now to come forward.
We are returning to our order of reference, to continue examination of the issues relating to human rights and, inter alia to review the machinery of government dealing with Canada's international and national human rights obligations.
Present before us today is Ms Donna Scott, Chief Commissioner and Director of the Saskatchewan Human Rights Commission, and Ms Janet Baldwin, Chairperson of the Manitoba Human Rights Commission.
Ms Donna Scott, Chief Commissioner and Director, Saskatchewan Human Rights Commission: I am particularly pleased to be able to mark December 10, International Human Rights Day, in this way. We are very proud of the contribution of this committee, with Senator Andreychuck as chair, given that she is from Saskatchewan and we consider her one of our own.
The Province of Saskatchewan has a rich tradition of advancing the cause of social justice and human rights. In 1947, the year before the Universal Declaration of Human Rights was proclaimed by the United Nations, Saskatchewan passed the first general human rights act in North America, the Saskatchewan Bill of Rights Act. It established a number of fundamental rights and freedoms for every individual, and that Bill of Rights is still incorporated in the Saskatchewan Human Rights Code.
Since that time, Saskatchewan has continued to develop rights-based legislation and established the Human Rights Commission in 1972.
The Saskatchewan Human Rights Code protects certain rights and freedoms and, like other human rights legislation of its kind, prohibits discriminatory practices in a number of areas of public life on the basis of a number of enumerated grounds. Our commission protects and promotes human rights in a number of ways through complaint resolution, through the approval of special programs, through public education and through the granting of exemptions.
With regard to complaint resolution, we are currently embarking on an exciting and historic time in the evolution of the Saskatchewan commission. In November, amendments to the code were proclaimed that markedly changed the way we will handle human rights complaints. The amendments repeal a number of rigid requirements and streamline the process, creating the flexibility for the commission to tailor procedures to different types of complaints and adopt procedures as appropriate.
These changes were necessary to address the increasing complexity of human rights complaints. When our code was first enacted more than 20 years ago, the intent was to create a system that could effectively redress acts of intentional and direct discrimination. More and more we are dealing with systemic complaints or those involving more complex concepts such as the duty to accommodate. We needed to bring our system in line with today's realities, and I believe we have done that.
The amendments also create an independent human rights tribunal panel for the first time in Saskatchewan and allow complainants direct access to the tribunal panel in certain circumstances. This is one unique feature of our legislation that I do not believe happens in many other provinces in Canada. With this new flexibility, the commission hopes to place greater emphasis on mediation and other complaint-resolution techniques.
Another way the commission promotes human rights is through the approval of special programs, and it has been able to do this since the code was enacted in 1979. Historically, the commission has approved equity initiatives in the areas of employment and education. We believe Saskatchewan is unique in this respect.
I have described these two systems in our written report. However, it is important to note a few points. With respect to employment equity, for example, there is no mandatory employment equity legislation in Saskatchewan; however, the commission has been approving and monitoring voluntary employment equity programs since 1980. The commission currently monitors 35 employers with over 42,000 employees. The commission's Employment Equity Program focuses on four designated groups. Women, Aboriginal people, visible minorities and people with disabilities are groups that traditionally have not had access to jobs and promotions.
The second area that the commission approves programs is education equity, a program that I believe is unique to Saskatchewan. The commission launched education equity for Aboriginal students in the kindergarten to Grade 12 system in 1985 in response to research indicating that as many as 90 per cent of Aboriginal students left school before completing Grade 12. It was evident that Aboriginal children were not receiving the same benefits from the education system as their non-Aboriginal classmates.
The commission asked school boards at that time with significant numbers of Aboriginal students to develop education equity programs under section 47 of our code. Programs focussed on the following five areas: curriculum, school policies and practices, parental involvement, cross-cultural training for teachers, and efforts to increase the number of Aboriginal teachers. These plans have evolved, and many now include the development of anti-racism or anti-discrimination policies, training for all staff and procedures to deal with discriminatory incidents.
The commission currently monitors 17 approved plans in the indicated 12 school divisions, including approximately 76,000 students, 21 per cent of which are of Aboriginal ancestry. The commission also approves and monitors education equity plans at the post-secondary level. Although most post-secondary education equity plans refer to Aboriginal students only, some programs have a broader mandate. For example, certain programs target female students in the area of mathematics, and one college has as plan for all four designated groups.
The commission is currently working with education partners, including our provincial department of education, school trustees, administrators, teachers and colleges of education at the universities to expand education equity to create a more inclusive education system, one that provides equality of opportunity for all students. This includes students living in poverty, gay and lesbian students, and students with disabilities.
Another way the commission promotes human rights is through public education programs. One of the challenges for many human rights commissions, including the Saskatchewan commission, is to be able to balance resources between complaint resolution, public human rights education and other programs. While human rights education is seen as a proactive and preventive way of protecting human rights, the immediate necessity to address human rights complaints without delay requires most of our resources. It is hoped that through our new complaint system, the commission may be able to strike a better balance in resourcing the programs and the services it provides.
One effective strategy for conducting public human rights education is to develop education partnerships, and I have identified in my report a number of ways we have done that. I will highlight our human rights in the workplace initiative, which is very successful. These seminars are targeted to employers, business people, employees and unions and they address a number of human rights issues related to the workplace. We have received a very positive response from the business community.
One of most challenging human rights issues in our province is the treatment of our Aboriginal peoples. We are trying to do more to reach out to the Aboriginal community in our province. Pervasive and widespread racism continues against Aboriginal people in our province. Recent unfortunate and very public events involving the police service and the Aboriginal community in Saskatoon illustrate the deep divisions between some of our most respected institutions and the Aboriginal community.
Aboriginal people in northern Saskatchewan also face particular issues respecting their rights. Approximately 81 per cent of the residents of northern Saskatchewan are of Aboriginal ancestry. We have begun to reach out to the members of the Aboriginal community in number of ways.
I have had the opportunity to travel with the provincial ombudsman and the children's advocate throughout northern Saskatchewan, visiting a number of northern communities and meeting with residents. Northern residents raised concerns related to their economic and social human rights. The lack of adequate, affordable housing, poor access to health care services and insufficient education resources for special needs children living in northern communities were some of the concerns raised. The commission is currently planning a long-term strategy to better serve residents in the north.
Another way we have reached out to the Aboriginal community is through the use of talking circles based upon an Aboriginal spiritual process for healing to provide a more culturally relevant process for resolving human rights complaints.
We are currently working with the Canadian Human Rights Commission, our public legal education association of Saskatchewan and the Aboriginal friendship centres of Saskatchewan to develop a rights-based publication for Aboriginal people living in urban centres.
One area of concern is the number of youth suffering from fetal alcohol syndrome and fetal alcohol affect finding themselves in the criminal justice system, with a lack of an appropriate response by the justice system to their disability. We have been asked by one provincial court judge to become involved in this issue.
Given the demographics of our province, we need to continue to develop a strategy to deal with racism and the discrimination experienced by Aboriginal peoples in our province.
Another challenge for the Saskatchewan commission and other commissions is the inability to adequately address the issue of poverty. Poverty is increasingly being recognized as a human rights issue, and there is growing support for human rights protection for the poor. One way to better protect against discrimination of the poor would be through the inclusion of social condition as a protected ground in human rights legislation.
This notion has received support from the UN committee, as well as from the Senate through Bill S-11 and from CASHRA, and other provinces have put forward those resolutions.
The Saskatchewan code protects individuals from discrimination on the ground of receipt of public assistance. Public assistance refers to assistance defined in provincial welfare legislation. While this may be seen as a step in the right direction, the commission considers this ground to be too narrow to address discrimination experienced by the working poor or individuals in receipt of public assistance other than social assistance. The commission will continue to work with CASHRA to press for a legislative change in this regard. However, there needs to be a greater awareness of this form of discrimination before the inclusion of social condition will occur.
I will now like to turn to the relationship between international human rights law and provincial law and practice in Saskatchewan. The Saskatchewan code authorizes the commission to promote recognition of the inherent dignity and equal inalienable rights of all members of the human family. As such, the commission can and does promote international human rights through public education initiatives, and I have outlined a few examples in our paper.
However, it is more difficult to enforce those international rights if they are not specifically provided for in the code. While not specifically enforceable, international instruments have served as an essential interpretive tool in Saskatchewan. An example is cited in our paper of the 1985 decision of our Saskatchewan Court of Appeal in Huck v. Canadian Odeon Theatres. In that decision, the Court of Appeal agreed that the social goals the legislature deemed worthy of achieving through its human rights legislation are inextricably bound up with Saskatchewan's participation in the promotion of human rights on an international level and basically supported the use of international instruments in presenting cases of a human rights nature.
I would like to touch on the issue of Canada's reporting to the UN committees regarding its obligations under the international treaties.
The Saskatchewan commission is routinely asked to provide feedback to the drafter of the Saskatchewan report that forms part of Canada's report. While we are grateful for that opportunity, we think that there is a better way for commissions to provide input to the UN committees. That may be through an organization such as CASHRA.
As you know, the UN committees receive reports from governments. I believe that the reports in Canada are coordinated through the CCOHR. UN committees have also increasingly welcomed input from societies and NGOs.
However, there is a missing piece, and that is the Canadian Human Rights Commission. The commissions are on the front line dealing with human rights every day. There needs to be a vehicle for conveying the commission's views on whether Canada, and by implications provinces, are meeting obligations under international instruments.
The Saskatchewan commission has also had the privilege to participate in some international human rights activities. We participated most recently activities related to the UN world conference against racism. I was fortunate to attend the preparatory meetings in Geneva in May of this year representing CASHRA and sponsored by Canadian Heritage. As well, one of our commissioners was able to attend the world conference in during Durban.
There are several ways that the federal government and parliamentarians might support human rights commission work. First, many commissions are wrestling with the difficult issues facing Canada's Aboriginal peoples. I would suggest that improving the condition of Aboriginal people generally, perhaps through the implementation of the recommendations made by the Royal Commission on Aboriginal Peoples, would assist commissions in their work.
Second, the federal government could demonstrate leadership to its provincial counterparts by including social condition as a protected ground in the Canadian Human Rights Act.
Third, the federal government could continue the dialogue on the subject of racism begun in preparation for the UN World Conference Against Racism. Human rights commissions, NGOs and government participated together to try to find solutions to the racism that plagues our world. That dialogue needs to continue so we can use the Durban conference as a springboard for developing a domestic action plan to fight racism here in Canada. We urge the federal government to follow up on the discussion that took place earlier this year in Durban.
Fourth, Parliament and appropriate federal government departments could recognize and support CASHRA as a national unified voice on human rights matters. This support could include facilitating a role for CASHRA in the reporting process to the UN committees.
Another way federal parliament could support human rights commissions is by promoting a standard for independence from government for Canada's human rights commissions. The Paris Principles establish that one fundamental feature of a national human rights institution is its independence from government.
Most Canadian human rights commissions report to government through a line department. For example, the Saskatchewan commission reports through the Minister of Justice. While we generally derive support from our ministry and have not experienced interference from government during my tenure, I believe it would be more appropriate for human rights commissions to report directly to the legislative assembly such as the provincial ombudsman or the auditor.
Finally, national and provincial strategic planning on human rights issues and an ongoing dialogue respecting Canada's international obligations needs to occur at the ministerial level. It is our understanding that ministers responsible for human rights have not met since 1988. The Saskatchewan commission put forward a resolution to the CASHRA business meeting in 1999 in Montreal, which was unanimously passed, requesting ministers responsible for human rights to meet regularly and asking that CASHRA representatives have an opportunity to meet with ministers at such meetings. I would encourage the federal government to organize regular meetings of federal, provincial and territorial ministers responsible for human rights.
It is clear that many vulnerable people in our province continue to be exposed to exclusion and discrimination. The commission cannot fight discrimination in isolation. It is the challenge for all members of our community and government to work together to create a more just and inclusive society, one free from prejudice that offers equality of benefit to all people.
Ms Janet Baldwin, Chairperson, Manitoba Human Rights Commission: Unlike my colleague from Saskatchewan and most of the chief commissioners you have heard from, I am very much a part-time chief commissioner.
The Manitoba commission administers the Manitoba Human Rights Code, which is expressly based on the Universal Declaration of Human Rights as well as the Charter recommendation that you have made in regard to the Canadian Human Rights Act. As many of the witnesses have discussed with you, there is, unfortunately, a plethora of human rights regimes in Canada.
I am happy to say that Manitoba has one of the wider ranging human rights statutes, which includes sexual orientation, source of income, political relieve and age as a provision for enumerated grounds, and a specific provision for failure to make reasonable accommodation as discrimination. All human rights activists are becoming increasing aware of the inter-sectionality of the multiple grounds of discrimination.
As well as the things we can do, like all provincial commissions, there are things we cannot do because of the federal nature of the system. We are limited to provincial matters. As are most provincial human rights commissions, we are limited to specific areas of employment, housing, services and contracts available to the public.
A matter that specificly concerns us in regard to jurisdiction is the very ambiguous jurisdiction over Aboriginal people. We perceive that Aboriginal people often fall into gaps between the provincial human rights, the federal human rights commission and the jurisdiction of the Indian Act. That may be an area where Parliament could make some clarification.
We talk about the exponentially greater effects that smaller commissions can have on the human rights law and principles of Canada. We mention many of the leading cases, including those on pregnancy and sexual harassment that originated with complaints from our commission.
Our commission has been particularly active in trying to promote the rights of same sex partners. We are disappointed that Manitoba has not gone as far as some others in amending their legislation to comply with the decision in M. v. H. I would like to seize this opportunity to encourage Parliament to amend the Marriage Act to allow for the marriage of same sex partners.
Our mandate, like that of all provincial human rights commissions is threefold. Our primary resources have to be directed toward complaint resolution, but we have equally important mandates in the areas of education and the promotion of human rights.
In regard to our complaint resolution we point in our paper particularly to the various options that we have tried to develop for a speedier and more effective complaint resolution, particularly conciliation and mediation. We have developed a very effective pre-complaint conciliation program so that one in five of our cases is resolved within 30 days. We offer mediation at every stage of the complaint process.
In terms of our complaint resolution, we also do try our best to recognize international as well as national human rights obligations. I referred in my paper to several cases.
Before our board of commissioners we have the case of an HIV child that the school board is refusing to allow into the regular school system. In our thinking about the case we are relying heavily on the International Convention on the Rights of the Child. We had a recent adjudication that brought up the Convention on the Elimination of Discrimination Against Women, or CEDAW, and we had have, as have other provinces, Attorney General interventions in many high profile cases such as Keegstra, Zundel and John Ross Taylor, which have also involved international conventions. Recently, we, as a member of CASHRA have intervened in the Gosselin case in regard to social condition in the Supreme Court of Canada. That case involves many arguments centering on the International Covenant on Economic, Social and Cultural Human Rights.
In regard to education, outreach and partnerships with other organizations, I again focus on three areas. I focus on our employment seminars, directed primarily to employers with the thesis of human rights being good business practice and run on a cost recovery basis. I talk about some of the initiatives we have made to improve our outreach to Aboriginal people, particularly in northern remote areas of Manitoba. We have an Aboriginal officer who travels around constantly to the remote areas and receives complaints and also runs educational programs. We also have satellite officers in Le Pas and in Brandon.
Our most recent educational focus is on the schools. Last week, we had a major youth conference for high school students, particularly Aboriginal students and students from the North. We video taped part of that conference and we will be putting it on our Web site in an interactive format, which seems to be the way that kids get involved these days. We hope they will get involved with human rights in that way. We do many presentations in schools and are moving toward a more sustainable model of trying to train trainers in both national and international human rights within the school system.
Another aspect of our mandate is the proactive promotion of human rights to governments, particularly our own, and to panels in the media. I give some examples in my paper. In particular, in the immediate aftermath of the tragedy of September 11, we issued a press release and participated in many media activities. We are continually trying to monitor issues of backlash in the aftermath of September 11. We have recommended to our own government that all legislation, but particularly security legislation, be subject not only to a Charter analysis but also to a human rights impact analysis. We have proffered our services, limited though our resources are, to our government to work with them on that sort of analysis.
In working with the media, we are limited in that we must always be perceived as an impartial commission. That is another place where CASHRA, as a national organization, can have a role in expressing the moral voice of human rights commissions across Canada. CASHRA issued a press release soon after the events of September 11.
I have three challenges to talk about. The first is our legislation. We are very aware of the need to include social condition within our legislation. We have source of income, but it does not enable us to deal comprehensively with all of the issues of poverty and homelessness. We have already had submitted a legislative proposal to our government based on the CASHRA paper and the International Covenant for Economic, Social and Cultural Human Rights. We have great hope that ours may be one of the few provincial governments that will introduce this amendment.
Another problem with our legislation, a problem that has been raised in this committee, is the paramountcy issue. Our code is stated to be paramount to other provincial legislation. However, this is not as obvious as it seems. There are some aspects of legislation and of judicial conduct that we cannot touch despite that paramountcy provision.
I mention the issue of independence. We are better than some of the human rights commissions in terms of independence, at least theoretically. For example, we have appointments for commission for three-year terms. They are staggered appointments and they cannot dismiss us until they are expired, except for cause, which I hope not to give them. On the other hand, we do have independence issues. Unlike the Canadian commission, but like most provincial commissions, we report through a minister. It would enhance our independence to report directly to the legislature, as the ombudsman does.
We also have a problem with independent counsel. Our counsel at the moment is an employee of the Minister of Justice, which is good because he is excellent. It also saves us money, but it is increasingly problematic as there are a number of cases involving the government appearing before us as a commission.
Cutbacks these days have a greater impact on smaller commissions such as ours. There are all kinds of things that we cannot do because of the limited and decreasing budget. We cannot deal properly with systemic issues. We cannot do proper research and public consultations with an aim to developing policies that would be proactive and preventive in terms of the anti-discrimination and the human rights field.
I would like to stress the role of all of the commissions and of CASHRA in regard to Canada's international obligations. As Ms Scott has said, we would like to see CASHRA as an impartial organization. Not like the continuing committee, a governmental organization; nor like the NGOs, a completely nongovernmental organization, but an impartial body whose experience and expertise could be extremely useful in reviewing legislation and assisting with the reporting obligations under our international instruments. The problem, as you have recognized already in your draft report, is that CASHRA does not have any resources to be doing this. A couple of weeks ago, one of your witnesses suggested a partnership of CASHRA with a centre of excellence at a university. That seemed to be an exceptionally good idea. We at CASHRA have tried to pursue that a couple of times. One time was with a centre of excellence in human rights research and education at the University of Ottawa, and another time was with the University of Alberta. We have been prevented on both occasions simply by lack of resources, but not by lack of will.
The Chairman: Thank you for your presentation. In both Saskatchewan and Manitoba you report to the legislature?
Ms Baldwin: No, we report to the minister. As far as I am aware, the only territorial human rights commission that reports directly is the Northwest Territories. All of the others report to a minister.
Senator Finestone: Both of you have submitted very interesting reports. There were some common issues. Let me understand the relationship. Outside the Northwest Territories, the chair is appointed by Governor in Council, by the Prime Minister or the premier of the province. You report to your minister, not to the house. Is your report public?
Ms Baldwin: In Manitoba, our report is public. It is tabled in the house, but not necessarily discussed in the house. We do a lot of press work around our annual report.
Senator Finestone: A report tabled in the house is a public report and subject to comment by the members of the legislature; is that correct?
Ms Baldwin: It is.
Senator Finestone: Does it go to committee?
Ms Baldwin: No.
Ms Scott: Saskatchewan has a similar situation. We report to the legislative assembly through the minister. Our annual report is tabled in the legislative assembly in the sense that every MLA receives a copy of our report, but it is never discussed in committee or on the floor of the house.
Senator Finestone: What relationship do you have or did you have or do you hope to have with the coordinating committee that drafts the international responses?
Ms Scott: A number of years ago, the Saskatchewan commission was the official representative on the continuing committee. That changed prior to my tenure as chief commissioner. A senior official of the Department of Justice is the representative on the continuing committee.
I have always been welcome to attend those meetings as an observer. On Thursday, I will attend as the official representative of our provincial government at the continuing committee meeting here in Ottawa. Typically, that is not the situation.
Senator Finestone: Will you still be wearing your commissioner's hat?
Ms Scott: It will be awkward, because of our independence. I will there as the chief commissioner of the human rights commission standing in for the official who typically appears. I will be able to make my representations on that basis.
Senator Finestone: What is the relationship of the Minister of Intergovernmental Affairs, Mr. Stéphane Dion, to the continuing committee or to your human rights commission?
Ms Scott: He certainly has no relationship to our human rights commission. We do have a provincial Minister of Intergovernmental Affairs, but we have few dealings with that minister. I do not know what relationship Minister Dion has with the continuing committee.
Senator Finestone: How can we put together the time and experience of our commissioners across Canada to make a useful impact on the promotion of human rights? How can we ensure that we have an adequate response mechanism in each province with the diverse regional perspectives and personalities? Do we get that best through the continuing committee of bureaucrats, or do we get it best from the nominated Governor in Council appointments that are sitting in the commission seats? Do we need a combination and an effective interaction between all levels? I want to know where Minister Dion fits into that portrait?
Ms Baldwin: It would be Canadian Heritage.
Senator Finestone: Maybe that is not where it belongs. In intergovernmental affairs, we must look at everything that makes the tasks of daily living tasks palatable and tolerable and respectful of diversity. Diversity, you are telling me, falls under Canadian Heritage. I guess that is not so terrible.
The Chairman: You are asking them whether that would be proper? No one else has brought that up before.
Senator Finestone: I know that.
The Chairman: I hope you do not think we are going to amend the report again.
Senator Finestone: No.
The Chairman: You are saying the minister and his responsibilities should be taken into account in this structure. Narrowing it to the heritage minister is perhaps no longer the way things should be?
Senator Finestone: I would like to continue in that sense.
I do not care which minister runs this as long as it runs. The system has been broken for 13 years on the minister's side. Your commission has been ineffectively attributed to the NGO class on the other side, particularly when you went to Durban. What do we need to do to fix that?
You have both given wonderful reports and I notice that they match well. How do you think this might be fixed, particularly from the perspective of your experience?
Ms Scott: That is a complex question. We are struggling with that at CASHRA. What is our relationship with the continuing committee? How do we have an ongoing relationship? The continuing committee has a vested interest in their work. They are government bureaucrats and they are presenting reports to the UN committee.
We are coming at these issues with a more independent approach. Our perspective is different. Although we are independent from government activities, communication is needed between CASHRA and the continuing committee. I am not certain that the continuing committee would agree. They have had a working committee in place for the last year developing a position with respect to ongoing participation by human rights commissions on the continuing committee.
There needs to be ongoing dialogue, but commissions and CASHRA in particular need to maintain our separate status from the continuing committee.
Senator Finestone: Ms Baldwin, the Manitoba code does not limit human rights protection on the basis of age. I find that very interesting as I move into my retirement years. Perhaps if I move to Manitoba I can retain my seat. I would like to know what the implications are.
Senator Joyal: You need the test of section 1 of the charter.
Senator Finestone: I will come back to my question later.
Ms Baldwin: Regarding mandatory retirement, our code is similar to several of the provincial human rights codes that allow the legislature to opt out. They recently enacted legislation that allows universities in Manitoba to negotiate mandatory retirement by explicitly saying that that statute overrode the human rights code. Although mandatory retirement is against our human rights code, it can be overridden if explicitly done by the legislature.
Senator Finestone: Do they insist on a five-year moratorium and then return to it under section 33?
Ms Baldwin: Yes, more or less.
Senator Beaudoin: Ms Baldwin, you used the term "paramountcy." That is the term often used in many fields. What is it exactly? What are the limits? Paramountcy can be many things. What did you have in mind?
Ms Baldwin: Yes, it is a very complex question as I discovered when I first came to the Human Rights Commission. I assume that because our legislation states that we have paramountcy over other provincial legislation that it means what it says, but I quickly discovered that that was not so.
The legislature can provide in a statute-explicit provision such as a notwithstanding clause to opt out of the human rights code. For political reasons, it would rarely do that, but it did in the example of universities negotiating mandatory retirement.
Additionally, government has always resisted any of our attempts to take cases that deal with a provincial statute. We have taken the position that where there is executive action under a statute, then we have jurisdiction, as long as it is within our fields. Where it is simply an issue of the statute, even though it may be patently discriminatory on its face, we do not have jurisdiction, nor do we have jurisdiction over judges, as we have recently seen with the recent case before the Canadian Human Rights Commission.
One example that we had recently at the commission was a claim under the old Family Maintenance Act, before it was amended to comply with the M. v. H. in Ontario, 1998, which was discriminatory as between married partners and common-law heterosexual partners. It is patently discriminatory, yet we were told we did not have jurisdiction because it is an act rather than an executive action. Therefore, paramountcy is not all it seems, and our legislation needs to be clarified and strengthened in that respect.
Senator Beaudoin: To have paramountcy, we need a statute that is considered as paramountcy by the court. It may be stated clearly in the act that it is paramount and nothing short of a notwithstanding clause may set it aside.
In the field of human rights, we have the Canadian Charter of Rights and Freedoms. It is easy to declare that paramount because it is the Constitution of Canada, with which you must comply. However, in some provincial human rights acts, it is perhaps quasi-constitutional, or it may be paramount. In your Province of Manitoba, I suppose it is a kind of quasi-constitutional act that has precedence over any other field of legislation in the province.
Ms Baldwin: That was the idea and that is indicated in section 58 of our code, labelled "Paramountcy of code." This section reads as follows:
Unless expressly provided otherwise herein or in another Act of the Legislature, the substantive rights and obligations in this Code are paramount over the substantive rights and obligations in every other Act of Legislature, whether enacted before or after this Code.
Even though the wording seems to be clear, the application has been much limited by our court of appeal in Manitoba.
Senator Beaudoin: Is there an appeal to the Supreme Court of Canada?
Ms Baldwin: There is. Although the particular case I have in mind, which was a claim under the Fatal Accidents Act, did not go to the Supreme Court of Canada. It was a statutory provision that was patently discriminatory, but it was held that we did not have jurisdiction for two reasons. First, because there was no executive action, the Fatal Accidents Act provided the cause of action. Second, we did not have jurisdiction because housing services and contracts are not within our areas of employment. There were those two reasons for excluding us, and that is why it was not appealed to the Supreme Court of Canada. Paramountcy is not as paramount as it would seem to be.
Senator Beaudoin: You have to settle that problem because it is fundamental.
Ms Baldwin: Exactly.
Senator Beaudoin: It is or is not paramount?
Ms Baldwin: It is not at the moment.
Senator Beaudoin: What do we do, in practice?
Ms Baldwin: In practice, we will probably have to have a legislative clarification. That could be in the form of an amendment.
Senator Beaudoin: That is the least that can be done. That is the first time I have heard that. When we lose a case in the court of appeal, we go to the Supreme Court. It is constitutional law.
The Chairman: That is always the dilemma. If you have time and money, you can go.
Senator Beaudoin: The Constitution is paramount. I suggest that you go to the appeal court one day.
Ms Baldwin: There were other issues in that case.
Senator Beaudoin: There was not just the amendment?
Ms Baldwin: The issue of it not falling within our jurisdictional areas might have made it problematic to proceed further. Amendments would be better.
Senator Wilson: I am delighted that you make use of the international covenants in your context and in your deliberations. You mention the need for a greater public education before social conditions can ever be really instated in our legislation. Have you made any use of the concluding observations of the UN Human Rights Committee, both in Economic, Social and Cultural Covenant, and Civil and Political Rights, that have many things to say about Aboriginal people and poor people? Do you find that a useful educative instrument?
Ms Scott: They are useful for the commissioner and the staff of the Human Rights Commission. However, we wish they would be more useful to legislators. As we have worked on pressing for legislative change to include social conditions, many people do not understand what that protected ground means. I have received some feedback from legislators wondering what it means, how it is defined, what it would mean for a province like Saskatchewan where we have a rural industry that is struggling, whether it is a proactive protection or one that simply deals with discrimination on that basis.
There is a great deal of misunderstanding about what the protection for social conditions means. Until we clear up the misunderstanding and have a greater awareness overall in respect of what that protection addresses, we will not have protection in our codes.
Senator Wilson: Your officers look after public education.
Ms Scott: Yes, they do.
Senator Wilson: Are they not able to reach legislators and the public on this issue? If they do not, it is a great resource loss.
Ms Scott: It is a challenge for us because we do not always have the resources to devote to public education. We try to promote those rights and to create an increased awareness of them, but there is more to be done in that area.
Senator Wilson: I have spent more years in Manitoba than anywhere else. I do not know if you are aware that there is a Senate committee on Aboriginal people dealing with the situation of urban native people. You mentioned that much of your work is done with respect to the North. However, my memories of Winnipeg and my current visits there tell me that native people run up and down the main street meeting each other. What is your emphasis for urban First Nations young people? What complaints do you hear and what are the main issues?
Ms Baldwin: That is an exceptionally good question. It is true that our first initiative was an Aboriginal officer in the North. That program has been successful, so we have just hired another Aboriginal officer to do the same kind of outreach in Winnipeg and surrounding urban areas, but not with the same kind of travel. The youth conference that we held a week ago was primarily aimed at Aboriginal students from all over the province, including schools in Winnipeg, particularly schools with a large number of Aboriginal students. Many of our educational efforts are directed there at the moment. The vice-chair of my commission is himself Aboriginal and extremely committed to our being proactive on these issues.
My impression is that incidents of racism against Aboriginal people do come to the commission, although there is also the question of intersection. Many of these complaints would fit well under the issue of social condition.
Senator Wilson: They would also fit under the issue housing.
Ms Baldwin: Yes, they could also fit under employment services and a whole range of issues.
Senator Taylor: You said that you do not report to the legislature, yet you filed your report with the legislature. Do you sign the report, or does the minister you report to sign it?
Ms Baldwin: We give it to the minister and he signs it.
Senator Taylor: Does he have the power to hold it back if he wishes?
Ms Baldwin: Yes.
Senator Taylor: Does the same situation apply in Saskatchewan?
Ms Scott: It is different in Saskatchewan. We provide our report to the minister. We sign it and send it to the minister, but we table it with the Speaker's office. It is a new process.
Senator Taylor: You are reporting to the legislature. If the report gets into the Speaker's office, it should get out.
I am pleased to see you working in the Aboriginal community. I am fairly new on this committee. I was complaining about how we were fixing things around the world, but not close to home. I think we will get into that area further and your submission certainly has helped in that regard.
Although there are individual problems with respect to Aboriginals, it is primarily a group problem. In the past, group problems regarding discrimination have often been solved by quotas, such as a hiring quota. For instance, I remember years ago I operated a construction company in Italy. One out of every twelve people I hired had to be physically handicapped. There was also the issue of women's rights, which was worked out the same way in that a certain percentage of the workers must be female. How would quotas work in knitting Aboriginal people into society in Manitoba and Saskatchewan?
I believe that Manitoba and Saskatchewan are two of the most progressive provinces where human rights are concerned, yet they are the most backward provinces when it comes to Aboriginals in jail and Aboriginals looking for jobs. You seem to be going in opposite directions here and I am wondering what is happening. Have you thought about quotas?
Ms Scott: For a number of years in Saskatchewan we have approved and monitored employment equity plans for employers on a voluntary basis. A large number of our employers, including our provincial government and departments within government and Crown corporations, have voluntarily come to the commission and asked to participate in employment equity. Aboriginal people comprise one of four designated groups that are part of that employment equity plan. If we want a representative workforce in Saskatchewan, then a workplace would ideally have at least 12 to 13 per cent of its workforce of Aboriginal ancestry.
We are not there yet. We have made progress, but there is a long way to go with regard to the overall number of Aboriginal people within the workforces of equity sponsors. We are making progress and the commission has been committed to this initiative for a number of years.
I am not speaking on behalf of our Department of Intergovernmental and Aboriginal Affairs, but it has initiated an Aboriginal employment development plan that works closely with large employers in our province to bring more Aboriginal people into the workplace. We recognize that the areas of education and employment are key to providing a future for our Aboriginal people.
Senator Taylor: Do you believe in a quota?
Ms Scott: Employers who decide to implement an employment equity plan do establish goals to achieve over a number of years. One of those goals would be to have a certain number of Aboriginal people within their workforce. We do not like to use the word "quota," but we are talking about targets or goals, which is a similar concept.
Ms Baldwin: We have provisions, not quite as extensive as those in Saskatchewan, that allow for special programs for any group that has been historically disadvantaged. An employer can set up a special program or an affirmative action program of whatever type they see fit.
In the past all special programs came before the Human Rights Commission to be vetted. That does not happen now. Employers are allowed and encouraged to set up those programs, and they only come to us by default if there is a complaint by someone else against those programs. This has been more effective than having to go through a bureaucratic process before one can even set up the program in the first place. We work with employers and encourage them to develop those kinds of programs.
I would like to make another comment related to the last two questions about Aboriginal human rights. A great concern of our commission, and particularly of my vice-chair, is the situation of Aboriginal human rights on reserves, where we do not often have jurisdiction. We are trying to work with Aboriginal leaders on the reserves to protect human rights and to develop culturally sensitive human rights systems.
The Chairman: Very progressive action is being taken in Saskatchewan and Manitoba. Perhaps the results are not seen as yet. However, one must remember that our population in Saskatchewan has not dramatically changed upwards or downwards. Saskatchewan's population has been around the 1 million mark for a long time and the Aboriginal population is a growing factor within that number. Their numbers are increasing and perhaps that is why we are in the spotlight more often than other provinces. It would be unfair to say that there was something going on in Manitoba and Saskatchewan that has caused this divergence. I would strongly expect it is elsewhere, such as in British Columbia, Ontario and Nova Scotia. It is not as visible in those provinces because the percentage of Aboriginals is not as great.
Senator Poy: In your report, Ms Scott, you talk about the persistent racism in your province. We have heard quite a few times about natives being abandoned in the cold by the police. As a commissioner, to what extent can you get involved in cases like that?
Ms Scott: It is tricky. We can deal with complaints from the victims in those situations. We can generally speak publicly about issues with respect to the Aboriginal community. As a result of those incidents, we became involved with a number of other groups in our city to conduct a healing circle on March 21 to try to get at some of those issues in a way that might increase awareness, as well as to deal with some of the divisions between the police, other institutions and the Aboriginal community. That was very successful.
It is difficult. You must be careful. If you speak out publicly on one side or the other and then one of the people comes forward to ask us to investigate a complaint, we can hardly be seen as impartial in that situation.
We want to advocate, but we have to be conscious of our situation as an impartial investigator of complaints.
Senator Poy: Do you have a healing circle on March 21 of every year?
Ms Scott: Every year we do a number of events within the communities. Due to the recent events in Saskatoon, we worked with a number of other agencies to develop a healing circle on March 21.
Senator Poy: Are they supported by the police?
Ms Scott: The police were in attendance at that circle.
Senator Poy: Ms Baldwin, you talked about supporting same-sex marriage. Is that your personal stand or one of the Manitoba commission?
Ms Baldwin: Both.
Senator Poy: Is it an official stand?
Ms Baldwin: We have taken an official stand. We have made a presentation to the review panel on a variety of rights, including the right to marriage by same-sex partners. We wrote to the minister after the recent decision in B.C. rejecting the idea of same-sex marriage. We have written to our minister stating that he has to do the right thing and intervene in that case, at least at the Supreme Court level. If he does not, we shall.
Senator Poy: Have there been any same sex-marriages in Manitoba?
Ms Baldwin: At the moment, that is not possible. There is also a very complex jurisdictional question of marriage made even more complex since the B.C. case. The provinces always get out of the issue by saying it is federal jurisdiction. The recent B.C. case maintained it is not federal jurisdiction, but a constitutional issue. Somewhere someone must come to grips with it.
I was happy to see last Friday that Quebec introduced, in part, the concept of civil union. We have also recommended that to our provincial government as being something within the provincial jurisdiction. While it is not totally satisfactory, it would go a considerable way toward equality for same-sex partners.
Senator Poy: Is civil union different from same-sex marriage?
Ms Baldwin: It depends on how you define it. In Vermont, civil union is almost exactly the same as marriage. I have not seen the bill in Quebec, but from what I understand from the media, it does not make it exactly equivalent to marriage. However, it is certainly better than the nothing that exists in Manitoba at the moment.
Senator Joyal: You do not have the capacity to pronounce on the proposed legislation of your respective governments, if you conclude that that legislation is contrary to the provisions of your provincial human rights acts; is that correct?
Ms Baldwin: We can make representations to our provincial government, and we do. We would like to do much more, if they gave us the opportunity. All we can do is make recommendations. As always, we are constrained by resources. Our legislative review committee has barely enough time to deal with our own legislation and policies. We would very much like to take on the role of reviewing legislation.
Senator Joyal: Ms Baldwin, can you be called on by a committee studying a particular piece of legislation as an expert witness to express your views as to whether the bill conforms to your provincial human rights legislation?
Ms Baldwin: We can. We feel that we are not call upon as much as we should be. We are rather foisting ourselves upon them.
We made representations to the committee regarding Bill C-36, which had ramifications on provincial statutes that had to be amended.
Ms Scott: In Saskatchewan, we are able to comment as to whether legislation violates our human rights code. In addition, the commission has the ability to initiate complaints on its own behalf without having to have an individual complainant come before it. Under our code, if the government were to implement legislation that violated our human rights code, we have the authority to initiate complaints against the government. That does not happen often. When there is legislation that is passed that clearly violates the code in Saskatchewan we are able to challenge that legislation and have it struck down if it is in violation of the code.
Returning to the question about paramountcy; if legislation specifically says that it is paramount to the human rights code, then we do not have the ability to challenge or question that legislation. However, unless it expressly states that, we can and have challenged and struck down legislation if it has violated the human rights code.
Although we are not often asked, we are from time to time consulted about new legislation, as we were with the same-sex definition of spouse. However, with regard to bills that are neutral on their face but may have a discriminatory impact, we would not be consulted. We would only deal with them later as the result of a complaint.
Senator Joyal: The report out of Quebec last Friday on the recent human rights proposal does not provide the same rights in reference to adoption and the responsibility of children as the full recognition of marriage equality would provide.
Did any of your commissions lead a study to define the particular situation that applies to Aboriginal people, for instance the comparison of on-reserve status with provincial statutes versus the Canadian Charter of Rights? That was one of the major discussions we had. We entrenched the Canadian Charter of Rights and Freedoms with its application to the Aboriginal people and in relation to section 35. The Supreme Court has tempered the rights of the Aboriginal people, and recognized additional rights to Aboriginal people in terms of their status that are different in some instances from the rights recognized of non-Aboriginal Canadians. The issue of women's Aboriginal rights has been a major issue over the years and is still an issue on the reserves.
Saskatchewan and Manitoba have a large segment of Aboriginal population. Have either of your governments done studies on the difference of implementation, provincially and federally, within the Charter of Rights and the Canadian Human Rights Act in relation to the Aboriginal people in your provinces?
Ms Scott: Saskatchewan has not undertaken any research or study of that type. We have dealt with the issue of whether we have jurisdiction on reserves in particular situations through a complaint that is currently wending its way through the courts. It has been to the Court of Appeal and the Court of Appeal has upheld our ability and jurisdiction to undertake a complaint. We have taken jurisdiction in the situation and proceeded with the complaint. Tribunals at the Court of Queen's Bench and the Court of Appeal level have supported us. We are now waiting to see whether the Supreme Court will grant leave to hear this case. We have taken jurisdiction in certain situations and that is being sorted out through the courts at present. It would be worthwhile undertaking to do some work in that area with research and study to try to determine this issue, because it is very unclear at this time.
Senator Joyal: The Quebec Charter of Human Rights recognizes social condition. That has already been the object of interpretation by the court. There are enough parameters to the definition of what is the scope of social condition as a ground for non-discrimination to allow us to move forward in terms of recognizing that element. With the discussion in Canada about child poverty and poverty levels generally, this ground of non-discrimination becomes certainly an emerging right that commends itself to be one of the first to which provincial authorities should address themselves.
Ms Scott: I agree completely. We have used the interpretation in Quebec in support of our own position with our legislature for inclusion of social condition, in terms of interpreting what it means.
I agree that there is a concern about child poverty and about poverty generally. Sometimes there is a problem with the connection between that and human rights. Some people do not see that as a human rights issue. That is where we need to work in terms of educating and informing people. The work that has been done in Quebec has been very helpful and is informative to us.
Senator Joyal: My last question was in reference to the administration of justice in reference to the police authority in the Human Rights Act, but I will address the issue another day.
Senator Cochrane: It has been about a year since the new parental leave has been in effect, extending the leave to one year. Have you seen any change in the frequency of these complaints since then?
Ms Scott: We have not really seen any change. What surprises us is that we still receive complaints from women who become pregnant and who are terminated from their positions altogether. Long after the principle was established that pregnant women can retain their jobs and be accommodated, we still receive a large number of complaints in that area. With respect to the extension of maternity leave, we have not seen that have an impact on the number of complaints that we receive.
Ms Baldwin: We have not seen it have any direct impact, although we have had many complaints recently that will go to a tribunal about part-time workers and their eligibility for particularly for maternity and parental leave benefits which are very often denied under collective agreements. That is a current issue for us.
The Chairman: Thank you both for your work in human rights and for coming to testify before us. There are many areas that we need to explore and no doubt we will call on your expertise. Thank you for being here on the significant day of December 10.
The committee adjourned.