It should be noted that there is a solid democratic rationale for the different effects of treaties in dualist versus monist states.  In monist states, the national legislature must approve treaties as part of the state’s ratification process, whereas in dualist states such as Canada, ratification is entirely the prerogative of the executive or Crown.  Although the dualist model may seem less progressive from the point of view of efficient domestic incorporation of international law norms, its intent is to safeguard the democratic legislative process by ensuring that the laws and rights of the people are not altered without the consent of their elected and appointed representatives.

 

        ii) Canada’s Approach to Legislative Implementation   

Although legislative incorporation is necessary to fully implement treaty rights and obligations, the vast majority of Canada’s international human rights treaty obligations have not been the subject of implementing legislation.  This means that Canadians cannot, through their courts, compel government respect for their international human rights as such.  This appears to be contrary to the spirit if not the actual terms of the international human rights instruments themselves.  

For instance, Article 2(3) of the International Covenant on Civil and Political Rights requires states: 

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy…;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial … or other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.  (Italics added) 

The requirement clearly expressed in this provision for states to ensure that their people have a mandatory right to effective and enforceable remedies – preferably through a judicial determination – for violations of the rights set out in the Covenant strongly suggests that effective incorporation of the rights of the Covenant into domestic law is intended.  Any doubt on the matter should be eliminated by Article 2(2) of the Covenant, which provides: 

Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant. 

Canada frequently points to the Charter of Rights and the various federal and provincial human rights statutes as fulfilling its obligations for domestic implementation of the Covenant and of other international human rights instruments.  However, these do not fully discharge Canada’s international obligations in the area of human rights.  Though similar, and in some respects superior, to the rights recognized in the international treaties to which Canada is a party, the Charter of Rights and its other domestic human rights legislation do not cover all its international human rights obligations.  This has been noted by the United Nations Human Rights Committee itself, which is charged with monitoring state compliance with the International Covenant on Civil and Political Rights: 

The Committee is concerned that gaps remain between the protection of rights under the Canadian Charter and other federal and provincial laws and the protection required under the Covenant, and recommends measures to ensure full implementation of Covenant rights.  In this regard the Committee recommends that consideration be given to the establishment of a public body responsible for overseeing implementation of the Covenant and for reporting on any deficiencies.[11]     

Of course, it is true that while unincorporated treaties do not necessarily alter Canadian domestic law, they can and do influence its interpretation.  A common law doctrine, which applies in Canada, holds that in interpreting legislation, courts should presume that Parliament intended to legislate in a manner consistent with its international treaty obligations.  Inferred implementation enjoys a tenuous existence in respect of the status of ratified international treaties within domestic law.  Professor Toope stated before the Committee:  “Whether that kind of inferred transformation is real transformation is a difficult question, and one that is giving rise to interpretative problems in our courts.”[12]  Nevertheless, it is clear that the courts can make use of international human rights law in interpretation.  As former Chief Justice Dickson of the Supreme Court of Canada observed, given that international human rights instruments were part of the context in which the Charter was drafted and adopted, these instruments should be viewed as providing “a relevant and persuasive source” for Charter interpretation and, furthermore, that “the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents.”[13]  

Moreover, there have been some indications of an inclination by the courts to use international human rights law in the interpretation of domestic law.  In the 1999 Supreme Court of Canada decision in Baker v. Canada (Minister of Citizenship and Immigration),[14] the majority of the Court ruled that, notwithstanding that Canada had not incorporated the United Nations Convention on the Rights of the Child into its domestic law, the Convention’s principle of making the “best interests of the child” a primary consideration in decision-making concerning children should inform the Department’s exercise of its “humanitarian and compassionate” discretion in deportation cases.[15] 

While we, along with a number of the witnesses who appeared before us, applaud the increased effect that the courts seem to be giving to international human rights law through their decisions, we believe strongly that Canada cannot rely on the judiciary to solve its problem of inadequate implementation of its treaty obligations.  Inadequate implementation of international human rights commitments is not fundamentally a legal or constitutional problem.  Rather it is one of political will.  

The disjuncture between Canada’s international human rights commitments and its domestic law cannot be allowed to go unaddressed.  Nor is it either fair or proper to sit back and hope that the courts will rescue Canada from the inconsistencies of its approach to implementing international human rights.  A new approach must be found.  Otherwise, the continued failure of governments in Canada to systematically address the domestic legal implications of international human rights treaties it has voluntarily ratified could leave this country open to charges of hypocrisy and has the potential to diminish Canada’s moral authority as a leading voice for human rights in the international arena.[16]   

iii) International Human Rights Implementation and Canadian Federalism

Since adherence to international human rights standards relates primarily to the conduct of states’ internal rather than external affairs, federal states such as Canada must take account of the constitutional limits on the jurisdiction of the national government to implement such commitments.  Under Canada’s Constitution, human rights cut across the jurisdictions of different levels of government. 

The national governments of some federal states, such as the United States and Australia, have the constitutional authority to legislate to implement treaty obligations, even when the subject matter of the legislation would otherwise fall within the jurisdiction of their state governments.  In Canada, however, the federal government does not have such a power.[17]  

The federal Governor in Council (in effect, the federal cabinet) does have the legal authority to unilaterally bind Canada internationally by signing and ratifying international agreements.  But the federal government cannot unilaterally implement these obligations if provincial laws and policies are affected.[18]     

Under international law, however, the lack of legislative jurisdiction and other obstacles flowing from a state’s domestic law (including its constitution) cannot be used as a valid excuse for failing to implement an international treaty obligation.[19]  

Therefore, in order to avoid the problem of being internationally accountable for obligations that it cannot fulfil, the federal government has adopted the practice of consulting with the provinces and territories, and obtaining their consent, before signing and ratifying treaties relating in whole or in part to matters within their jurisdiction.  

In the case of human rights treaties, this practice was formalized in an agreement reached at a 1975 meeting of federal and provincial ministers responsible for human rights.  The two levels of government also agreed on provincial involvement in the preparation of periodic reports and in responding to observations from treaty bodies on the provincial components of such reports, as well as in responding to complaints relating to provincial laws and programs.  To provide an ongoing forum for communication and consultation between the various governments on Canada’s international human rights obligations, the ministers at the 1975 conference also set up the Continuing Committee of Officials on Human Rights comprised of civil servants representing relevant federal departments as well as each of the provincial and territorial governments.[20] 

However, the process established under the 1975 federal-provincial agreement has a number of significant limitations.  The Continuing Committee of Officials meets behind closed doors and does not have any policy or decision-making authority.  The responsible ministers have not met in some thirteen years.  None of the governments is held accountable for its human rights performance, and there is no public scrutiny or input.  As the situation with regard to the recent Waldman decision against Canada by the United Nations Human Rights Committee has demonstrated, there is certainly no mechanism for pressuring either level of government to live up to its commitments.[21]  While non-governmental organizations have, in recent years, been consulted during the preparation of Canada’s reports to the treaty bodies, this is not a transparent process to which the general public has access.  The Continuing Committee offers no opportunity for any public debate or follow-up to the observations, findings, and recommendations of the treaty bodies – nor was such a role ever intended for it.

The real issue and problem is not, however, that the Continuing Committee of Officials on Human Rights is not providing a public forum for domestic accountability and scrutiny of Canada’s implementation of its international human rights commitments.  This is not its job.  The real problem for Canada is that no other official body or institution of government is performing this function either.    

II)        THE NEED FOR A PARLIAMENTARY HUMAN RIGHTS COMMITTEE  

There appears to be a significant democratic deficit with respect to human rights in Canada, particularly in the area of the acceptance and implementation of Canada’s international human rights commitments.  Parliament has to a great extent been cut out of the loop.  Yet, ironically, Parliament is the very institution that could play a key role in addressing many of the failings of the current process, and in opening up this area of Canada’s machinery of government to greater public scrutiny and awareness.  

Parliament is a unique forum for public debate and governmental accountability, in which the official representatives of the people of Canada are the main participants.  Parliamentarians come from all walks of life and backgrounds.  They are, as a body, generalists, although, individually, they may have specific expertise.  Collectively, they are dedicated to serving their communities and their nation, rather than any particular cause or issue.  These attributes make Parliament and parliamentarians uniquely well-suited to balancing different and sometimes competing public policy objectives.  

But assessing the proper role of Parliament goes beyond issues of institutional talents and abilities.  Our parliamentary system of government requires that Parliament debate and scrutinize government policy and balance competing policy objectives.  Unfortunately, this mandate is all too often not fully exercised. 

Obviously, neither this Committee nor Parliament as a whole can be solely responsible for Canada’s human rights law and policy.  Other entities clearly have a role to play and responsibilities to fulfil.  We are not interested in taking over the responsibilities of existing bodies or institutions.  We are, however, concerned that Parliament assume its proper role in dealing with human rights in this country.  

The executive government, and more specifically the key federal departments of Justice and Foreign Affairs, must continue to play a leading role in developing Canadian law and policy in the area of human rights.  They have the responsibility, the resources, and the organization to perform this role.  However, the executive cannot do it alone.  This is not an issue of competence or political commitment with respect to human rights.  Rather, this is a basic question of achieving an appropriate institutional balance and division of labour in a representative parliamentary democracy. 

The courts also have a role to play in the interpretation and elaboration of human rights in Canada, particularly in applying the Canadian Charter of Rights and Freedoms.  Recently, in cases such as the Baker decision of the Supreme Court of Canada, the courts have demonstrated an increased willingness to construe Canada’s domestic laws in light of its international human rights obligations.  We were told that this judicial trend is likely to continue.[22]  This is a useful development in our view. 

But this positive approach taken by the courts cannot, indeed must not, relieve Parliament of the need to insert itself more fully into the discussion of human rights in Canada.  Indeed the fact that the courts may be turning more to unimplemented human rights treaties (i.e., treaties in whose adoption Parliament has had no role under our current process) for guidance in interpreting Canadian law should serve to underscore the need for a greater parliamentary role in this area. 

As important as it is to have judicial safeguards, it is always preferable for human rights issues to be taken into account at the “front end,” as legislation and policy are being developed.  It is better for public law and policy to respect human rights at the outset and not only after a rights holder is put to the trouble of litigation or, worse still, forgoes asserting his or her right, either for the sake of convenience or due to ignorance about the rights that he or she has.  

Moreover, for a number of international human rights – particularly those in the area of economic, social, and cultural rights – there is a significant political content which parliamentarians are better suited than judges to weigh and apply.[23] 

Finally, civil society groups have been playing an enormously positive role in lobbying governments and critiquing their laws and policies, as well as drawing attention to human rights problems both domestically and internationally.  As we heard during this study, non-governmental organizations working in the human rights field frequently play an invaluable role in providing human rights treaty bodies, to which national governments report, with alternative information and perspectives on the state of affairs in that country.  We have been told that the relevant federal departments are increasingly seeking the input of civil society groups in the course of developing their policy positions and preparing for appearances at international fora.  We believe that these are all positive things.  Indeed, we look forward to providing civil society groups with an additional forum for their activities.  But these groups are not themselves a substitute for Parliament’s involvement.  

Civil society groups lack Parliament’s constitutional mandate to represent the people in general.  They also lack Parliament’s responsibility, which comes with its legislative function, for making hard choices in balancing different public policy objectives.  By contrast, Parliament must constantly attempt to reconcile different political and social objectives and concerns in light of a broad, over-arching conception of the public interest.  

This being said, precisely because Parliament as a whole is a generalist body and must address a variety of policy imperatives, it is vital that any enhanced role for Parliament in human rights be structured so as to ensure that human rights do not get lost in the shuffle, but are instead the subject of focussed attention.  This is why this Committee was created and why other countries have also embraced the notion of a parliamentary committee devoted to human rights.  The first report delivered at the 1993 Inter-Parliamentary Union symposium on the role of parliaments in the area of human rights observed: “Parliaments should have a specific mechanism where the promotion of human rights, including the rights of minorities, would be centralized.”[24]  A number of other countries, including Australia and, more recently, the United Kingdom, have already established parliamentary committees at the national level that are exclusively devoted to human rights issues.  

The creation of a parliamentary committee for human rights also has the potential to give a greater sense of urgency to human rights issues and gives visible encouragement to those within and outside government who are working to give human rights a greater priority in the public policy agenda. 

Moreover, it is particularly appropriate that this parliamentary human rights committee be a Senate committee.  The Senate also a body that, as a number of witnesses reminded us, has more of a mandate for regional and minority representation than the House of Commons.  The Senate also has a greater continuity in membership and, as an appointed body, is more insulated from pressures from the executive government, the media, and short-term public opinion.  All these factors make the Senate an institution that is especially conducive to the consideration of human rights issues. 

During the course of our initial study, we were gratified to note the interest, indeed excitement, that the establishment of this Committee has generated.  The witnesses were virtually unanimous in their assessments that something on the parliamentary side of the equation has been lacking in Canada on this issue.  

As the remaining sections of this Report illustrate, the witnesses who appeared before us had no shortage of suggestions regarding recommendations, areas for future study, and suggestions as to the ongoing roles that this Committee could undertake.  Some of the suggested roles for this Committee include: 

·                    reviewing and scrutinizing Canada’s reports to treaty bodies, as well as those bodies’ observations and decisions on complaints concerning Canada;

·                    providing a public vehicle for parliamentary and civil society input into Canadian foreign policy positions regarding human rights, particularly in respect of the treaty bodies and the United Nations Human Rights Commission;

·                    looking into the issue of human rights treaties that Canada has not yet acted upon and trying to clarify the concerns and obstacles and, where appropriate, help to move the process forward;

·                    scrutinizing bills for compliance with domestic and international human rights; and

·                    providing a forum for the discussion of federal-provincial-territorial issues regarding the implementation of Canada’s international human rights commitments. 

 

All these potential functions are things that are currently not being done consistently, at least not in the context of a public parliamentary forum.  Even a few of these functions would keep the Committee very busy.  It would appear that we have tapped into a significant amount of pent-up demand for a greater parliamentary role in this important public policy area.  In any event, it seems clear that this Committee is in a unique position to make a significant contribution to Canada’s machinery of government with respect to human rights.

III)  ISSUES FOR FURTHER STUDY

We have heard from some of the best experts on human rights and the machinery of government.  A number of issues came up repeatedly in the evidence of these experts.  We have identified issues that we believe are worthy of further exploration by the Committee and we intend to go back to the Senate for authorization to study these areas further.

 

A. Issue for Further Study:  Canada and the Human Rights Treaty Bodies 

Under the terms of the six major global human rights instruments, Canada is required to submit period reports every few years assessing its performance and progress with respect to the rights set out in the conventions.  These reports are currently prepared entirely by officials from the relevant federal, provincial, and territorial government departments.  While, at the federal level at least, there have been some efforts to receive input from interested non-governmental organizations, these reports are not publicly reviewed or scrutinized prior to being sent to the international treaty body.  

A number of witnesses suggested that Canada’s reporting process vis-à-vis the international human rights treaty bodies should be made more transparent.  More particularly, it was indicated to us that a parliamentary committee such as this one would be a useful forum for parliamentary and public input, and education, with respect to Canada’s reports on its human rights performance.[25]  

Canada’s draft reports could be scrutinized by this Committee prior to their submission to the treaty bodies and the Committee could also consider the treaty bodies’ concluding observations on Canada’s reports as well as their decisions on any complaints against Canada, along with any governmental response or follow-up.  In the course of such reviews the Committee could hear from interested civil society groups and independent experts, as well as representatives from relevant federal, provincial, or territorial government departments.

 

            B. Issue for Further Study:  Parliament and the Treaty-Making Process 

From the early days of Canada’s independence on the world stage in the 1920s until approximately the late 1950s, debate and approval by Parliament of international treaties prior to Canada’s ratification was the norm.  However, since that time, Parliament’s role in the treaty-making process has declined substantially.  Not only has it been decades since a treaty was submitted to Parliament for pre-ratification approval, but even the simple practice of tabling treaties in Parliament after ratification has been discontinued in recent years.[26]  As Dean Peter Leuprecht observed to this Committee, it is striking that “there is a growing body of international law, but a diminishing involvement of Parliament in treaty-making.”[27]  

Moreover, in most other western democracies, national parliaments play a much more significant role in the approval or scrutiny of international agreements. The recent example of Australia’s Joint Committee on Treaties, established in 1996, was pointed to repeatedly in testimony to the Committee as a model worthy of study.  Under that system, while Parliament does not have to approve treaties, they do have to be submitted to a standing joint committee of the Australian Parliament for scrutiny prior to binding action being taken by the executive government.  The executive must also prepare and table a “National Interest Analysis” which sets out the various implications for the country of assuming the obligations in the treaty, including the need for legislative action. 

Many of the expert witnesses who came before us urged a greater role for Parliament in the scrutiny of Canada’s treaty commitments.[28]  

Such an enhanced role for Parliament in the treaty-making process would not be designed to take anything away from the power and prerogative of the executive with regard to signing and ratifying treaties.  Rather, it would be to ensure that there is a way for parliamentarians to input in a timely way their opinions about the substance of the treaty.  It would also be a way for parliamentarians to question, prior to ratification, the adequacy of the government’s plans with respect to legislative implementation. 

Such a process could be particularly useful in the case of international human rights instruments.  It could provide an opportunity and a forum for assessing the adequacy of the government’s plans for domestic legal implementation of such a treaty prior to Canadian ratification.  

Furthermore, the apparent movement on the part of the judiciary toward greater use of unimplemented treaties in the interpretation of legislation – exemplified in the Supreme Court’s recent decision in the Baker case – makes the argument for a resurgence of Parliament’s involvement with treaties all the more compelling.     

 

            C. Issue for Further Study:  Legislative Implementation of International Human Rights Instruments 

A number of witnesses told us frankly that the Government of Canada must do a better job of translating its international human rights commitments into domestic law.  The government has frequently not been sufficiently rigorous in ensuring that this sort of translation has occurred.  As a result, gaps have emerged, either in terms of the scope or substance of the protected rights, or in the remedies that are made available.  Canadians are thus being denied certain of their rights in some cases and Canada’s international human rights reputation risks being needlessly jeopardized.     

It may well be, as some have cautioned, that a policy of wholesale legislative incorporation of international human rights instruments would be problematic – contradictory international norms in some areas being one difficulty.[29]  Another impediment would be provincial jurisdiction.  Nonetheless, it seems clear that there is room to do more than we have been doing.  As one witness put it, Canada needs to find a better framework to bring its international obligations into its domestic law.[30]       

Even if greater use is made of the technique of legislative incorporation of human rights treaties, careful review of existing and subsequent legislation for compliance with treaty obligations would remain a critical task, and one in which Parliament can and should be involved. 

 

            D. Issue for Further Study:  Reviewing Proposed Legislation for Consistency with Human Rights 

When Canada proposes to ratify a treaty, be it one dealing with human rights or otherwise, a review of existing legislation is conducted to determine whether there are any inconsistencies between current Canadian law and the obligations under the treaty.  If inconsistencies are found, then the government must decide, if it still wishes to proceed with ratification, whether the inconsistent legislative provision should be amended, or whether a reservation or statement of understanding should be attached to Canada’s ratification.  After ratification, however, there is no ongoing review of new legislation for consistency with treaty commitments in Canada.  

While there are some reviews of proposed legislation in Canada to ensure consistency with human rights, the process is neither comprehensive nor systematic.  First of all, these reviews do not normally consider Canada’s international human rights obligations.[31]  In addition, aside from the review of regulations by the Standing Joint Committee for the Scrutiny of Regulations and the vetting of House of Commons Private Members’ Bills by its Committee on Procedure and House Affairs, there is no explicit involvement of Parliament in the review process.    

The Canadian Human Rights Commission does review certain proposed legislation as part of its statutory mandate.  Moreover, in these legislative reviews, we have been told that the Commission has recently begun incorporating international human rights law into its analyses.[32]  However, due to the priority that the Commission must give to handling complaints, the Commission must necessarily be somewhat selective in its interventions in this area.  In addition, the procedure currently followed is for the Commission to address any human rights concerns regarding legislation to the Minister of Justice.  If it is not satisfied with the Minister’s response, and if it feels strongly enough about the matter, the Commission will request to appear before the parliamentary committees studying the proposed legislation.  The Commission will also sometimes publicize its concerns through press releases and on its web-site.          

It may be that the Department of Justice, perhaps with the help of the Department of Foreign Affairs and International Trade, should extend its certification of the compliance of bills and proposed regulations with the Canadian Charter and the Bill of Rights to cover at least the major international human rights instruments that Canada has ratified.  

Parliament, possibly through this committee, should also be involved more formally in the systematic review of proposed legislation for consistency with domestic and international human rights instruments.  Other parliamentary democracies, such as Australia and the United Kingdom, have established specific parliamentary committees for this purpose.  A number of the witnesses who appeared before the Committee endorsed the idea of such a process for Canada.[33]  

In taking on this role, Parliament should establish a strong liaison with the Canadian Human Rights Commission, which, if given proper resources specifically for this aspect of its mandate, could be Parliament’s most valuable resource in reviewing legislation from the perspective of human rights.  This Committee should play a leading role in establishing and co-ordinating this relationship with the Commission. 

 

E. Issue for Further Study:  International Human Rights and Canadian Federalism 

While Canada, through the federal government, speaks with one voice internationally, under our Constitution it is exclusively for the provinces to implement any international treaty obligations that relate to their areas of jurisdiction.  Therefore, problems arise for the federal government when provincial laws or policies threaten to place Canada in a position of non-compliance with its treaty commitments.  Internationally, such internal jurisdictional divisions do not excuse a country from fulfilling its legal obligations.     

The recent decision of the United Nations Human Rights Committee on the Waldman complaint illustrates the problem.  Provincial laws and policies in Ontario that provide for the public funding of Roman Catholic schools, but not those of any other religious denomination, were successfully challenged under the International Covenant on Civil and Political Rights.  Canada, as the responsible State Party, was held by the treaty body to be in breach of the Covenant.  All the federal government could apparently do was urge provincial compliance.  Ontario has refused.  As was indicated to us, this type of situation is unacceptable and harmful to Canada’s international reputation on human rights. [34]  As Professor Bayefsky observed:  “[i]f the provinces are able to say that they have no obligation to adhere to those international obligations, and the federal government is able to say that it has no obligation to do more than encourage them, what does our ratification mean?”[35]  

There should be a way for constitutional impediments to the implementation of Canada’s international human rights obligations to be addressed in a transparent way. 

Noting the Senate’s special mandate to represent regional perspectives and interests, it was indicated to us that a Senate committee, such as this one, could be well-placed to make a valuable contribution in this area by providing a forum for discussing regional concerns arising out of Canada’s human rights commitments.[36]  This Committee should study the extent to which our particular form of federalism is a support or impediment to furthering international human rights treaty obligations.  Through this study, the Committee could also develop proposals and give advice on procedures to enhance compliance.

 

            F. Issue for Further Study:  Human Rights Treaties Not Yet Signed or Ratified by Canada  

We have already discussed the importance of enhancing Parliament’s role in considering proposed new treaty commitments by Canada, with particular emphasis on international human rights instruments.  As a number of witnesses indicated to us, parliamentary committees such as this one could also quite usefully play a corollary role with respect to international human rights instruments that Canada has not yet signed and/or ratified.  Professor William Schabas noted:  “Parliament need not wait passively or idly for the Department of Foreign Affairs or for other ministries to take the initiative in determining whether or not to ratify a treaty.  Parliament could actually help to push the agenda forward.”[37] 

The Committee could analyse the status of outstanding treaties to which Canada has not yet adhered.  It could encourage progress by helping to make the treaty more of a priority.  The Committee could also provide an official and public forum for the airing of concerns.  There needs to be a forum where the political costs and benefits of such agreements can be publicly debated. 

During the course of its study, the Committee received a UNESCO publication entitled Human Rights:  Major International Instruments, Status as at 31 May 2001, which indicates those instruments that Canada has not yet signed or ratified.  In addition, various witnesses brought the Committee’s attention to different treaties that Canada has not yet signed. 

In addition to the American Convention on Human Rights (discussed separately below), another international human rights instrument that Canada has not signed is the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women.  Canada is a party to the main Convention, but has not yet signed the Optional Protocol, which would enable the treaty body monitoring the Convention to receive and decide upon complaints against Canada.  The Committee was urged to help make signature and ratification of the Optional Protocol more of a priority.[38]  

It was also pointed out to the Committee that Canada has not subscribed to another international human rights complaints mechanism, this one concerning the Convention on the Elimination of All Forms of Racial Discrimination, which Canada ratified in 1970.[39]

 

            G. Issue for Further Study:  Canadian Accession to the American Convention on Human Rights  

The American Convention on Human Rights provides an important illustration of an international human rights instrument that is unsigned by Canada and where the Committee could play a useful role in facilitating an open public dialogue on the issues surrounding Canada’s possible accession to that Convention. 

This Convention is the Organization of American States’ principal human rights instrument.  Canada has now been a member of the OAS for a decade, but has not signed the Convention.  Witnesses before this Committee urged that we encourage the government to move forward and ratify this important treaty.  A major reason to do so, it was argued, is not that it provides unique human rights guarantees, but that ratification would allow Canada to participate more fully in the OAS human rights system.[40]  

However, concerns have been expressed in Canada about Article 4 of that Convention.  It has been suggested that a very simple and carefully tailored reservation or statement of understanding would meet the relevant objections.[41]  However, there is apparent reluctance on the part of some to be seen to contribute to the proliferation of reservations to human rights treaties.  In any event, the matter has not moved forward and official concerns and deliberations are not being publicly aired or discussed, nor has there been any responsible inquiry or oversight by parliamentarians. 

These and other issues need to be explored publicly in order to engage the public, to hear the views of relevant groups, and to facilitate decisions at the political level.

 

H. Issue for Further Study:  The Right of Privacy  

One area of human rights that has been under growing pressure in recent years with the ever-increasing reliance on information technology has been the right to privacy.  Now, with the new global emphasis on security and counter-terrorism, the right of privacy will be under almost unprecedented challenge.   

This is all the more a concern here in Canada, where, in the opinion of some, the right of privacy is already somewhat under-protected in our domestic human rights laws.  The right of privacy as such is not enshrined in the Canadian Charter of Rights and Freedoms and, as we heard from various witnesses, privacy does not generally fall under the jurisdiction of our human rights commissions.[42]  While there are statutory regimes dealing with the protection of privacy, they are usually limited to the protection of personal information supplied to governments.  As Professor Schabas noted, the right to privacy is an area where Canada’s domestic human rights protections fall short of international standards.[43]   

Article 17 of the International Covenant on Civil and Political Rights provides that “[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.”  No similar explicit protection for privacy as such is contained in Canada’s human rights laws.   

The values underlying the human right of privacy are broader than issues of safeguarding personal information in the hands of government or compliance with established procedures in the gathering of evidence for criminal investigations or security intelligence, as important as these are.  How Canadian law and policy can be reformed to enhance the status and protection of individual privacy as a human right will be an important, challenging, and timely area for further study by the Committee.  

IV) IMMEDIATE RECOMMENDATIONS

 

A. Canada’s Representation at the United Nations Human Rights Commission 

The United Nations Human Rights Commission in Geneva is the foremost body on human rights in the United Nations system.  As Philippe LeBlanc observed to the Committee, “the UN Commission on Human Rights [is] the highest forum internationally for dealing with human rights violations by states.”[44]  

The Commission is comprised of 53 member states, which are elected on a regional basis.  For the purposes of representation on the Commission, Canada is in the “Western Europe and Others” group, or WEOG.  This regional group is comprised of Western Europe, Canada, the United States, Japan, Australia, and New Zealand.  WEOG has historically been the group to initiate and promote human rights actions at the Commission. 

This year, for the first time since the Commission’s creation, the United States was not elected to membership on the Commission.  In the upcoming 2002 session of the Commission, Canada will be the only non-European member on the Commission from the WEOG group.  It seems likely, therefore, that Canada will play a pivotal role on the Commission in the coming year.  With the events of September 11 and following, Canada’s role at the Commission becomes even more crucial, given the absence of the United States, and given that the Commission will likely take up the issue of human rights in the context of national and international measures against terrorism.[45]  

In recent years, though Canada’s official representative has been the Minister of Foreign Affairs, the working heads of our delegations to the Commission have been officials who have not been of ambassadorial rank.  As Philippe LeBlanc strongly urged us,[46] it will be particularly important, in light of the foregoing factors, for Canada’s delegation to the upcoming session of the Commission to be headed by a representative at the ambassadorial level. 

 

Recommendation

The Committee recommends that, given the particular significance of Canada’s role at the upcoming 2002 session of the United Nations Human Rights Commission, the Government of Canada should:

1.                    appoint someone of ambassadorial ranking as its representative at the Commission; and

2.                    ensure that the Canadian delegation includes active and informed parliamentarians of all parties (including independents), and from both Houses, who have experience and interest in the human rights field. 

 

            B. Canada’s Outstanding International Human Rights Reports 

As the relevant government officials acknowledged in their evidence to us, Canada has fallen behind in meeting its deadlines for submission of periodic reports to various international human rights treaty bodies.[47]  The reason given for this is the necessarily cumbersome process of co-ordinating the preparation of reports by the various federal, provincial, and territorial governments.  We were told that it is the intention of the various governments, through their representatives on the Continuing Committee of Officials on Human Rights, that all Canada’s outstanding reports to the human rights treaty bodies be submitted by the end of the current fiscal year.  We would like to support and underscore the importance of achieving this goal in order to ensure that Canada is brought up to date in its reporting obligations with all due speed.

 

Recommendation

The Committee recommends that, within the existing reporting processes as presently structured, the Government of Canada, in co-operation with the provincial governments and the territories, take the necessary steps to ensure that all Canada’s outstanding reports to the various international human rights treaty bodies are submitted by 31 March 2002.       

 

C. Balancing Human Rights and Security  

In the aftermath of September 11^th, increased resources, both financial and legal, are being committed to the global fight against terrorism.  It is precisely at times such as these that those committed to human rights need to be most vigilant.  But who is assessing the overall and cumulative impact of these new security and anti-terrorism measures on human rights?  In this era of increasing investment in security, there needs to be a corresponding commitment to safeguarding human rights.  Yet it is not a matter of choosing between security and human rights, but rather one of achieving an appropriate balance between them.   The expertise and independence of the Canadian Human Rights Commission make it a well suited body, if given appropriate resources, to undertake a serious study of whether proportionality is being achieved between national security and anti-terrorism measures and human rights.  Canada has an opportunity to provide international leadership by conducting such an analysis. 

 

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 to verify whether proportionality is being achieved between national security and anti-terrorism measures and human rights.

 

D.  Discrimination on the Basis of Social Condition 

In his appearance before us, Harinder Mahil, the Acting Chief Commission of the British Columbia Human Rights Commission, reiterated the recommendation of his Commission and of the Canadian Association of Statutory Human Rights Agencies (CASHRA) that Canada’s federal, provincial and territorial human rights codes be amended to include “social condition” as a prohibited ground of discrimination.[48]  Such a change has also been recommended by the Canadian Human Rights Act Review Panel in its June 2000 report as well as the Economic, Social, and Cultural Committee in its December 1998 concluding observations on Canada’s Third Report under the International Covenant on Economic, Social, and Cultural Rights.  Poverty has long been recognized as a contributing factor in the discrimination suffered by various disadvantaged social groups.[49]  

Canada could be a leader in better understanding poverty as a human rights issue.  During the previous Parliament, the Senate of Canada had the foresight to adopt a Private Senator’s Public Bill, Bill S-11, which would have amended the Canadian Human Rights Act to prohibit discrimination based on social condition.  Regrettably, this bill was defeated in the House of Commons.  We think that the government should revisit this important issue and bring this matter before the present Parliament for legislative action.   

 

Recommendation

The Committee recommends that the Government of Canada draft and table in Parliament amendments to the Canadian Human Rights Act that would add “social condition” as a prohibited ground of discrimination.

 

            E. Canada’s Human Rights Commissions 

The Committee heard from the top officials of the Canadian and various provincial human rights commissions.[50]  From their evidence, we have derived  a number of ideas for improvements to Canada’s human rights laws.  We have already addressed the issue of discrimination on the basis of social condition.  

Other issues that arose from the evidence include: 

·                    Making specific references to key international human rights instruments in the Canadian Human Rights Act as well as in provincial and territorial human rights codes.  The status and relevance of international law for our domestic commissions, tribunals, and courts involved in the application of human rights law must be made clear.  The historical connection is clear and the law should reflect this reality.  Moreover, such legislative references to international human rights law would help to ensure that our human rights commissions can live up to the minimum international standards for such bodies set out in the 1991 United Nations Paris Principles.  Among other roles, the Paris Principles mandate that domestic human rights commissions “promote and ensure the harmonization of national [read: domestic – i.e., federal, provincial and territorial] legislation … and practices with the international human rights instruments to which the State is a party…”

·                    Ensuring that the educational and promotional mandates of human rights commissions in Canada receives adequate emphasis and resources.  The promotion and education roles of human rights commissions do not receive the financial resources that they should.  Promotion and educational activities can play an important role in preventing future discrimination and human rights violations.  Yet the commissions are obligated to give priority to handling specific complaints, which takes up most of their resources. 

·                    Ensuring adequate resources for human rights commissions’ role in reviewing proposed legislation and policies.  Human rights commissions in Canada have the mandate to conduct such reviews.  When they are able to conduct these analyses and publicize their findings, this aspect of human rights commissions’ work can be invaluable for parliamentarians.  But, again, because of the emphasis on their complaint redress function, commissions must, in the absence of a reference from the government, be selective in their interventions on proposed laws or policies.  

·                    Making human rights commissions more directly answerable to Parliament or the legislature, rather than through a government minister.  This is currently the process which is followed for the federal Auditor General and Chief Electoral Officer.  Similar processes for human rights commissions would help to emphasize their independence from the executive government.

·                    Promoting greater uniformity in the human rights legislation across federal, provincial and territorial jurisdictions.  

Since some of these issues were also raised in the 2000 Report of the Canadian Human Rights Act Review Panel, the Government could address them in the context of its response to that Report.  

Recommendation

The Committee recommends that the Government of Canada respond to the Canadian Human Rights Act Review Panel’s 2000 Report during the current Session of Parliament.  In the context of this response, the Government should address the following issues: 

1.                  Adding express references to key international human rights instruments to the Canadian Human Rights Act.

2.                  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 CASHRA, take steps to develop a model human rights code for consideration by all Canadian jurisdictions.

 

F. International Human Rights Web-Site 

Professor Anne Bayefsky observed to the Committee that the whole process of Canada’s periodic reporting to the international human rights treaty bodies suffers from a lack of consistent and significant media attention.  The Department of Canadian Heritage, which is instrumental in putting together Canada’s periodic reports, does make Canada’s reports, and the treaty bodies’ observations, available on its web-site.  However, apart from this and some other selective initiatives, public outreach and education on international human rights obligations and enforcement mechanisms is generally quite limited.  As a result, Canadians who have these rights, including the right to bring complaints to certain of the treaty bodies, may have no idea how to access them.  As Canada is bound by these legal instruments, through which rights of the people of Canada have been recognized, these instruments should be publicized and easily accessible like other laws. 

 

Recommendation

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.

 

G. Supporting the Work of the Canadian Association of Statutory Human Rights Agencies 

The Committee heard from Keith Norton, the Chief Commissioner of the Ontario Human Rights Commission.[51]  Among other matters, Mr. Norton shed some light on the important work done by CASHRA.  This Association provides a valuable interface among the federal, provincial, and territorial human rights commissions. CASHRA helps to facilitate the co-ordination and development of policies among the human rights bodies and regularly brings forward its collective wisdom on human rights matters in the form of policy resolutions, which its members take back to their respective governments.  From time to time, CASHRA  also seeks to intervene in important court cases involving human rights.  

CASHRA’s activities are funded by fees levied on each of the participating commissions, roughly according to the population that each serves and represents.  However, this funding arrangement appears to be inadequate.  Mr. Norton indicated that CASHRA’s financial resources are very limited – to the point where, in its interventions in key human rights litigation, it is relying on legal counsel working on a pro bono basis.[52]  The current President of CASHRA, Harinder Mahil of the B.C. Human Rights Commission, also strongly urged that the organization be given specific roles and resources by the various governments.[53]  It should be noted that, at least with respect to the Canadian Human Rights Commission, there is a statutory obligation for the Commission “to maintain close liaison with similar bodies or authorities in the provinces in order to foster common policies and practices.”[54]

 

Recommendation

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.

 

H. Conference of Federal, Provincial, and Territorial Ministers Responsible for Human Rights 

While the Continuing Committee of Officials on Human Rights meets semi-annually to exchange information relating to Canada’s international human rights obligations, it is comprised of civil servants and has no decision-making or policy-making role.  Moreover, the Continuing Committee meets behind closed doors and its members and activities are not accessible or directly accountable to the Canadian public.  

We were informed that there has not been an intergovernmental meeting on human rights at the ministerial level in some thirteen years.[55]  This is clearly far too long a hiatus.  As this Report and our study have shown, there is no shortage of important questions facing Canada in the area of human rights implementation, and existing processes are in need of reassessment and reform.  Without face-to-face ministerial involvement, human rights challenges facing Canada will be diminished or ignored.

 

Recommendation

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 ministerial level.  These meetings should be held on at least a triennial basis. 

   

V) CONCLUSION 

Earlier in this Report we outlined the three phases in the development of human rights.  We are currently in the third phase, which requires that we actually live up to our human rights obligations.  During this third phase, Canada is uniquely placed to be at the forefront of the necessary maturation of the machinery of government dealing with human rights.  The Committee therefore feels that it is both timely and essential that Parliament’s role in dealing with human rights-related issues expand.  Parliament and parliamentarians must become more active in dealing with human rights, and in developing the machinery of government so that it is equipped to deal with these issues in an appropriate manner.  We must, in effect, assert and expand upon Parliament’s rightful role in dealing with human rights issues.  

This need for increased parliamentary involvement in the human rights field, especially in ensuring respect for internationally derived rights, is particularly important in an emerging international environment in which new global security issues are, understandably, attracting growing attention.  In such circumstances, Parliament must be involved in arriving at an appropriate balance between human rights and security concerns.   

Human rights can only flourish in an environment of good governance that is respectful of the rule of law.  But even these attributes are not, in themselves, sufficient conditions.  As this Report identifies, Canada, despite its generally positive record, cannot be complacent when it comes to dealing with human rights issues.  This Committee can be instrumental in meeting the challenges that we face in this respect.  We can help translate support for human rights into concrete measures and actions.  We are ready and willing, indeed eager, to begin addressing the issues enumerated within this Report.

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APPENDIX A:  WITNESSES

Issue	Date	Witnesses
2	Monday, 4 June 2001	As an Individual:
		Professor Anne F. Bayefsky, Department of Political Science, York University.
		From Amnesty International Canada:
		Alex Neve, Secretary-General.
	Monday, 11 June 2001	From the Department of Canadian Heritage:
		Norman Moyer, Assistant Deputy Minister, Canadian Identity, and Chair of the Continuing Committee of Officials on Human Rights.
		From the Department of Foreign Affairs and International Trade:
		Adèle Dion, Director, Human Rights, Humanitarian Affairs, and International Women’s Equality Division;
		John T. Holmes, Director, United Nations, Criminal, and Treaty Law Division.
		From the Department of Justice:
		Irit Weiser, Director, Human Rights Section;
		Paul Rishworth, University of Auckland.
		As an Individual:
		Professor Ken Norman, University of Saskatchewan.
3	Monday, 24 September 2001	From Rights and Democracy:
		The Honourable Warren Allmand, P.C., President.
		As an Individual:
		Professor Stephen J. Toope, Faculty of Law, McGill University.
	Monday, 1 October 2001	As Individuals:
		Marilou McPhedran, Program Director, International Women’s Rights Project, York University;
		Dean Peter Leuprecht, Faculty of Law, McGill University.
4	Monday, 29 October 2001	As an Individual:
		William Schabas, Director, Irish Centre for Human Rights, National University of Ireland, Galway.
		From the Canadian Human Rights Foundation:
		Ruth Selwyn, Executive Director;
		François Crépeau, Faculty of Law, University of Montreal;
		El Obaid Ahmed El Obaid, Faculty of Law, McGill University.
		From the Ontario Human Rights Commission:
		Keith Norton, Chief Commissioner.
	Monday, 5 November 2001	As Individuals:
		Professor Errol P. Mendes, Faculty of Law, University of Ottawa;
		Philippe LeBlanc, Permanent Delegate of the Dominican Order at the United Nations Commission on Human Rights in Geneva.
5	Monday, 26 November 2001	From the British Columbia Human Rights Commission:
		Harinder Mahil, Acting Chief Commissioner.
		From the New Brunswick Human Rights Commission:
		Charles Ferris, Legal Counsel.
		From the Nova Scotia Human Rights Commission:
		James E. Dewar, Q.C., Chair;
		Mayann E. Francis, Executive Director.
		From the Canadian Human Rights Commission:
		Michelle Falardeau-Ramsay, Q.C., Chief Commissioner;
		John Hucker, Secretary General;
		Richard Tardif, General Counsel.
	Monday, 10 December 2001	From the Manitoba Human Rights Commission:
		Janet Baldwin, Chairperson.
		From the Saskatchewan Human Rights Commission:
		Donna Scott, Director.

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 APPENDIX B:  

SELECTED DOCUMENTS PREPARED FOR OR RECEIVED BY THE COMMITTEE DURING THIS STUDY  

Documents Prepared by the Committee’s Research Staff

1.                  Briefing Notes on Human Rights Obligations and the Machinery of Government in Canada, 18 September 2001.

2.                  Canadian Domestic Human Rights – Selected Documents, 12 June 2001.

3.                  Canada’s International Human Rights Obligations – Selected Documents, 12 June 2001.

4.                  Human Rights and the Legislative and Treaty-Making Processes:  Comparative Material on the Role of Parliament and Parliamentarians, 17 August 2001.

5.                  International and National Human Rights Law Systems:  Selected Writings, 18 August 2001.

6.                  Regional International Human Rights – Selected Documents:  The Council of Europe and the Organization of American States, 12 June 2001.

   

Exhibits

1.                  Amnesty International Canada, Amnesty Report 2001.

2.                  Robert Howse and Makau Mutua, Protecting Human Rights in a Global Economy:  Challenges for the World Trade Organization, Montreal:  Rights and Democracy, 2000.

3.                  The Honourable Noël Kinsella, Some Historical Notes on the Establishment of the Continuing Federal-Provincial Committee of Officials Responsible for Human Rights, n.d.

4.                  Adeena Niazi and others, letter dated 25 September 2001.

5.                  Rights and Democracy, Annual Report, 1999-2000, Montreal.

6.                  Rights and Democracy, “Appeal to Governments,” 2001.

7.                  Rights and Democracy, “Board of Directors – 10 June 2001:  The Centre’s Involvement in Canadian Human Rights Issues.”

8.                  Rights and Democracy, Is Free Trade a Fair Game?  Stand Up for Human Rights, 2001.

9.                  Rights and Democracy, Letter to the Right Honourable Jean Chrétien, P.C., M.P. dated 20 September 2001.

 

 

Briefs and Other Documents Received from Witnesses and Other Individuals

1.                  Anne Bayefsky, Report –The UN Human Rights Treaty System:  Universality at the Crossroads, April 2001.

2.                  British Columbia Human Rights Commission, Submission to the Committee with Annexes, 8 November 2001.

3.                  Canadian Association of Statutory Human Rights Agencies, Memorandum dealing with proposed draft resolutions dated 27 March 2001.

4.                  Canadian Heritage, Background Document on the Origins and History of the Continuing Committee of Officials on Human Rights, 1 October 1999.

5.                  Canadian Heritage, Presentation on human rights programs, June 2001.

6.                  Canadian Human Rights Foundation, presentation to the Committee, 29 October 2001.

7.                  Court Challenges Program of Canada, Brief, November 2001.

8.                  James E. Dewar and Mayann Francis, Presentation of the Nova Scotia Human Rights Commission, 26 November 2001.

9.                  Charles Ferris, Submission of the New Brunswick Human Rights Commission, 26 November 2001.

10.              International Women’s Rights Project, Centre for Feminist Research, York University, Poster Entitled “The First CEDAW Impact Study Overview,” June 2000.

11.              Manitoba Human Rights Commission, Submission to the Committee with accompanying documents, 10 December 2001.

12.              Marilou McPhedran, Susan Bazili, Moana Erickson, and Andrew Byrnes, The First CEDAW Impact Study:  Final Report, Toronto, 2000.

13.              Errol Mendes, “The Role of Parliament in Assessing Canada’s Implementation of Its Domestic and International Human Rights Obligations:  The Need for a New Approach After September 11, 2001,” 5 November 2001.

14.              Joan Myles, Letter to the Honourable Raynell Andreychuk dealing with the Newfoundland and Labrador Human Rights Commission dated 5 October 2001.

15.              Ken Norman, “Taking Human Rights Lightly: The Canadian Approach,” (February 2001), 12 National Journal of Constitutional Law, pp. 291-308.

16.              Paul Okalik, Premier of Nunavut, Letter to the Honourable Raynell Andreychuk dated 18 October 2001.

17.              Ontario Human Rights Commission, Human Rights Commissions and Economic and Social Rights, n.d.

18.              Tina Piper and Wayne MacKay, “The Domestic Implementation of International Law:  A Canadian Case-Study,” Text of a speech given at Beijing on behalf of Professor MacKay.

19.              Prince Edward Island Human Rights Commission, Submission to the Committee, October 2001.

20.              Rights and Democracy, Report of the Think Tank on “Strengthening the United Nations Mechanisms for the Protection and Promotion of Human Rights”, 2 August 2001.

21.              Saskatchewan Human Rights Commission, Submission to the Committee with accompanying documents, 10 December 2001.

22.              William A. Schabas, “Twenty-Five Years of Public International Law at the Supreme Court of Canada,” (July 2001), 79 Canadian Bar Review, pp. 174-195.

23.              David Schneiderman, “Implementing International Human Rights Commitments:  The Difficulties of Divided Jurisdiction,” n.d.

24.              Stephen J. Toope, “Inside and Out:  The Stories of International Law and Domestic Law,” (2001), 50 UNB Law Journal, pp. 11-24.

25.              Stephen J. Toope, “The Uses of Metaphor:  International Law and the Supreme Court of Canada,” (March/June 2001), 12 Canadian Bar Review, pp. 534-541.

 

 

Other Documents

1.                  Australia, Senate Legal and Constitutional References Committee, Trick or Treaty:  Commonwealth Power to Make and Implement Treaties, November 1995.

2.                  Organization of American States, Lima Declaration:  Inter-American Democratic Charter, 11 September 2001.

3.                  Vladimir Volodin, Human Rights:  Major International Instruments, Status as at 31 May 2001, UNESCO.

4.                  The Honourable the Very Reverend Lois Wilson, Human Rights Linkages Initiative:  Fall 1999, National Consultations, November 26-27, 1999, Ottawa, Canada.