Proceedings of the Standing Senate Committee on
Human Rights
Issue 4 - Evidence
OTTAWA, Monday, April 20, 2009
The Standing Senate Committee on Human Rights met this day at 6:34 p.m. to examine issues of discrimination in the hiring and promotion practices of the Federal Public Service, to study the extent to which targets to achieve employment equity are being met, and to examine labour market outcomes for minority groups in the private sector.
Senator A. Raynell Andreychuk (Chair) in the chair.
[English]
The Chair: Honourable senators, we have been studying the issue of the Public Service Commission and all other related employment agencies and groups in the federal government. We have tabled several reports, and we are ready to provide another.
I am pleased that we can broaden our debate this evening with witnesses from the National Council of Visible Minorities in the Federal Public Service, NCVM. We have Dr. Igho Natufe, President; Ms. Catherine Kizito, Chief Administrative Officer; and Mr. Marcel Kabundi, Chair of the NCVM Committee at the Correctional Service of Canada. Mr. Waheed Khan is a member of the Visible Minority Advisory Committee at Environment Canada.
Igho Natufe, President, National Council of Visible Minorities in the Federal Public Service (NCVM): Thank you very much for inviting us to deliberate with you this evening on the subject matter that you have identified. This is the second time that this committee has invited us. We were here 15 months ago and since then, we have engaged in activities that are of interest to this committee. We have sent copies of our first annual report to the Clerk of the Privy Council and to this committee, which touch on most of the issues that we will be talking about this evening.
You have recognized my colleagues who are here with me to make this presentation. I do not intend to read all I have here in the opening remarks because I think we need more time for meaningful engagement in questions and answers. I will skip two or three sections from this report, and I will focus on the workforce availability and other parts of the report.
Based on the results of a given national census, Statistics Canada and HRSDC provide estimates of workforce availability of the four groups in the Employment Equity Act. It excludes landed immigrants or permanent residents, an issue that NCVM finds problematic in the Federal Public Service, as opposed to the practice in the private sector where landed immigrants are factored in.
When we look at the 2006 Census, we find that the estimates for women include landed immigrants but surprisingly, do not include landed immigrants when it comes to visible minorities. We ask why there is such a discrepancy. We know that several of the women who are factored into the women's category are also visible minorities. Therefore, the question arises as to whether they were included in women but excluded from the visible minority calculation. We have addressed this issue with the PSC and we believe that departments and agencies have to be more proactive in calculating the workforce availability, WFA.
Before the 2006 Census, they were using the 2001 Census, which was eight years old. Even eight years later, they were unable to comply with the old requirements.
We have proposed to the Privy Council and to the federal departments and agencies a method of forecasting that will save us the pain of waiting for 10 years. As it is, departments do not have to comply because every year we are behind in the calculation of how to meet the WFA targets. If we had a forecasting system, we would know the number for a given future year.
Federal departments and agencies are required to apply the WFA in the employment and promotion of members of the four groups under the act at all levels and categories in their respective institutions. Unfortunately, with regard to visible minorities, almost all departments and agencies have failed to comply with the key requirements of the Employment Equity Act.
As Kevin Lynch, the Clerk of the Privy Council, said in The Sixteenth Annual Report to the Prime Minister on the Public Service of Canada:
Achieving a fully representative workforce in the public service remains an important goal. Our objective is to create a public service workforce that is truly representative, at all levels, of the diversity of Canada's population. Many have argued that if we can make real progress with respect to gender representation, as we have, we can surely do the same for persons with disabilities, Aboriginal peoples and members of visible minority groups. We accept this challenge.
This is the fundamental issue with which the NCVM has been grappling since its inception 10 years ago, an issue that was underlined in the embracing change recommendations that were endorsed by the federal government and approved by the Parliament of Canada in 2000.
Our analysis of the annual reports of the PSC and Treasury Board, as well as the employment equity plans of most departments and agencies, consistently underline major gaps in the representation of visible minorities, especially at the middle management and senior executive levels.
While some departments, such as Health Canada and NRCan, for example, have performed well, with much work still to be done, most departments and agencies, including PCO, CSC, Justice Canada, Heritage and ACOA, significantly lag behind. Barriers to the recruitment and promotion of visible minorities include the ethnocultural and racial attitudes of most hiring and senior managers irrespective of the laudable policies and programs that the departments have initiated.
After a period of denial, the Department of Justice was compelled to recognize this phenomenon by ordering its managers across the country to undertake mandatory anti-racism and cultural diversity courses.
The PSC is one of NCVM's key stakeholders. It plays a critical role in determining the policies and practices geared toward the identification and elimination of systemic barriers impacting on the employment and promotion of staff in the public service. This function has significant implications for visible minorities. Thus, the annual reports and statements of PSC on employment equity are of major concern to us in NCVM.
One of the barriers that the PSC unwittingly injected into the system is the ``best-fit concept'' in the PSEA. This has provided most managers with an opportunity to legally discriminate against visible minorities.
We find it disturbing that in its 2007-08 annual report to Parliament the PSC excluded data on visible minorities in the PSC, alleging that the figures for visible minorities in previous annual reports had been underestimated. I refer you to Annex 2, which you have in the attachment.
The PSC's presentation to this committee on March 23, 2009 raised fundamental questions bordering on its credibility and legality vis-à-vis the Employment Equity Act. Based on its alleged new device of calculating the numbers of applicants to externally advertised positions, the PSC claimed that ``the recruitment rate for visible minorities was 15.6 per cent in 2006-07 and 17.3 per cent in 2007-08.''
It is interesting to note that the Treasury Board report states that visible minorities constituted 9.2 per cent of all new hires in 2007-08. This is a 0.5 increase from 2006-07. We invite the PSC to provide a breakdown of the 17.3 per cent employed in 2007-08, indicating their employment status as well as their levels and categories in their respective departments and agencies.
The approach that the PSC used in calculating its numbers is based on questionable methodology. It introduced self-declaration into the calculation process vis-à-vis self-identification, as required by the Employment Equity Act.
In a February 2007 document, PSC offered this explanation:
To differentiate the requirement between the EEA and the PSEA, the PSC is working on a new ``self-declaration'' form that will replace the current ``self-identification'' form in the internal application process. The PSC will prepare a tool to clarify the circumstances when it will be necessary for an applicant to self-declare.''
We question the right of the PSC to create a self-declaration form to replace the current self-identification form in the internal application system. Self-identification is a requirement of the Employment Equity Act.
In the absence of a revised Employment Equity Act, it is the view of NCVM that the use of self-declaration for employment equity purposes is illegal. Furthermore, since PSC claims that self-declaration is under its jurisdiction in the Public Service Employment Act, its use raises a measured concern regarding the Charter rights of Canadians. We want to know if all Canadians — including white male Canadians — are required to self-declare when they apply. If the answer is in the negative, then self-declaration is in violation of equality rights as defined in section 15.1 of the Canadian Charter of Rights and Freedoms.
It is the view of NCVM that it is illegal for the PSC to employ self-declaration and cross-reference it with self- identification by using self-declared visible minority candidates to determine the number of those who self-identify. We invite the committee to investigate this question.
In its documents meant for discussion in February 2007, the PSC wrote:
The PSC is currently considering whether candidates who apply on external and internal appointment process targeted to Aboriginal peoples should be required to complete an ``Aboriginal Self-Declaration Form'' and to provide the relevant documentation and information to substantiate their Aboriginal status.
While self-declaration has specific historical and legal implications for Aboriginal Canadians, it has no material relevance to visible minorities. Thus, if the PSC is to extend self-declaration to include visible minorities for Federal Public Service jobs and all Canadians, it should indicate the relevant information and documentation under the law that they must provide to substantiate their status.
In conclusion, we recognize the good work of the PSC in facilitating the increase of visible minorities in the public service through the development and promotion of pre-qualified visible minority executives, the career advancement program and the management trainee program.
NCVM will continue to collaborate with all stakeholders, including the PSC and Treasury Board, in enhancing the employment retention and promotion of visible minorities based on an open, just and transparent hiring system in the public service. However, as a major partner in this venture, the PSC should be ready to share its methodology with NCVM and all other stakeholders. This will underline the transparency, legality and credibility of its methodology. We propose that the Privacy Commissioner be asked to audit the legality and methodological approach employed by the PSC in this regard.
The suspicion and cloud of legitimacy surrounding the 2007-08 annual report and the March 23 statement of the PSC before this committee lends credence to NCVM's demand for an independent body to evaluate public service performance regarding the Employment Equity Act implementation. We hereby reiterate this demand by calling for the appointment of an employment equity commissioner with full powers to monitor and report to Parliament on the progress of departments and agencies vis-à-vis their compliance with the Employment Equity Act.
We would be pleased to respond to your questions.
Senator Jaffer: I understand that the goal is to have one visible minority in five employees. How far away are we from that goal?
Mr. Natufe: We are far; it is near one in 10.
Senator Jaffer: Can you explain what ``best fit'' means?
Mr. Natufe: ``Best fit'' as used in the Public Service Employment Act, is to give the manager the right to determine who would best fit in his or her organization. The best-fit concept has been used to indicate cultural suitability or otherwise.
Senator Jaffer: I am sure you have read the testimony given by Ms. Barrados to this committee. It concerned me when she spoke of non-advertised jobs. She sounded frustrated in saying that non-advertised jobs explain why there is a policy. There is no accountability with non-advertised jobs. Perhaps, I am putting words in her mouth. Can you expand on your organization's opinion on non-advertised jobs?
Mr. Natufe: I am happy that Ms. Barrados owns up to the issue of non-advertised jobs, which have caused a lot of grief. The 2006-07 annual report of the PSC made reference to this question, saying that most managers use non- advertised positions via acting appointments. This accounts for 41.3 per cent of all promotions. These non-advertised jobs are being used in a way that discriminates against visible minorities.
This is not NCVM's statement. This is reflected in the 2006-07 annual report of the PSC. It is a major concern to us as an organization as our members are denied — most of the time — of acting opportunities. Most of these non- advertised jobs are filled on an acting basis. After a time, the incumbent is given the right to compete and, of course, will get the job.
Senator Jaffer: Is that when ``best fit'' comes into play?
Mr. Natufe: Best fit comes into that also.
Senator Jaffer: I have a question on self-identification and self-declaration. I appreciated your explanation and we will be looking at the recommendation you made.
When I speak to many people who work in the Public Service Commission, they do not want to self-identify because they are concerned they will not get the job. What has your organization's experience been regarding why people do not want to self-identify?
Mr. Natufe: We have asked the Public Service Commission and the employer — Treasury Board — to explain to employees, and to Canadians, the benefits of self-identification. If an employer cannot explain the benefits of self- identification to its employees, the onus lies with the employer. NCVM has engaged with senior management. We met with them on September 12 last year where this issue was discussed extensively.
When people ask this question, managers will say they would fill the gap if only the employees would self-identify. However, the question is do they need to self-identify before the managers recognize their quality, expertise and what they bring into play? It is really an excuse used by several managers to avoid the delicate question.
Senator Jaffer: The last time you appeared before the committee you spoke compellingly about how visible minority women are doubly discriminated against. They are not hired because they are part of a visible minority and because they are women. Do you have any statistics to support that comment? Has any further work been done on the issue?
Mr. Natufe: We have the statistics but I do not have them with me today, although I can provide them to the committee. Two major issues underlined the movement toward employment equity. The first issue, with which I am sure you are familiar, is whether she is a francophone. By definition, ``francophone'' excluded visible minority francophones from Haiti, Senegal, Vietnam or other places. Women are excluded as women when the count is made. If you look at the list of directors, deputy directors, ADMs and DMs in the federal government, you will see that visible minority women are grossly under-represented.
Senator Poy: You mentioned that the Public Service Commission has questionable methodology. When Ms. Barrados appeared before the committee, I tried to obtain an explanation from her on how they suddenly changed the percentage, but her explanation was not clear. Do you know how they derived the different percentage? What is the difference between self-declaration and self-identification?
Mr. Natufe: We all know that the Employment Equity Act requires members of the four groups to self-identify. The EEA already defines visible minorities as Canadians who are not Aboriginal or not white in colour or Caucasian. By definition, visible minorities are people from Asia, the Middle East, Africa, the Caribbean, South America or the Hispanics. When you apply, you are asked to self-identify by ticking a box to indicate that you are Southeast Asian, Filipino, Black, Chinese, Japanese, or other. That is self-identification.
Self-declaration arose from the movement of the Aboriginals because they had reason to believe that certain individuals in government, falsely in their view, self-identify and, therefore, received the benefits of Aboriginal status. They asked that the test include self-declaration such that if you are Aboriginal, you have to declare which nation you belong to and which treaty binds you. In that way, historical fact is used to substantiate your status in self-declaration, making it different from self-identification. I can self-identify as an Aboriginal but I would be asked to self-declare.
Senator Poy: Self-declaration concerns Aboriginals.
Mr. Natufe: No, self-declaration began with Aboriginals. The PSC has used that as a base to introduce self- declaration. In the document for discussion purposes in February 2007, the PSC used self-declaration to replace self- identification. We have the documents if you wish to see them.
How can you introduce a new concept that you have not defined clearly to the stakeholders and use it to replace an existing concept required by the Employment Equity Act?
Senator Poy: You mentioned people from Asia and Africa. What happens to someone who is of mixed heritage? For example, I talked to a woman who has an Asian father and a European mother. She told me that she was afraid she would not get a job and dyed her hair blond. She looked Caucasian — more like her mother. She is a francophone. How do you self-identify? Do you have to look like a visible minority to be a visible minority?
Mr. Natufe: That is a very good question. Many of our members have Caucasian mothers. One of them proposed that there be a group for mixed-race people. It depends on the society. Certain societies are patrilineal, whereby a person whose father is East Indian and mother is from England or France, will say that he or she is East Indian.
Senator Poy: In Canada, if that person looks English, how does he or she self-identify? It is up to the individual.
Mr. Natufe: Yes. Self-identification is voluntary. It is not mandatory in law. That was why the Aboriginal group raised the issue of self-declaration. Someone could say that he or she is Aboriginal and receive all the benefits so it was to protect their own interests. The PSC has borrowed that concept to inject into the hiring system without offering a clear definition to stakeholders.
Senator Poy: You mentioned that you would like a transparent hiring process. Have you proposed that to the PSC? How can it be accomplished?
Mr. Natufe: The PSC has complained to this committee about the non-advertised positions, which are not transparent. We are asking that these positions be advertised and that members of an interview board understand the cultural sensitivities of all applicants. For example, if I do not look members of a panel in the eyes when I address them, it is out of respect. However, if I were to do that in an environment where panel members do not understand such a culture, they might conclude that I am timid and unsuitable for the position.
An open and transparent process would include cultural awareness of all applicants. As well, panel members would be from the various groups who understand peculiarities.
Senator Poy: Are you saying that currently, no such group exists to look at this aspect of hiring and promotion in the PSC?
Mr. Natufe: In the PSC, the hiring is always done online, but departments and agencies have the face-to-face interview process. It is at the departmental agency level that this is more pronounced.
Senator Poy: Even if the hiring is online, you still have to have interviews.
Mr. Natufe: That is correct, yes. We are selected from the online applications.
The Chair: You want to eliminate the best-fit doctrine in the Public Service Employment Act.
Mr. Natufe: Yes.
The Chair: Does that mean that the best-fit doctrine, meaning fit for the job within a department, et cetera, takes away the merit principle?
Mr. Natufe: No.
The Chair: We would like you to put on the record how you differentiate between the merit system and the best-fit doctrine.
Mr. Natufe: Before the introduction of the best-fit concept, ``merit'' was defined as the qualities that are required to perform a given job. You determine if candidate A or B is more qualified based on the job description and the applicant's experience and qualifications and education, and you say that he or she is more qualified.
The best-fit concept was introduced in 2005, on top of merit, and, in fact, it now supersedes merit. Even though he is more qualified than she is, because of best fit, the employer can say that the woman will fit into the environment better than the man will, even though she is less qualified.
We are saying that we want to be given the chance to compete on the merit principle, not on the best-fit principle. We want best fit to be thrown away and merit to be brought back as the paramount criterion to determine a candidate's suitability to do the job.
The Chair: Are you for or against self-identification? I ask that very seriously, because this country was founded on many basic values, one being that I could determine, to the greatest extent, my own future, if I may say so. We are hesitant to have governments intrude and speak for us. We are mindful of other countries where governments have identified groups and where that identification has led.
Self-identification is something I grew up with, saying that I will determine whether I want to be seen as Caucasian, a Black person, a yellow person, a woman, a man, a lawyer or a sailor. In other words, I will determine, to the greatest extent possible, how I am defined.
We do not live in a perfect world, and it is very difficult. It is a judgmental world in many ways, particularly at the point of employment. If we did not leave you the discretion to say, ``I want to either compete all over the place or I want to be seen as a visible minority,'' how would we go about supporting visible minorities if we did not use the self- identification mode? What concept would we use?
As I understand the evidence before this committee and from my own studies, albeit flawed, self-identification is a greater measure of freedom for the individual than anything else we have been able to come up with. We have not been selling it well, and we have not pointed out why it is a better model and how it benefits all, but that is why I am asking you. Do you agree that, at the moment, the best thing we have is self-identification?
I am putting aside the self-declaration because you have made yourself clear on that and we need to look at that. On self-identification, though, if we were just to stay there, is that the best we can do and we had better perfect that model and make sure that everyone understands why it helps all of us, or do we find another model? If so, has your group come up with another way of supporting visible minorities and the target groups other than by self-identification?
Mr. Natufe: That is a very good question. We have no alternative to self-identification. Even though it may be flawed, it serves an historical purpose. For most of us around this table, when we were employed, there was no Employment Equity Act. I did not have to self-identify when I joined the government in 1970 in Indian Affairs. I applied; I was qualified to do the job as an expert on the Soviet North. There was no self-identification at the time.
I think self-identification came because of the necessity of the time. As a child of historical necessity, it has a function, but perhaps during the course of reviewing the act, we may come up with an alternative.
One of the problems that we are having today with that concept is the difficulty in selling the concept to Canadians. What are the benefits? To give you an example, when my elder son came back to Canada after working for about eight years in St. Lucia, he told me, ``Dad, I went to fill in a form with the PSC, and they said I should self-identify. What is this?'' It was the same thing with his younger brother. The younger generation is having difficulty understanding self- identification, so we need to sell it. I do not know how to sell it.
The Chair: We put in self-identification as the best model we had to assist in getting the proper proportions of visible minorities, and I will just take that target group, into the Public Service Commission. The general free application forms did not produce the correct proportions of visible minorities, women, Aboriginals and disabled, so we had to find a mechanism. Are you now saying that should we forget about the four target groups?
Mr. Natufe: No.
The Chair: That is what I am trying to get at. If you believe that the target groups are necessary within the Employment Equity Act, is self-identification the best methodology? Have the fine minds sitting at this table come up with some other alternative or fine-tuning to make it better, fairer, more just?
Mr. Natufe: Self-identification, as we both said, was brought in to rectify historical wrongs in the hiring process, so it has a function. That is the best we can have for now. When we have to review the act, we should be able to come up with two things. One is how to make it more meaningful, and if not, what we can propose as an alternative. In the absence of the system complying with the hiring processes, self-identification seems to be the most valuable instrument to use.
The Chair: In your studies, analyses and pondering, if you come up with recommendations of how to improve the self-identification, please provide them to the clerk so that we can study them and include them in our report. You are the people we look to as the experts. Please let us know if you come up with a better process than self-identification. We do not need to wait for an amendment process. That is why we are here. We are studying whether this act is adequate. The time is now, not at a later date. If you have some models, bring them.
Mr. Natufe: Thank you for offering us that opportunity. We will do that within a couple of months.
Senator Lovelace Nicholas: My question concerns Aboriginal people.
I live in a community surrounded by a non-Native community, and there are quite a few Aboriginal communities like that. I have visited these places, and I find the Aboriginal people cannot get jobs in the nearby non-Native communities because of racism and stereotyping. I think many First Nations people do not apply for available jobs just for the fact that they are still being discriminated against.
I know for a fact that non-Native people get promoted before First Nations people, especially if she is a First Nations woman. They just skim by them and do not even pay attention. Sometimes they do not even realize she is there.
I also find that there are not many people working in these sectors. I live around these communities and towns and I visit them. What do you think the solution would be or could be, or can we come up with a solution?
Mr. Natufe: With respect to Aboriginal people?
Senator Lovelace Nicholas: Yes.
Mr. Natufe: First, I cannot speak for the National Aboriginal Council. To answer as a Canadian, I think we can make broad statements, if that is permitted. I have no jurisdiction to speak about Aboriginal people.
Senator Lovelace Nicholas: I thought one of your studies included Aboriginal people.
Mr. Natufe: Not exactly. I was making reference to what the PSC had referred to, injecting the concept of self- declaration.
Senator Lovelace Nicholas: This is my first day and I want to state the fact that Aboriginal people are always overlooked and not hired.
The Chair: Your point was well made and well taken by all of us.
Senator Jaffer: You have kindly said that you will provide the committee with information with respect to women. Please send that information to our chair.
The last time you were here, you said that you had established 25 committees, departments and agencies. What is happening with those committees? Are you establishing an action plan to promote visible minority hiring within the department? What is happening there? How are you educating the different departments about hiring minorities?
Mr. Natufe: Departments and agencies establish action plans to employ the four target groups. The National Council of Visible Minorities in the Federal Public Service in each department and agency has visible minority committees that help work with superiors, deputy heads and senior managers in order to ensure that those agencies comply with the Employment Equity Act.
My colleague Mr. Khan, for example, is with Environment Canada Visible Minority Advisory Committee. That committee works internally within the department equal to what we do nationally. My other colleague, Mr. Kabundi, does the same thing for CSC.
These various departments and agencies have committees of visible minorities that articulate the views of our members and work with senior managers to ensure that departments execute their own action plan. As you may know through your own research, departments produce action plans that fail to meet the target.
Waheed Khan, Member of the Visible Minority Advisory Committee at Environment Canada, National Council of Visible Minorities in the Federal Public Service (NCVM): At Environment Canada, we have founded an advisory committee of employment equity groups, and visible minorities are part of that. We are developing work plans and methods of how to promote an inclusive workforce within the department.
A visible minority community, as you know, is not a certain community at all. It is a group of people who come from all over the world. Just because they are not in this group or that group, we call them the visible minority committee. When we left one country and came to Canada, we came here as Canadians. We did not know that we would be visible minorities.
In that context, what we are trying to achieve is finding out how we can have a fair system, where people are able to contribute according to their talent and their ability to contribute. How can we make the public service a service of excellence? How can we provide best services to Canadians? I am speaking about Canadians of all origins, as well as new Canadians and all Canadians. Obviously, when we provide services to Canadians, we do not take into consideration how long it took them to arrive to this country. We take into consideration how good of a citizen they are and how they are working and contributing.
When we look at that, in that spirit, then we see self-identification, for instance, as a temporary means. It is working currently, but as our president has elaborated, when we focus too much on those kinds of things — and now it seems we are graduating from self-identification to self-declaration and making it more and more bureaucratic and complicated — we lose sight of the ultimate objective.
Today's visible minority could be tomorrow's visible majority. All these things are temporary. What we are trying to aim for is how to build an inclusive society in Canada, not just in the public service, but also in Canada. The public service can provide an example. We can live that example and provide that leadership. This is an opportunity for the public service to provide that leadership.
We do find and encourage that some private sector employers have actually taken the lead. Even though they are profit-driven, sometimes they may question how they can invest in the long-term growth of a company because we all know companies need their quarterly and annual results. We see that many good corporations in Canada have been able to invest because they see these employees as an investment in the future.
In the public service, the key is what self-identification tells us. It helps us identify the problem, and it can help us identify the barriers that exist. We know those barriers. Those are I think the issues that we need to address.
The Chair: What are the barriers?
Mr. Khan: First, in the government, we say we need to do strategic staffing. That is what we want to do. We do not want to be staffing just because someone has left and now we have to put someone in the acting position to fill that gap. The HR department is so busy that they cannot complete the whole process and they use a shortcut instead, an unadvertised process.
I think we must keep in mind that strategic staffing, long-term vision, staffing for positions that become vacant in the future and preparing employees so they can take over when employees retire is the key. That is what we need to do to make the public service a service of excellence.
All of these shortcut processes, the non-advertised processes, are not easy processes either. You must spend a lot of time. What happens is you spend a lot of time fighting emergencies as opposed to HR departments working hard to hire and to staff people who will be productive next year and in the years after that.
This is a rat race; we need to get out of it. We need to focus not on firefighting for today, but doing strategic staffing and dedicating resources so that we can build the future of the public service. That is where we need to focus.
Senator Poy: Mr. Natufe, did you say that self-identification was brought in because the existing situation was not working for visible minorities?
Mr. Natufe: No, it was brought in by those who framed the act as a way of bridging the gaps. Women do not have to self-identify as women, of course; we know that they are women. However, if you are an Aboriginal woman, a woman from another visible minority or a woman with a disability, the act requires that you self-identify.
It is voluntary; it is not mandatory. That is part of the problem now.
Senator Poy: The important thing is that hiring and promotion should be based on ability, not on the way one looks.
Mr. Natufe: I agree.
Senator Poy: How do we ensure that ability and affability are the only components?
Mr. Natufe: That is the main thesis of NCVM. We want to go back to the merit principle. We want merit to be the main determinant for every one of us. We want to have an equal opportunity to compete for jobs.
Senator Poy: We know that some organizations in the private sector are doing extremely well. They have hired many visible minorities because it is good business.
I do not understand why the government cannot do that because it is good for the government.
Mr. Natufe: We have told departments and PCO about the business case for employment equity in the Federal Public Service. We are a huge country, and we need expertise in science, technology, language and diplomacy in various parts of the world. You will find from your own research that Canadian companies fail when they go abroad to compete because they do not have people in their delegations who understand the country they are going to.
The business case is there. The Royal Bank recognizes that, as does the Bank of Montreal, the TD Bank and Bombardier. Why can the public service not recognize that?
Senator Martin: It is a pleasure to meet with and listen to such insightful information. As you said, a visible minority can sometimes become a visible majority. That is definitely the case in Vancouver. About 85 per cent of the students at my daughter's school are Asian or visible in colour. In a presentation at school, each student was asked to identify his or her heritage or culture, and the one Caucasian boy said, ``I'm just Canadian.''
I am concerned that with self-identification or focusing on visible minorities, at times it can be the reverse. However, if self-identification becomes an accepted standard question like date of birth, and if everyone is clear about their own heritage and background, it will be something that we can all talk about, whether we are multi-generational Canadian or of other heritages.
Your sons say, ``Why do we have to do this?'' I know my daughter would say the same, and I have felt that at times in my career path.
Have you done any studies of the young generation of public servants of different backgrounds asking them about barriers they have seen? Perhaps they have not personally felt them, but perhaps they have observed them with others.
When I say ``young,'' I mean younger than us. I refer to the second generation.
Mr. Natufe: We define young as below 35. We have not done that study, but it is a good idea that we may want to consider.
Catherine Kizito, Chief Administrative Officer, National Council of Visible Minorities in the Federal Public Service (NCVM): I am from Natural Resources Canada and was loaned to NCVM. We hear often from young visible minorities coming into the Federal Public Service that some of their colleagues think they were hired not on merit but because they are a visible minority. They talk about a quota system.
The young visible minority employees have found ways of dealing with this. For example, at NRCan we have a young professionals network that is not made up of visible minorities; everyone belongs to that group. They lobby differently. In addition, there is the issue of saying, ``I am not going to self-identify because I want to come into a job based on my merit.''
As Mr. Natufe was saying, how do we sell self-identification as not choosing one at the moment? Those are some of the issues.
Senator Peterson: Does the PSC share your vision for a centre of excellence in hiring practices?
Mr. Natufe: I do not understand the question.
The Chair: Mr. Khan indicated that we want the best and the brightest to serve Canadians. Senator Peterson wants to know whether the Public Service Commission shares that philosophy or ideology.
Mr. Natufe: I hope they do, because in our discussions with Ms. Barrados she made us believe that. The clerk has repeatedly stated that they want the best and the brightest Canadians in the Federal Public Service.
In their own report, they have identified visible minorities as the most educated group of Canadians. Therefore, our question for the clerk and Ms. Barrados is why would you exclude the brightest and the most educated from employment opportunities? They share the concept, but we do not see the result.
The Chair: I wish to thank you all for sharing your experiences, ideas and information with us.
Mr. Natufe, please send us any information and recommendations that you wish to share with us.
The Public Service Commission indicated that one in five was the target for visible minorities, and you say the present ratio is one in ten. We are trying to get away from anecdotal evidence and into research-based evidence.
For example, we spoke about how the banks employ. The statistics I have read indicate that banks are employing, but that they are employing tellers. Let us talk about the banks at their executive levels and see how reflective they are of Canadian society.
Mr. Natufe: In the Royal Bank, 24.5 per cent of senior managers are visible minorities.
The Chair: I think we can take each example and dissect the strengths and weaknesses. I would not want to leave the impression that the Public Service Commission has not been trying. I think you have stated that they are making an effort. We want to do better, a lot better.
Mr. Natufe: That is correct.
The Chair: That is why I am asking if you can provide us with information. You said the ratio of visible minorities is now one in ten.
Mr. Natufe: Yes.
The Chair: If you have some basis for those numbers, could you provide us with the research, surveys, questionnaires or other means by which how you have come to that assessment? We would also appreciate anything else you may provide that would strengthen the Public Service Commission to make it truly reflective of Canadians.
Mr. Natufe: We can do that. If you look at Annex 1 of our document, for example, you will see that the PCO does not have any visible minorities at the ``EX'' level. That is zero. They have 81 positions and there are no visible minorities. That will give you a picture of what it will be in various other departments.
We will provide you with that data.
The Chair: That would be helpful from your perspective.
Mr. Natufe: We will do that.
The Chair: I want to thank you again for coming this evening and sharing your perspectives and knowledge with us.
This committee selected and provided a report last June on the United Nations Human Rights Council. In particular, we are looking forward to the Universal Periodic Review to determine how that process enabled and assisted human rights in general and affected the Human Rights Council.
We have heard from witnesses and have had a debriefing from the representative of the government on Canada's time before the Human Rights Council in its Universal Periodic Review.
Our witnesses this evening are from the Canadian Coalition for the Rights of Children, the Social Rights Advocacy Centre and the Canadian Feminist Alliance for International Action. We are interested in hearing your constructive comments on the process of the Universal Periodic Review and the Human Rights Council in general. Some of you have testified previously before this committee. As we prepare another report, we hope to hear some positive recommendations for government on how to proceed in the future with the Human Rights Council. We will begin with opening statements, followed by questions and answers.
Kathy Vandergrift, Chair, Canadian Coalition for the Rights of Children: It is indeed a privilege to appear to discuss again the interface between how Canada implements the conventions and our role on the Human Rights Council.
When Canada was appointed to the Human Rights Council, it pledged to, ``Uphold the highest standards in promotion and protection of human rights.'' If we look at this UPR process in the light of that pledge, we have some conclusions to draw. Over 50 NGOs registered their concerns, and the common theme was the failure to meet minimum standards. Nations across the spectrum tabled similar concerns about the basics of implementation of human rights treaties.
One would expect that the session might lead to prompt action instead of continuing a posture that Canada is a leader and better than others. We have yet to hear one substantive proposal for improvement. My concern is that if Canada is to continue to be a leader in human rights, now is the time when Canada needs to step up to the plate and significantly improve how it is implementing international human rights treaties. With regard to the consultation with civil society organizations, let me add one point to what you heard from others at the last session.
I have read all the documentation before the NGO meeting presentations at the UPR session, documents afterward and the presentation to this committee. I could not find one change that had been made as a result of the consultations. It is hard to take the promise of more talk seriously. I would submit that it is time for some action. I would like to suggest three proposals for your consideration. They have impacts for your role as overseers of how this occurs in Canada as well as for those of us on the ground.
The first proposal would be to move to reform or replace the Continuing Committee of Officials on Human Rights as the leading body in Canada. It is obvious from the UPR process that the current structure does not work. Your committee came to that conclusion in 2007 in its report on children's rights, entitled Children: The Silenced Citizens. The government response stated that this committee did take its responsibility to implement children's rights seriously. The Canadian Coalition for the Rights of Children took that to heart, and we wrote them a letter with a simple request to tell us what they had done with the recommendations on children's rights received in 2003. What answer did we get? They would not tell us anything. They would not meet with us; trust us.
After considerable effort, we were finally given copies of old agendas that simply listed all the conventions. That was in 2008. Now, it is 2009. Canada's report on children's rights is overdue. It was due in January. There has been no consultation. We still do not know what was done with the recommendations received in 2003, some of which were repeats from 1995. This does not serve Canada's children well; it does not serve the Human Rights Council well; and it does not serve you well. A committee that meets infrequently in secret, refuses to tell anyone what it has done and refuses to meet with people affected by its decisions is a contradiction of the very essence of human rights and good government. Ending the secrecy and requiring public accountability will have a transforming effect on the whole system, and I would submit that it is essential for Canada to continue to be a leader.
The second proposal is that Canada's reports be based on outcomes for people. The current reports catalogue government programs, but they tell little about the situation of people they are supposed to help. Let me give one example: The one initiative for children cited in Canada's report to the UPR was the National Child Benefit. The program description sounded good; but what is the reality? In December, the same month in which the report was submitted, the National Council of Welfare released a detailed report on that same program, and the conclusions paint a different picture. Most of the families with children on welfare, composed of one parent and one child or families composed of two parents and two children, are worse off than they were 10 years ago.
The report went on to say, ``This was a big step backward in the fight against child poverty.'' This is not an NGO talking; this is a government advisory body talking. Yet, that was not reported at all in this overview of the situation of Canada's children.
This is the information you need to understand the impact of programs and policies. You need to know the truth about the situation of people, not public relations reports.
Officials continually tell us that federalism is the challenge, but I suggest to you that rights-based reporting of outcomes for affected peoples is part of the solution because it would provide useful information on outcomes for beneficiaries across the country. It would allow you to assess programs, to see if they are benefiting people and to make adjustments as needed.
The third major change I suggest is to move to a continuous improvement model for monitoring and implementation. That is preferable to the current approach, which is a defensive report once every five years and an adversarial relationship between government and civil society. If implementation is something being worked on regularly, with a sharing of information and a discussion of strategies, there is less need to be afraid of accountability and adopt a defensive posture. It would also lead to early response and more preventive approaches, which is consistent with human rights.
Again, I will just give you one quick example. In January, the House of Commons unanimously endorsed Jordan's principle: The common sense notion that the best interests of Aboriginal children should be given priority over jurisdictional disputes between federal and provincial governments. Jordan's principle says that if an Aboriginal child needs health care, the care will be provided, and then the officials will sort out payment, rather than the child falling through the cracks between federal and provincial services, as so often happens. Since then, the federal government was provided with solid evidence about discrimination against Aboriginal children in the provision of child welfare services in a complaint filed with the Canadian Human Rights Commission. Was Jordan's principle applied? No. The case is being put through the courts on jurisdictional and technical grounds, not the substantive merits of the case. The affected children will be adults before all the court challenges are over. This is definitely not in the best interests of children. Instead of taking a problem-solving approach, we took a jurisdictional dispute approach. A continuous improvement model would focus on resolving issues at the lowest level rather than escalating issues through lengthy and costly court processes.
I submit that changes in these three directions would percolate through the system and transform it into useful tools for implementing what Canada has adopted. If Canada wants to be a leader in human rights, it needs to show a start to substantive change before it appears again in June at the Human Rights Council.
Nancy Baroni, Program Director, Canadian Feminist Alliance for International Action (FAFIA): I would like to thank the chair and committee members for inviting me here tonight to speak to you on behalf of the Canadian Feminist Alliance for International Action, also known as FAFIA.
FAFIA is a dynamic coalition of over 75 Canadian women's equality-seeking organizations, and its mandate is to further women's equality in Canada through domestic implementation of its international human rights commitments.
As you are aware, the United Nations Human Rights Council under the Universal Periodic Review, recently assessed Canada's human rights record. The recommendations from this review have been presented to Canada. At the upcoming June 2009 session of the Human Rights Council, Canada will be asked to indicate publicly which of the recommendations that emerged during that review it is prepared to implement.
What happened at the UPR and what is happening with UPR process is not new, but it does provide Canada with a new opportunity. The recommendations are similar to what we saw with the CEDAW Review, Convention on the Elimination of all Forms of Discrimination against Women, but we hope that what will be different will be the implementation of recommendations.
United Nations treaty bodies have expressed consistent concerns about Canada's failure to uphold women's human rights. Canada has, for the most part, ignored these concerns.
FAFIA asserts that this review process and the recommendations put forward by the Human Rights Council present Canada with a key opportunity to implement domestic human rights mechanisms. This process marks a time for Canada to move beyond rhetoric.
Several recommendations made by the Human Rights Council speak specifically to the domestic implementation of the Convention on the Elimination of all Forms of Discrimination against Women in Canada. In 1981, Canada reviewed this convention, also known as CEDAW. Despite this commitment and ratification, Canadian governments have not adopted policies and laws in compliance with our international obligations under CEDAW, policies that are necessary to address social and economic inequality among women and girls, and particularly among the most vulnerable, including Aboriginal women, racialized women, women with disabilities and single mothers.
In October of 2008, Canada's compliance to this convention was reviewed by the UN CEDAW committee. The committee urged Canada, as it did during the 2003 and earlier reviews, to establish a mechanism to ensure ``accountability and the transparent, coherent and consistent implementation of the convention throughout its territory in which all levels of government can participate.''
In many cases, as outlined in the government's report to the CEDAW committee, many articles of the convention could not be implemented due to jurisdictional issues within the federation, as Ms. Vandergrift mentioned in her presentation. During Canada's review, the government consistently stood behind jurisdictional arguments when describing inaction or on specific articles of the convention. This is more so now, but it has happened at previous reviews with previous governments.
The position of the committee was clear during the review and in its recommendations issued to Canada in November 2008. The committee emphasized that the federal government must take into account its legal responsibility and leadership role in implementing the convention in all levels of government. This recommendation was later reiterated in the UPR recommendations. States reviewing Canada's human rights record called on the federal government to take further measures to ensure effective implementation of CEDAW at the federal, provincial and territorial levels, while paying particular attention to vulnerable groups, including Aboriginal women and girls.
The reporting for CEDAW is every four years. However, in an unprecedented move for Canada during the 2008 review, the CEDAW committee called on the Government of Canada to report back in one year on steps taken to address two main concerns that the committee had about Canada's lack of compliance of the CEDAW convention. These issues were the dire situation of missing and murdered Aboriginal women, and also the inadequacy of social assistance rates across Canada. We have no evidence that any steps have been taken to address these issues or that the government is even preparing a report for the committee to be presented this fall.
The UPR recommendations so clearly illustrate the Human Rights Council's serious concerns regarding poverty and Aboriginal women's human rights. FAFIA submits that Canada, by both government action and inaction, has failed to comply with its obligations to women's human rights. Whereas Canada has no national mechanism for monitoring or ensuring that Canadian governments comply with their treaty obligations, FAFIA recommends that the Government of Canada, with the governments of the provinces and territories, develop a coordinated and accountable process for monitoring implementation of Canada's international human rights obligations. This process should involve input and consultation with Aboriginal peoples and civil society.
As part of this process, there should be a high-level focal point for implementation of Canada's international obligations rooted in regular public reporting and transparency; ongoing engagement with civil society organizations, including women's organizations; public response to concluding observations from UN treaty body reviews; and other UN-level recommendations within one year of receipt.
The fact that women's organizations were not supported to participate in the UPR process meant that the Human Rights Council had to rely heavily on the work of the CEDAW committee. Again, many women's organizations were not supported to participate in the CEDAW process either.
The Government of Canada has an opportunity to implement human rights mechanisms domestically with every bill, policy decision, budget and treaty body review that takes place. Just days before the UPR, Budget 2009 was introduced with no mention of Aboriginal women's human rights, an anti-poverty strategy, the advancement of women's equality, or any mention of the advancement of women's equality. This was again another lost opportunity.
I respectfully implore this committee to bring recommendations put forward by the Human Rights Council to a parliamentary committee for review. Canada is under a tight deadline and must respond in June regarding which recommendations to implement.
I ask on behalf of FAFIA and our member organizations that this not be yet another lost opportunity to implement rights mechanisms and advance equality rights in Canada.
The Chair: Thank you. I would like to clarify that we are a committee of Parliament in the Senate. Therefore, are you recommending that another committee study it, or are you asking us to incorporate it into our study?
Ms. Baroni: Ideally, our recommendation is for this committee to study the UPR, as are you doing right now. However, we often recommend an all-party study be done in a House of Commons committee, which has a little bit of a different set-up.
The Chair: I think I made my point about the Senate committee, which is made up of parties, maybe not all parties.
Steve Estey, Chair, International Development Committee, Council of Canadians with Disabilities: Good evening. I think perhaps before I start I should explain about the computer here in front of me. People are probably wondering why I am the only person at this big table who has one. The reason is that I am deaf. I cannot hear what people are saying. I am reading the transcript as things are going along. There is also a bit of a delay with that, and I just ask you to understand.
On behalf of the Council of Canadians with Disabilities, CCD, a national human rights organization working for an inclusive and accessible Canada, I want to thank you for inviting us here to present today. We welcome the opportunity to discuss human rights and the Universal Periodic Review because the issues of 4 million Canadians who have disabilities are broad and overarching.
If we take a quick look at some statistics show that Canadians with disabilities are twice as likely to live in poverty as compared to other Canadians. Over two million adults with disabilities in Canada report lacking one or more supports required for a full participation in their community. At the same time, globally, the International Labour Office, ILO, reports an annual loss of worldwide GDP due to exclusion of people with disabilities in excess of 1.37 trillion U.S. dollars every year. So indeed, our issues are universal, and we are very happy to be here at this table.
As we well know, this Universal Periodic Review process is a new one, and our work here is to seek ways to make it a robust and useful process.
What is also new is the inclusion of people with disabilities at the table. Over the past few years, we people with disabilities have been increasingly invited to table our discussions on human rights issues. This is a very welcome development, and we have very high hopes.
People with disabilities have long faced challenges in our efforts to realize our basic human rights. The movement to include disability issues in the mainstream of human rights discourse is a huge step for us. We have long recognized that our basic human rights are not on the mainstream agenda, and we welcome the Universal Periodic Review process as one more opportunity to make our voices heard.
There are many specific disability issues, comments and recommendations that have emerged as part of this process, and I hope we have a chance later to discuss them in more detail.
The single key issue that we heard in discussions with Canadians all across the country, and particularly Canadians with disabilities in preparation for the UPR meetings in Geneva a few weeks ago relate back to this idea of the shifting view of disabilities, the shifting understanding of disability as a human rights issue.
Connecting back to this idea, as an increased sense, disability issues are human rights issues. What we heard often is that the single most important thing that Canadians with disabilities were seeking from this Universal Periodic Review process was a commitment from the Government of Canada to ratify swiftly the new Convention on the Rights of Persons with Disabilities.
The recognition of disability as a human rights issue has come to be symbolized by the CRPD and Canada's slow and somewhat mysterious ratification process is beginning to eat away at the tremendous goodwill that had developed over the course of the negotiations on the convention between 2002 and 2006. Canada signed the convention in March of 2007, and we are still in a process around ratification. When we talk to Canadians with disabilities about this, they consistently asked why it is taking so long.
We understand it needs some time, but over 50 countries around the world have ratified this convention. It has entered into force. China has ratified the convention, as well as many European countries, Australia and New Zealand. There is ample precedent.
Some states at the UPR meetings actually made recommendations calling on Canada to ratify quickly, and our community would look very favourably on a commitment to a firm timetable and to a transparent implementation process which of course would include recognition of the importance of the optional protocol in the treaty.
From the base of a new treaty, in connection with the ongoing work of the UPR, we are confident that further discussion about the specifics needed to realize the rights to Canadians with disabilities can evolve. Indeed, when we get to that point, CCD has developed a national action plan which broadly calls for new initiatives to increase access to disability related supports, new initiatives to address the poverty of people with disabilities and unemployment, and new initiatives to improve access and inclusion and full citizenship of Canadians with disabilities.
These fit very well into the many specific recommendations that have come up from the UPR process to date. Again, I hope we have opportunity later on to discuss them.
Bruce Porter, Executive Director, Social Rights Advocacy Centre: Honourable senators, it is a privilege for me to be here. Along with Leilani Farha who presented the last time you were dealing with the UPR, I had the privilege of coordinating, with some funding provided by Canadian Heritage, the series of five meetings you have heard about across the country on issues that civil society. During those meetings, NGOs and indigenous organizations identified the key human rights issues that needed to go before the Universal Periodic Review.
Leilani Farha, Alex Neve and I went to Geneva and presented the key issues that came out of those meetings. They are summarized in a paper that you now have before you in English, and very kindly the clerk was able to arrange for the translation into French after the chair generously offered that last time. We thank you very much for that. It is called The Universal Periodic Review of Canada: An overview of a select number of Canadian NGO concerns and recommendations.
When you have a chance to look at it, you will find it is an impressive document. I work in many different countries around social rights, poverty and homelessness. I was very energized and moved, in reconnecting with civil society in Canada, by the incredible commitment to human rights and social rights that exists in this country.
When I go to Geneva and deal with these issues in the UN, I cannot tell you how often colleagues from other organizations in the human rights community ask how it is that Canada has become such an opponent of social rights like the right to housing and the right to freedom from poverty and so on. It is such a shame.
The UN High Commissioner for Human Rights, Louise Arbour, spoke eloquently on the importance of social and economic rights. She fought hard for this amazing historic development in the last year of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights to allow a complaints procedure equivalent to civil and political rights. She described this historic achievement as ``human rights made whole.''
Whenever these kinds of issues come up at the UN, Canada's position is that while we certainly recognize that poverty and homelessness are serious issues, Canada does not support these as full human rights for which people should have effective remedies, either internationally through a complaints mechanism or domestically through access to human rights commissions, courts or ombudspersons. In Canada we have 300,000 homeless people, people who are experiencing hunger and deprivation. These are widely recognized as violations of human rights, and these people have no place to go to hold governments to account for their obligations under international human rights law.
When we travelled from city to city, our experience was the same as that of the Canadian Human Rights Act Review Panel in 2000. You may remember that Chief Justice La Forest was appointed by the Minister of Justice to chair a panel to look at what changes needed to be made to the Canadian Human Rights Act.
The panel reported that when they went across the country they heard more about poverty than about any other single issue. Canadians see poverty and homelessness as human rights issues. The gap between the way our governments treats these issues and the way people see them has become quite a serious matter for Canada internationally.
Canada's position with respect to the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights is that it is up to Canada to decide whether homeless people should have any place to seek a remedy. When the UN Special Rapporteur on the right to adequate housing was here recently and suggested that the right to housing needs to be properly protected in Canadian law and Canadian human rights institutions, Canada responded negatively, saying, no, it is within our margin of discretion to decide whether or how to protect the right to adequate housing.
The Universal Periodic Review is a critical opportunity for us to review the way in which we see these critical rights. You have heard from Ms. Vandergrift, Mr. Estey and Ms. Peckford how poverty is the critical issue for women, people with disabilities and children in Canada. What does it mean for Canada to recognize this as a human rights issue and to respond constructively and effectively to the recommendations that emerge from the Universal Periodic Review?
Some of the key recommendations that I would highlight are the adoption and implementation of an effective national strategy to eliminate poverty. The key to the recommendation that you will see in the Universal Periodic Review report is not simply that it is to be a strategy, but that it is to be a strategy based on social and economic rights, a strategy to treat housing, homelessness, poverty and hunger within a human rights framework. That means accountability mechanisms. It means that you have measurable goals and timetables and that the government holds itself accountable to people who can identify problems and go some place to get a hearing and have these problems remedied.
It is a reframing of our notion of how we approach these issues, and it is the only way we will again achieve a leadership role for Canada internationally. There is quite a discrepancy now between Canada's position and the emerging consensus internationally. Whether on disability issues, the optional protocol, or the right to water or food, Canada has become quite regressive in fighting against any mechanism to hold governments accountable to these rights.
There are clear recommendations in the Universal Periodic Review that Canada has to either reject or accept and develop an implementation plan. It would be incredibly important to adopt a strategy for eliminating poverty and adopt a national housing strategy, but part of that has to be the adoption of a human rights framework. It has to respond to the recommendations to implement a human rights framework.
All of this, of course, relates back to what Ms. Vandergrift was pointing out, that is, the implementation gap. The UN Human Rights Committee said, for the first time to any country, that to not take positive measures to address homelessness in a country with a cold climate and with the resources to deal with it, considering the severe health consequences of homelessness here, is a violation of the right to life.
We have to have mechanisms that prompt governments to action after a human rights finding of that magnitude, and these have to exist domestically. We cannot rely on a five-year process, going to treaty monitoring bodies or the Universal Periodic Review process to remedy these problems.
Many of the recommendations, particularly the ones from Portugal, talk about an overall plan to review the status of social and economic rights in Canada and to ensure access to hearings and to effective remedies. That overall review has to be part of the strategy to come back to these issues and reconceive of them as critical human rights issues. We have to reconnect the sense of what human rights is all about that we got from civil society when we travelled across Canada with the position that Canada is advancing internationally. We have to reconnect so that we can once again hold our head high internationally and say that Canada believes in the broad range of human rights. Those rights include the right to housing; the right to dignity; the right to security in all of its manifestations, whether it involves issues of housing, homelessness and access to health care; or whether it involves respecting more traditional civil and political rights. These are all part of the UN human rights system and Canada has to be prepared domestically to start to repair some of the damage that has been done in the last few years with respect to those human rights.
Senator Jaffer: Ms. Vandergrift, when I was the Special Envoy to the Sudan, you were a great support to me. I am sorry you are not continuing in that work now but rather are doing this work.
This committee was given a chart by either the Department of Justice or the Department of Heritage. From it, I see that the Continuing Committee reports to the core departments.
Ms. Vandergrift, you made some reference to the Continuing Committee. You said you do not want the Continuing Committee. Is that because of the makeup of the committee, because of its secrecy or perhaps because of its decision- making power? What are the challenges of the Continuing Committee?
Ms. Vandergrift: I will try to clarify that.
The reports all refer to the Continuing Committee as the final point of authority for implementing and preparing the next report. That is why we are focused on it. This has nothing to do with the individuals involved.
The committee meets maybe twice a year, maybe not. Since some of us pushed, including through the Access to Information Act, we now get old agendas, which are just a list of all the conventions, so that is not very helpful. They will not tell us what they have done, even with recommendations from previous reviews.
If they cannot have a better mandate as officials, then do not locate the responsibility to report there.
It has to be located somewhere else, where someone can at least disclose publicly what has happened to the recommendations Canada received five years ago. For children, five years is a long time.
It is not the individual people for sure. However, if that is not the wrong location, give them a mandate to talk to us or tell us what they have done.
After the excellent report this committee did on children's rights, we thought we would try to make the system work. We started writing the ministers responsible. We keep getting back responses that we cannot tell you or we cannot talk to you. That is not a way to go about implementing rights. If you think that is the right place for the final authority, I am not sure it is. If it is, they need to have a mandate for accountability and transparency.
Senator Jaffer: Where do you think the responsibility should be? Who should be making those decisions besides the ministers?
Ms. Vandergrift: There has not been a meeting of federal and provincial ministers on human rights for a long time. If you are to keep saying federalism is the problem, we need that. I would simply like to see the federal government step up to the plate and do a number of things.
In the area of children's rights, if they did the outcome reporting in the way I discussed to show discrepancies across provinces and what is happening, you would see change start to happen. I can tell you what we are seeing at the provincial level where they have effective children's advocates. I just received an email message from Saskatchewan where the children's advocate did an outcome-based report and the government is promising significant change. In New Brunswick, the children's advocate did an outcome-based report about children in care and significant change is starting to happen. It is the same in British Columbia. Those are three provinces where children's advocates do outcome-based reports. They start to make change happen, because the reports expose the reality. That is what the federal reports should do.
I will let you speak to the usefulness of the reports and let you decide if the programs actually benefit the people they are supposed to benefit. I submit that if the federal government did those outcome-based reports starting with children, you would see change happen.
Senator Jaffer: I hear you.
All of you spoke about the issue of Aboriginal children, which is a federal government responsibility. If there are only provincial reports, perhaps Aboriginal children would fall through the gaps again. Am I correct that this would be a federal government responsibility?
Ms. Vandergrift: The issue with Aboriginal children is one of the reasons we have been a strong advocate for a national children's commissioner who might have a mandate, particularly, to look at children who fall under federal responsibility.
In the case of Aboriginal children, the sad thing is that you now have a report before the federal government that documents some pretty serious and significant issues. It is not being addressed.
All parties in Parliament passed a resolution saying they would put the best interests of Aboriginal children first. That is where we have trouble; we see such significant contradictions. I read the transcript of the last meeting where the officials stood here and still pretend that Canada is a leader and doing a good job compared to everyone else. I think they need to be asked some very hard questions. Why are they taking this approach on Aboriginal children's issues? Who is holding them accountable? Maybe it has to be our elected officials given more resources than you probably have as a committee. I am not sure. However, they have to be held accountable somewhere. Right now, it is a joke.
Senator Jaffer: You and others also spoke about the treaty processes, transparency and accountability. In our report, I would like it if we were able to say this is what we mean by transparency. Mr. Porter spoke a little about what was meant by accountability. Can you please expand on that?
Ms. Vandergrift: A good place to start is when you get the recommendations from a review. For example, we tried. Let us deal constructively with the recommendations from 2003 before we receive the next report, which was supposed to be due in January 2009.
Admittedly, the government may have good reasons to not implement a few of them. Can you not tell us that? Then we could talk about it. If that is the case, maybe we might agree. What are you doing with the recommendations you received in 2003?
Those recommendations say you need to look at the situation across the country. One of them related to homelessness. Canada did not acknowledge in its report that there were homeless children. Surely, we could document and begin to look at that. We do not need to wait five years. I expect we will still see the same report.
You could do a number of those things. Start when you get those recommendations and work with the communities. That way, when you reach the next five-year period, you can say where you are within the notion of progressive realization.
We are not saying you will solve everything in five years, obviously. However, we could begin to show benchmarks. Now, we simply go around in circles.
Senator Jaffer: Mr. Porter, you spoke eloquently about housing. If I understand you correctly, you were talking in the context of human rights of a right to housing, especially in a prosperous country like ours. There are some Scandinavian countries, such as Finland, that have a right to housing as a human right. The argument against this will be the resources necessary, especially at this time. How would you defend that?
Mr. Porter: There has been increasing recognition of the importance of recognizing these as rights which governments can be held accountable to in some meaningful way whether courts or human rights institutions, et cetera, may become involved.
It is important to realize that the international standard is not that the government has to provide everyone with adequate housing. Countries like South Africa have a very large homelessness problem. They have recognized the right to housing and they have some of the leading jurisprudence on the issue.
In the wording of the new complaint mechanism to the International Covenant on Economic, Social and Cultural Rights, the standard of review was taken from an important decision on the right to housing from South Africa. Essentially, that standard is what they call ``reasonableness'': The government needs to have taken reasonable measures within the available resources to implement the right to adequate housing.
There is nothing that prevents governments within this framework from saying they have an HIV-AIDS crisis or the needs of people in health care, housing, disability, et cetera. There are many competing needs and this has to be recognized. This will be heard by the Committee on Economic, Social and Cultural Rights when it hears complaints and by courts around the world.
I think a right has to mean something to the person who holds it. At the moment, the fact that Canada has ratified the Covenant on Economic, Social and Cultural Rights and recognized that housing is a fundamental human right does not mean anything to the 300,000 homeless people in Canada.
The standard is not that you have to be able to go to court. Under international law, there should be an effective remedy — a place to go — whether it is a human rights tribunal, an administrative body or a tribunal that hears selective, systemic complaints.
However, on all of these fronts, all we are getting from the Government of Canada is opposition. If someone goes to court and argues it is a component of the right to security of the person or the right to life, the government says no, it is not covered and courts should not get involved.
The panel recommended the Human Rights Commission have the mandate to consider issues like the right to adequate housing within its mandate and the mandate to recognize discrimination against poor people in terms of social conditions; nothing has been done.
We have not seen anything to try to give people any place to go where they might be able to promote governments to take action on these issues. It is the same kind of thing Ms. Vandergrift was talking about in relation to the treaty monitoring bodies.
We have simply had nothing. It would be useful even if it was a children's advocate responding effectively in a human rights framework by hearing the problems, identifying the solution and having the ear of government in the same way the Auditor General has the ear of government on financial matters. Why would we not have people with that kind of authority and review mandate to promote the notion that we can and should hold our governments accountable on these issues? If you do not have a human rights framework these days, it tends to drop off the map.
Senator Lovelace Nicholas: I believe that Ms. Vandergrift mentioned that First Nations children are poorer than non-native children. Why do you think the government is not stepping up to the plate? Would you care to explain?
Ms. Vandergrift: We are here to talk about human rights mechanisms in general so we probably could have a whole session on that one. I was using as illustrative a specific human rights aspect of the issue: Solid documentation shows discrimination in the provision of child welfare services. That documentation is largely not contested by the department.
The larger issue of Aboriginals and non-Aboriginals is a big question but there is a quite comparable situation when you can show the amount of resources allocated to an Aboriginal child in child welfare compared to the resources allocated to a non-Aboriginal child in child welfare. It is a clear case of discrimination. This is something that could be looked at and remedied if that is the case.
The sad part is that we have more Aboriginal children in care today than we had in residential schools, for which we just apologized. These are not Aboriginal children in care because of abuse. It is because of neglect. When non- Aboriginal children come into child welfare from neglect, in most cases resources are given to the family, but that does not happen with Aboriginal children.
We have a clear analysis and there is good documentation. If the government thinks that the documentation is wrong, then it should step up to the table and say it is wrong. Do not throw it into the courts for another 10 years after saying it believes Jordan's principle that the best interests of Aboriginal children should be the priority of the government. That is so frustrating. Let us resolve it.
Senator Lovelace Nicholas: I agree with you that it is very frustrating. I live in a First Nations community where some children go to school without any breakfast. It is about time for the government to step up to the plate.
Ms. Vandergrift: I agree.
Senator Poy: All of the witnesses have mentioned the implementation gap, which is a violation of the right to life. We have heard about how the government has procrastinated in showing to you, or not shown at all, the reports of what they are doing. Is it lethargy or simple opposition to doing anything?
Mr. Porter: It is always fun to speculate. There are a number of factors that involve not only the elected government but also the bureaucracy. Those of us working in the human rights area need to do a better job of explaining the value added of this kind of human rights framework.
Senator Poy: They must know that.
Mr. Porter: I find that when I go to the UN and see Canada being reviewed, I wish everyone could be there. It is a moving experience to hear your country being held to account against reasonable standards and to hear the shock expressed when they look at Canada's resources and the data about growing social and economic inequality and homelessness in the midst of the greatest economic growth, until the last year.
There is a way in which we have to integrate better this international perspective with the domestic policy-making. For example, on the question of whether Canada should ratify the new complaint mechanism for the Covenant on Economic, Social and Cultural Rights, a consultation took place among deputy ministers. If you are the Deputy Minister of Health, for example, and someone asks you what you think of the idea that all of your decisions about health care could be reviewed by some committee in Geneva that does not understand Canada Canada's health care system, you would not think it a good idea. If you understood how bringing in a human rights framework has proven to be a valuable way of ensuring that health care responds to emerging needs and that it is not micromanaging but rather looking at the outcomes in the way that Ms. Vandergrift described in respect of children, then you would have a different answer. Some of the people that went from the Canadian government to the Universal Periodic Review found the entire process more meaningful than they expected. They can try to sell it within the bureaucracy.
Similarly, we need to do a better job of integrating our international promotion of human rights. We tend to think of it as a problem elsewhere. We have to become a bit more humble and realize that if we are asking other countries to sign onto conventions so that they can be criticized for violating civil and political rights, then we have to take it seriously when the international community asks whether we could do more about homelessness and hunger in Canada than we are doing. We have to take that seriously and show leadership. It is part of the human rights accountability internationally. We need to show leadership in more ways than simply telling other countries what to do. We need to show leadership in being self-critical.
Ms. Vandergrift: On another dimension to that, in the last 10 years in Canada, some of the discourse around human rights has become more narrowly focused on specific issues. Perhaps that is why social and economic aspects of rights have lagged so far behind. We have not thought through as much about what progressive realization means. If they are deemed entitlements such that people will come and make an absolute claim, then they might sound fearful.
We have had a gap in our human rights discourse, and your committee might consider addressing it by raising that aspect of human rights.
Senator Poy: You are saying that historically, we have that problem with the Canadian bureaucracy and the government?
Ms. Baroni: If I may add, you were talking about lethargy and an unwillingness to act. In looking at this table in consideration of the recommendations, I see that women are grouped with violence. Women's equality rights are grouped with violence in the Department of Justice and if you look across, CEDAW would touch Aboriginal peoples, Aboriginal rights, trafficking and sexual exploitation. It goes across the board. Implementing women's human rights cannot be put into a separate silo, as you know. This is really lacking. I see that someone wrote in, ``gender analysis'' and ``where is status of women?''
Senator Poy: We noticed that too when we were given this. It is extremely narrow.
Mr. Estey, you mentioned that there is a shifting idea of disability. Can you expand on that, please, to give us a better understanding?
Mr. Estey: Certainly. Thanks for the question but before I respond, with regard to your previous question about lethargy and the bureaucracy, I want to share with you a relevant experience.
I was very involved with the development of the new Convention on the Rights of Persons with Disabilities. I sat as an adviser to the Canadian government delegation for four years at the UN meetings through the whole development of the convention. There are a number of ways that I might choose to characterize the engagement of the bureaucracy but lethargic is not one of them. They are very engaged. Many Canadian bureaucrats and many people who are involved in the development and elaboration of Aboriginal treaties feel strongly about the strength and the value of the Canadian contribution to this process.
It is somewhat perplexing to me to have gone through that process and seen the high esteem in which Canada is held in those negotiations and seen the solid contribution that the Canadian delegation makes over and over again in the development of these things, on the one hand, and then to see the other talk about implementation and so on. Something is not connecting there. I do not know what the answer is to that, but I just wanted to say to you that I have seen the other side of this, and I think it is important that we understand that and recognize it.
In terms of a shifting understanding of disability, thank you for the question. In the Convention on the Rights of Persons with Disabilities and all of the work that has gone into that, people constantly talk about a paradigm shift in the way that we understand disability issues. Candidly, if we look historically at the situation of people with disabilities, we are seen to be dependent people who need to have assistance, who need to have a hand up, who need to have special this, special that, and all kinds of things. The value of a convention that talks squarely about human rights as they apply to people with disabilities is to say: No more. These are not special rights. These are not special things. These are simply things that human beings need.
Having a disability is part of the continuum of life experience. Some people are deaf; some people are not. Some people wear glasses; some people do not. There is an arbitrary distinction. At some point, your deafness is no longer able to be accommodated with a hearing aid, so all of a sudden you have a disability, but does that mean all of a sudden you do not have the same rights that you had before you were able to use a hearing aid?
The conceptualization, the way we understand disabilities, is what I am trying to get at here. It is not about the special needs that we have; it is about the fact that we are all human beings together, and some of us realize and experience our human rights in ways that are slightly at the end of a continuum, but that does not mean for a second that we have any less right to those things.
When we begin to understand that and recognize it and legislate around it and sign international treaties around it, then we begin to change the way that we understand disability and, I venture to say, we begin to change the way that disabled people understand their own situation. Really, that is a big part of the issue here, is it not? I need, as a person with a disability, to see that I have the right to participate. Once I see that I have that right, I begin to act as though I have that right. However, if I come from a history and a background where I do not think I have the right to participate in an education because I am deaf or because I am blind or whatever, then it is very easy to push me off to the side, to marginalize me and so on.
The value of the convention and the value of the work that we do there is to recognize that we are all the same, and that is what we mean when we talk about a paradigm shift. It is not a question of us, them, able-bodied people or disabled people. We are all the same, and we are just simply trying to live our lives. That is what I meant by that.
Senator Poy: Do you think that signing onto the convention will really make a difference? We have heard the other three panellists say that we have signed onto many things and nothing is happening.
Mr. Estey: Sure, I do. I get asked that question more by disabled people than I do by senators, to tell you the truth. They look at me and they say, ``Steve, why would we bother about that? We can't get on the bloody bus. We can't get into school, so why do I care about a convention on the rights of people with disabilities?'' Care about it because social change is a long-term process. It is not about what I could not do last Tuesday that I can do today. It is about what my grandfather could not do that I might be able to do now. People with disabilities are beginning to come into our own, not just in Canada but around the world. The convention is a part of that process. It is not a panacea. It will not change everything, and it will certainly not happen overnight.
We did a consultation around the convention a few years ago, and one of the senior lawyers from the Department of Foreign Affairs came and talked about international human rights law. That question about what good is a convention was put to him. He talked about international human rights law, and he compared it, in a most Canadian way, to a glacier. He talked about glacial retreat. You think about the fact that 10,000 or 5,000 years ago, David Suzuki might say two and a half years ago, glaciers were here, and they moved back. They retreat slowly, and you cannot actually see the retreating, but you can see the massive impact that is left behind when they move back.
International human rights law, the Convention on the Rights of Persons with Disabilities is like a glacier. It is slow, it is painful, and it will not change things quickly at all, but it is part of inevitable change. I think it tremendously important that Canada ratify this convention, and I think it tremendously important that Canada do so quickly.
Senator Poy: Thank you very much. I guess you are a believer.
Senator Nancy Ruth: Following on that, Mr. Estey, what are the factors that you think make the government reluctant to ratify your convention quickly?
Mr. Estey: My colleagues have talked about transparency and a process. We have been trying to get our heads around that as a disability community. Why is there a slowness around ratification? Canada signed the convention when it opened for signature in March of 2007. At that time, the Canadian government said, ``We need to engage in a process of consultation with the provinces and with government departments and so on to ensure that we can meet our obligations.'' These are not new words to anyone around the table. The point was that we recognized that there would be a consultation process.
I told you I was an adviser on the Canadian government delegation. I went to all of the meetings, and I sat in with the Canadian officials. Unless they met secretly behind my back, I was there for all of the meetings. I say that facetiously, but I was there, but all of a sudden, when we moved from the negotiation around the text where there seemed to be some import or value in having a disability expert into the intergovernmental discussions, we moved from a situation where I was meeting and dining with this group of colleagues over the course of four years to a situation where I could not get them to return emails from me. I am not sure what that was all about. I am still not sure what that was all about. Certainly, I understand that there needs to be discussion within government. I would not want to foreclose that at all. However, it does not seem to me that there is much advantage to turning back on all of the goodwill that had been built up in terms of the discussion and consultation and collaboration with the community. We certainly understand that it will take some time. I think it is pretty likely that very soon the convention will be ratified, but I do not know any more about that than anyone else around the table. It is all shrouded in mystery. I am not sure I am really responding to your question except to say I am not sure of the answer.
Senator Nancy Ruth: Is this others' experiences when other conventions were coming up for ratification?
When you tell your story, I think of the moratorium on section 15 of the Charter, but at least it was signed. Then you had a moratorium for three years and then you got it. This is not even signed.
Is the kind of process that Mr. Estey described common in the process of ratifying other conventions? Does ratification happen first and then they deal with interprovincial stuff? This is all about money, right; how much will it cost us if we give them a convention, they can sue against something else?
Ms. Vandergrift: In the case of the Convention on the Rights of the Child, ratification did happen quite quickly. It has been 20 years since then. It was ratified quite quickly; it is the most ratified convention, I think. It was also a different time period. It was post-war and there was a lot of optimism. We are in a different time now. It was ratified quite quickly but implementation has been exceedingly slow. There is probably a bit different trajectory to each one.
I still think there is value in having the convention so I am glad Canada ratified it. Let us move on with implementation.
Mr. Porter: The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights is the other major ratification issue — I should mention the other one around the Convention on the Rights of Persons with Disabilities. It is the optional protocol to the convention.
Part of the paradigm shift that Mr. Estey was describing was evidenced in the fact that the convention and a complaints mechanism under an optional protocol were adopted together. They really should be seen as a package because it does not make sense to adopt a convention based on this new notion of the participatory rights of persons with disabilities and not ratify the optional protocol to allow people with disabilities to have a voice in situations where they have been denied any domestic remedy.
With the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, there are different relationships with constituencies around different areas of human rights. Some are more positive. For some reason, the relationship with poor people and trying to promote their economic and social rights and their appearance before the committee has been much more adversarial. I worry about that because part of the whole new model in all of these areas has to be a more collaborative, constructive relationship between the rights holders and their governments, so that they start to work together to implement rights rather than seeing it as an oppositional thing.
With the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, there was a consultation a number of years ago. Unfortunately, it has been a matter that government decides without really consulting with the groups that would reap the benefits.
Senator Nancy Ruth: I know many of us around this table are interested in outcomes and the measurement of outcomes, too, and remain as frustrated perhaps.
One of our jobs as senators is to hold governments accountable. It is supposed to be part of our task and that is why we have you here and we will try to use your testimony back against those it needs to be.
Can you four think of other things that we, as senators, could do to push ratification, measurement of outcomes, reinstatement of international documents on government websites or any number of things? Poverty is a bit big, so possibly something a little smaller that might be manageable.
Ms. Baroni: With regards to what senators can do, I have a question that goes back to the comments you made after I was speaking about the parliamentary committee. We recommended that someone actually look at the recommendations coming out of the UPR and how they could be implemented, if Canada should be signing on, opening up the process — opening it up to the a parliamentary committee. Right now who, at the end of the day, decides which recommendations Canada will implement?
Right now, we have looked at so many recommendations that have come and gone and have done communications pieces on new CEDA recommendations. It is an easy editing job because nothing is really happening. My comment about the parliamentary committee, be it Senate or House of Commons, it is more so about having a body to specifically look at the UPR recommendations, how they can be implemented, what can be implemented and what can be done, much as what Ms. Vandergrift mentioned concerning the accountability and transparency of the conventions.
As far as holding them to account, I am at a loss, beyond what is being done.
Senator Nancy Ruth: You read last week's testimony of bafflegab.
Ms. Baroni: Yes.
Ms. Vandergrift: This committee did a good report on the rights of children in 2007. In 2008, you received a totally inadequate response from the government. I suggested at that time this committee call the officials back. I think an election and other things got in the way. There would be nothing wrong with this committee calling them back now and asking where that report is that was due in January. What happened with the 2003 recommendations? What has happened with the recommendations this committee made?
We will give you good information to use because the government's response was totally inadequate. This Senate committee spent three years, did a very good job and heard from 300 people across the country. There are people who are interested.
They just ``dead-ended'' it. It does not need to hit a dead end. There is a good reason to call them back. They are four months behind in issuing a report. They have never told us what they have done with the 2003 recommendations. They have not involved us.
The Chair: For the record, I should indicate that this committee has sought to continue that order and that we will call back the officials and follow up with that report.
Ms. Vandergrift: Let us know.
The Chair: It is not a dormant issue. It is an active issue but you are quite right: On Parliament Hill, things like elections do delay things. We are not forgetting that nor accepting that answer; it is an ongoing scrutiny we will have.
Senator Martin: Mr. Estey, I appreciate you commenting on the fact of Canada being at the table in the development of the document and that, on the world stage, Canada performs well and that we are highly regarded. In terms of the implementation of the ratification, you are wondering why there is a gap. It was nice to hear the positive feedback.
In terms of this report, I understand we have to be critical and look at what we are not doing and what we can do better. I guess I am wondering, when we talk about national strategies — all these recommendations look at a national approach — there is great expectation from people to look at the federal government to present, create or implement national strategies. I am not saying that we should not because, in many cases, the leadership has to be there.
However, I am also coming from the classroom. I was a teacher of 21 years. I am looking at the community. I have been a part of non-profit for a number of years and over the past few years, I have seen a lot of good work being done by people on the ground. I have seen community groups with funding from government or in partnership with provinces, and the people on the ground are the most in tune with what is happening. I see a lot of good work being done. My husband works in an alternate school with children youth at risk. The number of liaisons that work for one child can be one to 10 or 12 adults. I see a lot of support for these kids in certain school districts. That is not to say that happens across Canada, which is such a large country.
What would be your opinion on these recommendations perhaps being reorganized or re-examined? What would be some national strategies that would be the best for certain recommendations and others that would perhaps be best handled by the provinces or the regions? We do live in such a large country, and I think any time we try to look at national strategies, the process takes so much time.
I was involved in ``open-skies'' discussions; and the process of bringing people to the table, anything where you are dealing on a national level or international level, takes a lot of time.
I understand the urgency, and I absolutely agree that, as Canadians, we must lead. I do not know if my question has come through clearly, but it was a huge document, and in looking at all these recommendations, they all seem like priorities, so where do we begin? I am looking at national, provincial and regional. If the question did come through in there, I thank you for understanding.
The Chair: I think it did come through.
Ms. Vandergrift: When it comes to the rights of children, it starts from the home and on out, right? The government has an enabling role, and that moves down.
As a good example, we recently had a conference looking at best interests of children and how to implement that in Canada. We had representatives from all those areas together. That is the way to look at this issue. Then we can look at what we can do at different levels.
There were many teachers there, along with lawyers and professionals in child welfare services. Those kinds of fora can help; then we do take pieces away. We are a country that learns by good practices in one place or another.
I should correct my previous statement. Saskatchewan has a very good report out, not Manitoba.
The Chair: I will tell Mr. Bernstein.
Ms. Vandergrift: New Brunswick also has a very good report. If those two provinces are showing a way, perhaps we can replicate that elsewhere.
Canada has provided good international leadership on the rights of children and I want to recognize that, too. I worked internationally and that is where my first love is, working with children in armed conflict; but I became aware that unless we did a better job at home, we would lose our credibility. We do provide good leadership but we need to bring the two together.
Mr. Estey: Like you, when I looked at the report and all those recommendations, I was a bit overwhelmed. I did not know where to start or where to end. However, as I started out saying, for people with disabilities, it is an important step to be at this table. To begin with understanding our issues as human rights issues is an extremely significant thing.
If you are looking for one specific thing to do, then as I tried to make clear, look at the Convention on the Rights of Persons with Disabilities, ratify it and begin to implement it. It is a process; it is a direction that we take.
We are not going to address all of the recommendations that come out of the Universal Periodic Review at this table or in the next two months, but we can set directions. We can say this is how we want to proceed. We say how we want to proceed is we want to ratify our international treaty obligations. We want to begin to deal with disability issues in that framework. I think that is a tremendous step forward.
Mr. Porter: I think the question came through very clearly and it is a really fundamental question that comes out of the UPR. A number of the states we met with raised the question of federalism. They, and I think we, need to see federalism as a really important opportunity to implement human rights as opposed to just an obstacle.
If you look at the recommendation and remarks from the United Kingdom, you will see a nice framing of how Canada needs not to be making or seeing federalism as an obstacle, but rather as a vehicle for implementing human rights.
When I talk about a national strategy around housing or poverty, I do not mean the federal government will be even playing the primary role eventually. However, it is the federal government that ratifies the treaties and appears usually in Geneva. It is much better to have the provinces there and we do need a lot more provincial engagement with this. That is one of the critical issues that come out of the UPR.
However, the federal government can exercise real leadership. For example, one of the big concerns that did not get reflected a lot in the UPR, but was key to the NGOs across the country, was the growing inadequacy of welfare rates leading to hunger and homelessness. The federal government could say that is a provincial responsibility, or it could respond to the concerns from treaty monitoring bodies about that and take a real leadership role. The federal government could take some of the information and the data from the National Council of Welfare and start to work with the provinces and figure out how to meet, collaboratively and together, our international human rights obligations.
Instead of coming in with the big stick and saying, these are national standards that the federal government will impose on you and getting into jurisdictional squabbles, there is a new model saying these are international human rights standards to which we are jointly accountable, more in the model of section 36 of the Constitution. Around human rights, we need a kind of Jordan's principle in general, that we should never be letting people's human rights fall through the cracks because of jurisdictional squabbling.
The point is not it is your fault or your fault; it is how to work together in a federal state to implement our human rights responsibilities and to govern according to our fundamental Canadian values. That is the challenge. International human rights and the UPR provide new opportunities for the federal government to say we are not taking over the jurisdiction here, but we will exercise some leadership in order to fulfil our international responsibilities.
Ms. Baroni: As I mentioned during my talk about the jurisdictional issues, it has come up — especially with the social assistance issue with rates being adequate across the board. We have looked at how transfers to provinces can be tied to international standards of human rights, international standards of adequacy, ensuring that people's rights are met. That is tied to transfers going to the provinces. That is a thought.
In addition, a leadership role that the federal government can take, especially in this process, is the monitoring process. The federal government could ensure a national mechanism in place where rights are recognized, where people can go if their rights are not being met. Canada signed on to this treaty; what can I do at this point? It is much like the general Jordan's principle to have that in place. At least Canadians can have a place to go to say their rights are not being met and then perhaps look at ways to remedy that.
Currently, the coordinating committee that is in place has a really broad mandate. No one, as far as I know, is looking at the recommendations I mentioned earlier. No one is looking at the UPR recommendation as something that is doable — yes, we can implement this; these are the steps we can take. Nobody is looking at that, except for perhaps some bureaucrats from Justice or Heritage. Maybe Mr. Porter has heard of people who are actually looking at it recommendation by recommendation as to how to move forward with this.
As far as I understand, the Continuing Committee is largely a communicative body and not so much an analysis body that looks at the recommendations and how to implement them.
Senator Jaffer: We have a chart that says, for example, on women and violence, Justice is looking after recommendations 27 and 33 to 38. Each recommendation is assigned to a department.
Ms. Baroni: Bureaucrats are considering them.
Senator Jaffer: That is right.
Senator Peterson: While the discussion goes on, it appears to me that the stumbling block is financial. It is not a lack of caring because you said yourself there has been all-party agreement that we should do something, and nothing happens — lots of talk and no action.
Has there been any effort to try to quantify what the costs would be to move forward in some of these areas? Is that the proper thing to do? Is the fear of the unknown putting it back into jurisdictional disputes — not wanting to face the reality of dealing with the issue head on?
We are certainly doing it with the Aboriginal people in specific and comprehensive land claims because it goes on every five years. They review it again and talk about the same issues.
Are we running into the same thing here?
Ms. Vandergrift: You can speak to the others as well. Some of it is financial, but what puzzles me also is good research is coming out of the social determinants of health that will tell you it is a good financial investment to be upfront, and, of course, that starts with children. We have had those studies, and we have brought forward that data. The Head Start Program for young children from less advantaged circumstances has documented and proven a return six times on the investment. That has been well documented. Nobody doubts it any more. Yet, we still do not see a willingness to put that investment there.
We can do more of that; we can try to quantify and show the cost-benefit of it. Somehow that is not bringing us either to the actions. It is acknowledged that it is beneficial and cost-effective to deal with some of these things early, and that is why we are particularly interested in children's situations.
That is where we get a little perplexed because we have tried putting some of those dollar figures there. It is an immediate dollar now, but the return on investment is great.
Senator Peterson: I agree that you have to make investments to get returns, but how big is that investment? Are we talking billions, hundreds of millions? How big is the number? Something must be scaring someone because they all agree that it has to be addressed, but nothing happens. I do not know whether it is such a large number that they shy away from it. Do you then narrow it down and work it in smaller modules to get it moving?
Ms. Vandergrift: It is not just numbers. either. One thing that bothers me about the reports is it tends to say that we spend a billion here, a billion here and a billion there.
The value of the rights-based outcome reports is you find out whether people actually benefited from it because sometimes we are spending money and it is not necessarily benefiting the outcome. That is the value of the rights-based approach. It starts from where the person is rather than just how many billions because there are big figures in the government's report. However, it does not necessarily tell us whether children are better off than they were five years ago, and where, and how to target those dollars to make sure that is the case.
It is more than just a dollar, but the dollars may be part of an inhibiting factor.
Mr. Estey: I am glad you asked the question about money. It is a question that never gets asked when people with disabilities start talking about their rights because everyone is thinking to themselves, ``Yeah, sure, it would be good if we could do something about the rights of people with disabilities, but boy, that will cost an awful lot. We don't have the cash.''
That is an important discussion to have. I started out by mentioning that the ILO, the International Labour Organization, in a recent report estimated that the lost part of GDP around the world every year is in excess of $1.37 trillion because people with disabilities are not attached to the labour market.
Sure, it will cost money to get people with disabilities into the labour market. There is no question about that. However, it is a question of how we frame it to some degree, and it is a question of saying there are costs attached to people not realizing their human rights. Will we invest our money in ways to try to get them to have jobs, in this case, or will we accept the fact that if we do not do that, then we continue to have $1 trillion a year that are not going into gross domestic product around the world?
That is the point with people for disabilities, and we recognize that there are costs attached to it, but we also recognize that there are significant costs attached to our not having access to human rights. It is not just the 650 million disabled people that inhabit the planet, but it is also the families of those people — the mothers, fathers, sisters and brothers who stay home and take care of them because there is no place for them to go.
Indeed, there are financials to be considered, but it is much larger than saying, ``Just how much will it cost to create a program?'' There are costs that are already on the table that we need to consider when we start to ask those questions.
The Chair: Mr. Porter, when the United Nations started and the Human Rights Commission came into place and the two basic covenants were put into place, namely, the political and civil, followed by the economic, social and cultural, we recognized that it was a political environment we were in, first. It was the states representing the people. Very quickly, one side of the argument was with respect to the civil and political — the right to life, the right to speak, freedom of expression, et cetera. Religion is a new debate. The economic and social side was with respect to how the state looks after, and that was sort of the communist-Soviet position. We would be arguing civil and political rights, and they would be arguing economic, social and cultural rights. Therefore, it was taboo in many ways to explore the economic, social and cultural rights, as we would see them because we were trapped in an ideology we did not want to be in.
When the Cold War ended and we got into the 1990s, people quickly started to pick up the economic, social and cultural aspects, but we have not had that discourse in Canada at all.
When we looked at the political and civil rights, it was easy for Canadians to embrace because it almost mirrored our criminal laws and our sense of justice, fairness, democracy and rights.
When you get to economic and social rights, they were policy in Canada. One party would say, ``I'm going to do it this way,'' and the other party would say, ``I'm going to do it this way.'' You gained your rights by turfing one government out and putting another in, or at least you worked at that process.
We then moved into the economic, social and cultural areas to put it into the rights-based area and now say it is measurable, but we have not identified how that would be. We say that we might put it into human rights commissions, and I believe you used many examples of how we could test it. You ended up by saying that there has to a test of reasonableness. It is not an absolute right to housing of the standard I envision, but it is the right to some housing and the right not to be homeless. However, what has never been debated or discussed is who translates that into reasonableness and who determines the reasonableness.
If you look at our first report, Promises to Keep: Implementing Canada's Human Rights Obligations, we did outline how we think the debate could be from the point of starting a new treaty to ending a treaty. However, we have some treaties that are in midstream. Some have been ratified; some have been signed; some have been signed and ratified but not fully implemented. It seems to me if we get to the social, economic and cultural side, we must have a debate as to how we implement those rights, what is reasonable and where to go.
There is a growing discourse in Canada that says it is a right equal to the political, and that one should be able to go to court and sue. Then, of course, governments back off from that and others.
How do we get a reasoned debate on that side of human rights which is the economic and social, which in my judgment will be a long debate that needs to be structured by a government to engage citizens and get them to understand the difference? Therefore, the expectations will meet the government's capabilities, which is that whole dialogue you mentioned about the ability to pay, balancing health care against education, housing, women's rights and court systems working effectively. That was always policy. Now, we will move it into rights with an international aspect.
You opened up the discussion and said we need to do that and I agree with you. How would we go about that? I think the short cut is adversarial instead of productive.
Mr. Porter: That is a very large question.
The Chair: My apologies, I do not know how to condense it.
Mr. Porter: What is happening internationally, and domestically in Canada as well, is that the prolonged debate is over. We deal with it by realizing that we are already dealing with it. In other words, the distinction between the social and economic rights claims and the civil and political rights claims have basically evaporated. It is not only that increasingly more countries are protecting social and economic rights; it is with the paradigm shift, for example, around disability as Mr. Estey mentioned.
In Canada, we have the famous Eldridge case where the question was whether governments are obligated to provide interpreter services for the deaf and hard of hearing in accessing health care. In South Africa, that probably would have been framed as a right to health case because South Africa includes social and economic rights in its constitution.
In Canada, it is framed as an equality claim. The standard that the court uses in deciding whether resources should have been allocated, it described explicitly as ``reasonableness.'' It was not reasonable for British Columbia to refuse to pay $300,000 for the interpreter services in light of competing needs. It was not enough money to justify the infringement of the rights.
In British Columbia, we now have a case of homeless people challenging a bylaw that prohibits them from putting plastic over themselves in any permanent way, even to protect themselves from the elements.
I am worried about the Canadian approach. We saw the same thing in the Chaoulli case regarding the right to health care. We seem to think the only way to protect rights is the negative rights paradigm to which you referred. We need to stop doing that to people — stop tearing down their plastic shelters and stop kicking them out of the park. If we do not involve ourselves in the question of what are the positive things you need to do along with that, then we do not end up having effective remedies.
In British Columbia, we have a remedy that allows people to put plastic over their heads overnight in parks. However, the court does not suggest that maybe the government should also be solving the problem of available space in shelters and the inadequate housing problem, et cetera.
Similarly, in the Chaoulli case, in my view, the federal government should have argued that it agreed the right to health is protected under the right to security of the person in the Charter, but that the place to remedy it is in the public health system. If people are waiting too long for a hip replacement surgery, give us the opportunity to remedy it in the court system.
However, our courts are reluctant to involve themselves in that issue. They strike down the prohibition to private health care. They order the wrong remedy. They provide an intrusive remedy because they have not recognized that the new model for rights protection is to recognize that governments have negative and positive obligations. Some involve resources and some save money. It is a standard that has to look at the appropriate remedy in every circumstance.
The discussion in Canada can come out of the meaning of security of the person. Justice Arbour has said it is all in our Charter; it is only a matter of interpreting our Charter fairly.
The right of security to the person surely protects people trying to sleep in a park with adequate protection in a cold climate. Once you get to that point, we can start understanding the right means and the right obligations. There is much happening internationally that gives courts and human rights institutions guidance on this. The international experience is that we argued about it for 40 years. Then we started doing it and it did not end up being as tough as we thought. This is not that different.
Courts are used to considering what is reasonable. How much is a reasonable accommodation of a disability? These are issues that have been dealt with by our human rights tribunals for years. They involve resource allocation decisions.
It is not a matter of entering into a new type of adjudication. In my view, it is more about bringing excluded groups and people into the human rights framework.
Senator Lovelace Nicholas: My question is about disabilities. Were there any First Nations people at the convention?
Mr. Estey: There were not any participants from Canada. I do not know why. I was in charge of organizing community consultations over the course of three years on the convention and the development of the text. Each time there was a consultation, we invited First Nations people to come to those meetings. They never responded to us. The discussion I had with people on this issue did not yield anything. I did not know what to do beyond asking the question.
Other countries did have participation from Aboriginal people, particularly Australia and New Zealand where there was strong participation. However, there was none from North America at all and it is a tremendous shame because of the convergence of issues around disability and being a person of Aboriginal background.
As we move forward with implementation, it is an area that we can certainly open ourselves to. I look forward to doing that. We have had some tentative and interesting discussions in the context of the Universal Periodic Review with First Nations people around the disability convention. We continue to try, but, so far, we have not been successful.
Senator Lovelace Nicholas: I ask that question because there are definitely different circumstances between First Nations disabilities and non-First Nations.
Senator Nancy Ruth: Such as?
Senator Lovelace Nicholas: Many of them probably could not make it because they do not have vehicles. They would not be able to drive themselves or they do not have the money because they are on social assistance.
The Chair: I would like to thank all of the presenters. It has been a long evening and I think you have covered a lot of territory.
We will be in that position that you suggested. The government has many issues to face and address. We do not necessarily think that is a negative; we think that is a positive. We are touching many of the issues that the Human Rights Council dealt with in the Universal Periodic Review, and in Canada's development, if I may say, in the human rights field.
I thank you for your insights and expertise. We hope that you will see some of it filtering through into our report. You will know that your time was well spent with this committee.
(The committee adjourned.)