Proceedings of the Standing Senate Committee on
Issue 4 - Evidence, October 29, 2001
OTTAWA, Monday, October 29, 2001
The Standing Senate Committee on Human Rights met this day at 1 p.m. to examine
issues relating to human rights, and, inter alia, to review the machinery of
government dealing with Canada's international and national human rights
Senator A. Raynell Andreychuk (Chairman) in the Chair.
The Chairman: We are reconvening the Standing Senate Committee on Human
We are delighted to have with us Professor Schabas, Director of the Irish Centre
for Human Rights, National University of Ireland in Galway, Ireland. We are
hearing the witness by videoconfer encing. We are asking witnesses to inform us
about human rights, and to advise us as to how a Senate parliamentary committee
could assist the whole machinery to be moved forward in the human rights field.
We think this is an appropriate time to take stock of our international
obligations and to see whether they correspond with our national obligations,
and also whether we are living up to those obligations that we have ratified or
signed. We look to Professor Schabas for advice and I welcome him to the
Mr. William A. Schabas, Director, Irish Centre for Human Rights, National
University of Ireland, Galway, Ireland: Honourable senators, I am pleased to
be with you today. It is my understanding that I should give a presentation of
about 10 minutes and receive questions. Is that the plan?
The Chairman: Yes, that is our normal procedure, and I would be grateful
if it was about 10 minutes, to give all the senators a chance to put questions.
Mr. Schabas: I am sure that it is noted in my biography, and you can tell
from my accent, that I am not Irish - I am Canadian. I have been living in
Ireland for only the last couple of years. The rest of my career as an academic
and human rights lawyer was spent in Canada, where I was involved in the field
of international human rights and the relationship between Canadian law and the
international human rights obligations of Canada.
I have published a couple of books and many articles, and I have lectured widely
on the subject. I was also responsible for taking some complaints and
applications by people in Canada, directed against Canada, before some of the
treaty bodies, in particular, the Human Rights Committee of the United Nations
and the Inter-American Commission on Human Rights.
As you know, Canada is a dualist system, which means that the role of Parliament
in the field of international law is essentially a passive one. That is the
general theory, and I think the practice is that that is the way Parliament has
played it as well. This means that the initiative in the field of international
human rights is taken by the departments, particularly the Department of Foreign
Affairs, but also other departments that might have a particular interest in the
field, such as immigration, labour and so on. This initiative carries on into
the implementation phase, up until the point where there is a decision to
actually adopt legislation. The theory is that Parliament will enact legislation
to give effect to Canada's international obligations.
There is a further twist in the case of Canada, which is different from other
countries with a similar system, in that, we have the issue of
federal-provincial jurisdiction. There is a famous case that I am sure many
senators are already familiar with, from the judicial committee of the Privy
Council dating back to the 1930s, that held that the federal Parliament could
not encroach upon provincial jurisdiction under the pretext of implementing Ca
nada's international obligations.
In terms of the machinery and how this works, the Department of Foreign Affairs
will take the initiative in actually studying and ratifying a treaty. Normally
this is done in consultation with the provinces because of the problem of
federal-provincial jurisdic tion. I understand there is a committee that meets
approximately twice a year to discuss this.
The conventional wisdom is that Parliament, or rather the Department of Foreign
Affairs, does not move ahead on the ratification of a treaty or similar
international initiatives, without getting the agreement of the provinces in
spheres that concern them. There is an exception that is worth noting. When
Canada ratified the Convention on the Rights of the Child in 1991, we did so
without actually confirming the support of all the provinces. When we produced
our first periodic report to the Committee on the Rights of the Child, there was
a little note.
The provinces have their contributions to report. There is a note from Alberta,
saying that, because they were not in agreement with the ratification at that
time, they are not submitting any part of the report. That is an example to show
that there is a precedent for the federal government moving ahead without
provincial agreement where this might be considered politically useful. At the
time, it was considered to be particularly important that Canada be among the
initial states to ratify the Convention on the Rights of the Child, and that it
was not appropriate to wait for all of the provinces to agree.
This federal-provincial dimension is carried into the imple mentation phase.
When the provinces are consulted on the submission of periodic reports to the
various treaty-monitoring bodies, and they may also be involved where there are
complaints directed against Canada. The classic case is the Bill 101 issue that
came out of Quebec and was decided in 1992 by the Human Rights Committee of the
UN. The Supreme Court, in the Ford decision, in 1988 had struck down the
commercial speech part of Bill 101. The Quebec government responded by invoking
the notwithstanding clause of the federal charter.
The petitioners then took the case before the Human Rights Committee. The
Department of Foreign Affairs and the Depart ment of Justice turned to Quebec
and asked them to defend it. My understanding is that the federal government
took on the responsibility for what could be called the jurisdictional issues,
that is, challenging the jurisdiction of the committee. As for the substantive
issues, that is, challenging the conformity or non-con formity of the relevant
sections of Bill 101, were left to the Quebec government.
I have been asked to speak about how methods and processes involved in the
implementation are carried out within Canada, and how they are translated into
domestic law and policy. The conventional presentation of this is that the
government, that is, the Department of Foreign Affairs, will ratify the relevant
treaty, and then it is for Parliament to ensure that the legislation is
consistent with the initiative of the government. In practice, it does not tend
to happen that way because there is, and there has to be, a process of
consultation so that the administration does not stick its neck out and
undertake a commitment that Parliament is not prepared to respect. In practice,
this is it not such an enormous problem, however, it is desirable that there be
such consultation. A recent example of that would be the ratification of the
Rome Statute of the International Criminal Court. That was done last year
following presentations to the House of Commons commit tee and following the
adoption of the Crimes Against Humanity and the War Crimes Act, which was
adopted last year. It was only after that stage that had been carried out that
the federal government went ahead and ratified the treaty.
Though it does not touch directly on the role of Parliament, it is worth
highlighting other areas of Canadian government that would be involved in the
implementation of human rights treaties. First of all, the courts will implement
treaties, even where Parliament has not directly intervened. A case in point
would be the Baker decision of the Supreme Court of Canada a couple of
years ago. In the Baker decision, the majority of the Supreme Court
determined that the undertaking by Canada in the Convention on the Rights of the
Child, specifically article 3, which represents the best interests of the child
should be considered by an administrative official. In this case, it was an
immigration visa officer. The humanitarian commitments and obligations were to
be assessed in that context. That is an indirect way of getting the
international law before the courts, even if Canada has not ratified it.
The courts have been doing this for many years now with treaties that Canada
will never ratify. Here I have in mind such treaties as the European Convention
on Human Rights. There would have to be a major geographic transformation of the
world before we would ratify that one.
The courts will continue to do this. We will probably see less insistence by the
courts on parliamentary implementation of human rights treaties and they will be
more concerned with just applying the spirit of international human rights law
in their decisions and that will carry over into the work of the administration.
As a final point, I was asked to make a few suggestions on the appropriate role
of Parliament and parliamentarians in the negotiation, implementation and
monitoring of human rights agreements and issues.
I know that some have suggested that Parliament should adopt resolutions prior
to the ratification of treaties and that there should be some more formal
parliamentary consultation. That has never struck me as being the ideal way to
When the Genocide Convention was ratified by Canada in the early 1950s, there
was a discussion by Parliament, there was a presentation of the convention, and
a resolution was adopted by Parliament. I believe that occurred in 1953. I do
not believe that is the regular practice.
It is useful and appropriate that Parliament be consulted before parliamentary
committees, for example, where there is a plan to ratify a treaty. It would also
be appropriate for Parliament to consider taking initiatives to try to push
forward the ratification of certain treaties. Parliament need not wait for the
Department of Foreign Affairs or for other ministries to take the initiative in
determining whether to ratify a treaty. Parliament could actually help to push
the agenda forward.
There are two or three treaties, which I will mention, that are not ratified and
that should be given more serious consideration. The first is the American
Convention on Human Rights. Canada has been a member of the Organization of
American States since 1990, and we have neither signed nor ratified the
principal human rights treaty of this organization.
If you speak to people in the Department of Justice or Foreign Affairs, they
have a handful of technical objections to the ratification that do not add up,
in my opinion. They are not serious enough to be such an obstacle to the
Some non-governmental organizations, such as Rights and Democracy in Montreal,
have attempted through back channels to try to push this one forward, but they
have not had great success. It seems that, in the ministers' offices, the
attitude is friendly, but when you get to the bureaucrat level, there is
hostility or opposition. It would be desirable if Parliament were to express its
enthusiasm, or if Canada played a fuller role in the Organization of American
States treaty system.
Another treaty that should be on the agenda is the second optional protocol to
the International Covenant on Civil and Political Rights concerning the
abolition of the death penalty. This has been on the radar screen now for more
than 10 years. Canada is an enthusiastic party to both the International
Covenant on Political Rights and its first optional protocol. The second
optional protocol revised one of the provisions in the covenant, making the
death penalty contrary to the international law as far as Canada is concerned.
Forty states or more have now ratified that treaty, but Canada has not. In the
past, the opposition that was raised was the fact that we still had the death
penalty in the National Defence Act, and perhaps we were still concerned about
the issue of extraditing to the United States.
The National Defence Act was amended in 1998, and there is no more death penalty
anywhere in Canadian law. Moreover, the Supreme Court of Canada has come down
firmly against extraditing to the United States where someone would be subject
to the death penalty. That issue ought not to be an obstacle.
To conclude, one final treaty that might be considered by Canada is the Council
of Europe's Framework Convention for the Protection of National Minorities.
Currently, this is the only existing international treaty that deals with
minority rights. It is possible for states that are not members of the Council
of Europe to ratify the framework convention. They would first sign it, and
then, upon invitation, ratify it.
I am sure that, if Canada were to express its interest, an invitation would be
forthcoming from the Council of Europe. We are one of the four observer states
in the Council of Europe. This would be a very interesting initiative for Canada
On the question of the appropriate role of Parliament, I think that Parliament
could certainly play a bigger role in treaty monitoring activity. Parliament
could participate in the prepara tion of the periodic reports by Canada to the
various committees, such as the Human Rights Committee, the Committee on
Economic, Social and Cultural Rights, as well as the four other major treaty
body committees. As it stands right now, there is a process undertaken by the
various departments involved in drafting these reports. There is sometimes an
informal consulta tion with non-governmental organizations. I think there should
be a formal consultation with Parliament at the time of the submission of these
reports. Subsequently, there should be a study by Parliament of the results.
After these committees have studied the reports they issue concluding
observations, which are their comments. What they are doing is making
suggestions that will influence the legislative agenda. That material not only
should be submitted to Parliament, but also should be discussed by the relative
The Chairman: Thank you, Professor Schabas. You have touched on all the
points that we are deliberating. I certainly did not forget that you are a
Canadian. Your biography speaks volumes of your contribution to the human rights
and the academic fields in Canada. You have generated some interest from our
Senator Beaudoin: Mr. Schabas, it is a pleasure to see you. According to
the decision of 1937, a treaty signed by Canada does not change the law until it
is implemented - not only ratified, but also implemented. There should be a
distinction between ratification and implementation. An implementing statute is
a statute; it is a piece of legislation. In one case, it may be federal only,
while in other cases, it may be both federal and provincial.
I would like to know more about this as we had a problem the other day regarding
the Convention on the Rights of the Child. Canada has signed that convention,
but I wonder where the implementation is. When I look at Bill C-7, I am not sure
that Canada has implemented the treaty.
Could you elaborate on this for us, please? It seems that we do not pay enough
attention to implementation. It is not only a moral obligation. I wonder if it
is not also a constitutional obligation.
Mr. Schabas: Senator Beaudoin, it is a pleasure to see you again.
When we ratify a treaty, the administration will answer that we have probably
already ensured that the treaty is implemented in various pieces of legislation.
Concerning the Convention on the Rights of the Child, the answer would be, that
legislation is consistent with the Convention on the Rights of the Child. In the
matter of human rights treaties, we are often not implementing positive
obligations, but verifying that we do not violate, through our legislation,
specific norms. That is not always the case; sometimes there are specific
What some countries do is adopt an act that says, for example, it is the
Convention on the Rights of the Child Implementation Act. That is not a route
that Canada has taken. There are some specific pieces of legislation that are
quite identifiable as being implementation legislation. The Crimes Against
Humanity and War Crimes Act of last year is an example of this type of
legislation. There were amendments to the Criminal Code in 1969, which dealt
with hate propaganda, that were to implement the International Convention on the
Elimination of all Forms of Racial Discrimination and the Genocide Convention.
There was an amendment to the Criminal Code in 1987 that was intended to ensure
Canada complied with the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment. However, we have been hesitant to go beyond
In the 1980s, some imaginative lawyers argued that we had already implemented
the big human rights obligations in the Charter, particularly those obligations
in the International Coven ant on Civil and Political Rights. The argument was
made that the Charter was the implementing legislation of that covenant. The
Supreme Court of Canada never bought into that argument. Chief Justice Dickson
toyed with it in a decision of 1987, but it was never carried out.
The question becomes one of how to implement these covenants when a government
department maintains that they are in fact already implemented but a committee,
such as the Human Rights Committee, maintains that the job is not completed.
I do not know if I am answering your question. Is that the type of answer you
are looking for?
Senator Beaudoin: Partly, yes. If there is no implementing statute, then
the domestic law is not changed. If the domestic law is not changed, then it
means we have signed the treaty for nothing. This is what worries me. We have a
Charter of Rights and Freedoms. We have a Constitution that is very good.
However, we do not need to implement. The fact is that the United Kingdom and
Canada have such a system that we need an implementing statute.
We are not the United States, France or Germany. We have a different system. It
is not good enough to say that our Charter is not against that treaty or this
point of view. In the United States, they need the approval of the Senate to
give effect to a treaty. In European countries, they do not need implementation
legislation. However, in Canada and in Great Britain, we do need implementation
legislation, unless the constitutional law has changed over the course of the
I am still looking for an implementing statute and I do not see it. If there is
no statute, it means that the law is not changed. We are in a very difficult
Mr. Schabas: Obviously, there are specific examples where there would
seem to be a failure to implement specific treaty obligations. The question of
interpretation is important. The government position is that they have respected
it, which is why they have this litigation before bodies like the Human Rights
Committee. The committee deals with the claim by the administration that, in
fact, the legislation is adequate.
What you are talking about is, potentially, an earth-shaking constitutional
For example, if the Convention on the Rights of the Child were implemented in an
act, then section 1 would simply read that the convention is part of the law. We
then have the problem with all of the incompatible legislation. In effect, we
would be constitutio nalizing the convention vis-à-vis all of the preceding
legislation. Judges would have to decide whether there was a conflict with the
convention. The other route is to adopt an omnibus bill that would go through
every single piece of legislation, a legislative audit, to identify places where
there are problems. The bureaucrats would say that this was already done before
it was ratified, because they maintain that they would not ratify if there were
I understand the problem, and I know that many human rights people have been
tempted to say that it would be nicer to have the approach they have in Europe,
where they actually have domestic systems where they simply implement the
legislation. A kind of halfway house example is what they have done in the
United Kingdom and what they are about to do in Ireland with the European
Convention on Human Rights. Ireland is now the only member state of the Council
of Europe not to have any legislative implementation of the European Convention
on Human Rights. Ireland has not had a lot of problems with the Council of
Europe, in the European Court of Human Rights, because Ireland has a written
constitution in which many or most of the rights in the European convention are
also enshrined. It is not unlike Canada's situation. However, because of
pressure to have this legislative implementation, the fact that Ireland would be
the only country without this, and because of some undertakings in the Good
Friday Agreement, they are adopting legislation similar to the Human Rights Act
in the United Kingdom. They are saying that if the courts make a finding of
incompatibility between the European Convention on Human Rights and domestic
legisla tion, there is a fast tract to Parliament. I forget what it is called,
but the judge sends some kind of notification to the Speaker of Parliament, and
there is some way of seizing Parliament with the issue.
That is not a full answer to your concerns, but it is an alternative approach
that is done purely through parliamentary initiative and leaves intact the
existing traditional dualist system. It alerts Parliament when there is a
problem between legislation and international obligations. Canadian human rights
lawyers would make dramatic use of such a provision if it existed.
Senator Beaudoin: I would gladly follow the United Kingdom on this. At
least they are doing something.
Senator Wilson: You mentioned the American Convention on Human Rights,
which has not been signed or ratified by Canada. The Department of Foreign
Affairs or the bureaucrats have some technical objections. You said that
parliamentarians could help by showing enthusiasm. That seems a rather weak way
to go at it. We can be very enthusiastic and have a pep rally, but nothing would
change. Do you have any other suggestions? What are the technical objections?
They must be dealt with, because they are in the ascendancy.
Mr. Schabas: The heart of the technical objection is with Article 4 of
the American Convention on Human Rights, which talks about the protection of the
right to life and says that the right to life shall be protected generally from
the moment of conception. As you know, Canada has not had any real legislation,
certainly on the federal level, in dealing with abortion since the Morgentaler
decision of the Supreme Court some 13 or 14 years ago. There is concern that
that provision would lead to challenges and that Canada would lose a case before
the Inter-American Court of Human Rights. That is about the only significant
difference. There are some other little technical issues, and I do not know if I
should go into them.
I published an article on this in the Netherlands Quarterly of Human Rights
about two years ago, and I can make sure that copies are delivered to members of
the committee. It discusses some of the other objections.
I do not have any other brilliant suggestions. I suppose Parliament could enact
legislation or adopt a resolution or do something more dramatic, but it really
is a shame that Canada has not moved further on this. It is not just in terms of
the protection of human rights in Canada, because really the American Convention
on Human Rights largely duplicates the rights that we find in the International
Covenant on Civil and Political Rights, so it will not make a big difference
there. However, it will mean that we will play, as a country, a more credible
and important role in the Organization of American States human rights system.
We are rather marginal right now in that system, and we have to stand aside in
place of the United States of America, which, by the way, has signed but not
ratified the American Convention on Human Rights.
It also means that we do not succeed in doing things like putting forward
candidates to run for the Inter-American Court of Human Rights. Back in 1991, we
actually ran a candidate, former Justice Bertha Wilson of the Supreme Court of
Canada, but she was defeated. Part of the explanation might be the inadequate
participation of Canada in the system.
I guess I have not come up with the magic bullet on how to get Canada to ratify
or even to sign the treaty, but I sure would like to see it happen in my
Senator Wilson: We are having Dinah Shelton from Notre Dame give a
seminar on November 22 in order to educate parliamentarians on the subject.
Would a reservation not be in order here? Has that been looked at?
Mr. Schabas: It has been looked at. If there is a treaty provision that
causes us a problem, the answer is to enter a reservation. There is a debate
about whether we need to make a reservation to Article 4. Mexico, for example,
also had a problem with this provision of Article 4. It made a declaration when
it ratified the American convention, and it has never really had any problems
If you do not make a reservation, you leave it to the courts, and courts are
always unpredictable. I am sure that is the concern of some people in the
Department of Foreign Affairs and in the Department of Justice. The problem that
they raise with respect to a reservation is that there is an epidemic of
reservations dealing with international human rights treaties, and we do not
want to encourage that. We do not want to participate in it.
I do not think that is really an important argument. It is true that many
countries have made extensive reservations to human rights treaties, and we
condemn that as not acceptable. Some countries in other parts of the world will
make a human rights treaty subject to their own national constitution, which
means they are not really undertaking any commitment at all. That would not be
the case in a very closely tailored reservation by Canada to Article 4 of the
American convention. I do not think that they are at all analogous.
I should point out that we did make some reservations in the past. We made some
reservations on the Convention on the Rights of the Child. We made reservations
to the protocols to the Geneva Conventions. It is not unheard of in Canadian
practice, and it is a very neat answer that gets over that hurdle. I think we
should do it.
Senator Kinsella: I should like to focus on the failure of Canada to date
to ratify the American Convention on Human Rights. My argument is that we should
ratify it. The provinces should tally up all of their difficulties, and Foreign
Affairs should draft whatever memoranda or reservations are necessary. Would you
agree that it is important that Canada be an integral part of the machinery of
the Organization of American States on human rights and not have this go on
The officials of the continuing committee of officials on human rights law have
been holding this discussion for over 11 years. Would you agree with that?
Mr. Schabas: Yes Senator Kinsella, I certainly agree with you on that
There are two areas of objection. I have focused on the one objection that comes
from Ottawa because my hypothesis about the problems with the ratification of
the American convention is that there are more difficulties with it in Ottawa
than there are in the provinces. I understand that there are some difficulties
with the provinces, but I think they can be overridden. Certainly, the issue of
abortion, which is the biggest issue, is essentially an area of federal
jurisdiction, according to the case law of the Supreme Court of Canada. I gave
the example as well of the Convention on the Rights of the Child. I do not want
to encourage the federal government to run roughshod over the concerns of the
provinces, however, this is really not an acceptable situation for a country
that is normally in the forefront of international human rights law. Our Supreme
Court of Canada has recognized that in the recent Burns decision. Here,
we are in the rear guard in international human rights law, and it is not an
acceptable situation. It is a situation that is not functioning when we have
this kind of development.
We should have some accountability from the provinces and the federal government
as to who is really holding it up and for what reasons. I think that information
should be public, rather than talked about quietly behind closed doors. Maybe
that is where a committee like yours can be helpful. In a public discussion, we
can clarify who is unhappy about it and where the real problems are. If
political pressure has to be brought to bear on those who are holding things up,
we can look at that as well. It is a black mark on Canada's record.
Senator Kinsella: We have all taken note of your point about the role
that this committee might take to facilitate the study that goes on behind
closed doors and whether we should ratify these instruments.
I would like to turn to the topic of discussion commenced by Senator Beaudoin.
Would you not agree that perhaps these international human rights instruments,
such as the covenants, would be best looked upon by us as a standard that we
have accepted with provincial agreement, and that we focus on how to facilitate
For example, with the Lovelace case and that communication under the
optional protocol, the real compliance occurred when Parliament enacted
legislation to repeal section 12(1)(b) of the Indian Act.
You have alluded to the British Human Rights Act, whereby, if a domestic
proceeding is assessed against the European conven tion, then the court will
draw the attention of Westminster and Parliament to it; and again, it is for
Parliament to act. Is this not even more important in the Covenant on Economic,
Social and Cultural Rights, which by their nature are programmatic and require
parliaments or legislatures to enact legislation to breathe life into the right
to education or the right to health with health delivery or education systems?
In respect to the civil and political rights, it is often important that the
legislations be changed, modified or enacted to give effect to the standard that
is in the covenant.
Whilst my colleague, Senator Beaudoin, is interested in the purity of the
constitutional relationship, I am, as an applied human rights advocate, more
interested in the efficacy in the here and now. In thinking that constitutional
amendments, in this country at least, will not happen in the short term, I would
be more interested in seeing whether we are able to come up with ways to put
pressure on Parliament to enact measures, both to implement the standard in the
civil and political rights covenant, and also to implement the programs that are
required to meet our objectives to the social audit mechanism of the Covenant on
Economic, Social, and Cultural Rights.
Mr. Schabas: That is a useful observation. In my initial remarks, when I
spoke about how the international obligations are implemented, I mentioned the
indirect route, which is through the courts. There are many talented lawyers in
Canada who have been successful, to varying degrees, in getting the
international law before the courts, even in the absence of clear, implementing
legislation. They do this by arguing that some of the legislation, in effect,
implements the treaty; or that the treaty should be interpreted in a way that is
consistent with the treaty; or that the charter should be interpreted in a way
that is consistent with the treaty.
That works, by and large, with the civil and political rights. It is much harder
to win the argument when we are talking about economic and social rights. Judges
answer that this is an area for Parliament, because it is about spending money
and about program-type rights. The implementation is something that, in a
democracy, is left to the legislature and not to the judges.
Now, we answer that by pointing out that there are cases where, in fact, judges
make decisions that have widespread implications for economic and social rights.
An example is the Eldridge decision of the Supreme Court. It was decided
that, to eliminate or to deal with discrimination against people who are deaf,
in their access to medical treatment, a specific hospital in British Columbia
had to provide interpretation facilities. Of course, that was a decision that
prompted, as a budgetary implication, the spending of hundreds of millions of
They do that to an extent. However, you are quite right in saying that the real
implementation of the treaties, particularly in the area of program rights, on
economic, social and cultural and minority rights, is something that is, above
all, the responsibility of Parliament.
Now, on the implementation question, the way it is presented, traditionally,
creates a tension between the administration and Parliament. That is why we call
it a dualist system. It really is not considered that Parliament would take the
initiative to see that the legislation is implemented. It is portrayed in the
constitutional law books as if Parliament is reluctantly agreeing with
obligations that have already been undertaken by the executive.
It does not need to be that way. Parliament could just as easily see its role as
that of a watchdog on the government to ensure that all of the treaty
obligations are carried out, in the fullest way possible.
There, of course, Parliament can work in a partnership position with the treaty
bodies, because the treaty bodies give us a road map that shows where the
changes are needed. The treaty bodies set out where the problems exist.
I point out that, in the last few years, Canada has submitted its reports before
both the Committee on Economic, Social and Cultural Rights and the Human Rights
Committee. Those two bodies deal with the two major covenants. If you compare
the concluding observations of both committees, you note that there is much
overlap between them. In effect, the human rights committee is nodding
favourably and is almost imbued with the economic, social and cultural rights.
Conversely, the Committee on Economic, Social and Cultural Rights is looking to
the Human Rights Committee. It is as if there was almost a common message being
sent to the Canadian government.
The ideal place for that message is right before Parliament. That is the
communication with you about where the existing legislation and where the state
practice is falling short.
Senator Finestone: I must say that it is a pleasure to listen to you and
to read you. You bring a credit on your Canadian education as you move in the
I am interested first in the relevancy of privacy law under international law
and the laws in Canada, as we look at Bill C-36. I do not know if you are aware
of that bill but it is an anti-terrorism bill that we are presently dealing
with. There is a serious concern that an access to information and privacy law
would be constrained. That is true in the United States, as well, in recognition
of the seriousness of what we are facing since September 11.
The second matter that I am curious about is the Council of Europe's minority
rights to which you refer. Where do you see Canada in relation to that, as a
unique country with the first Multiculturalism Act in the history of the world?
It is a study in evolution in a postmodern society.
The third point I am intrigued about is the question of treaty rights and the
monitoring and oversight of treaties.
There is an issue of flagging it so that it would be returned to Parliament, as
opposed to, setting up a revision committee. It could be the Human Rights
Committee, which I would like to see happen in the Senate, that examines where
the problems lay and why we have not had a resolution.
Last, but not least, I read the report that you sent to us on 25 years of public
and international law and the Supreme Court of Canada. The discipline of
international law has been radically transformed in the past 25 years.
We, as Canadians, seem to be influenced greatly by the treaties and the
covenants. From everything that you quote in here, I gather that these things
are influencing our judges. I was pleasantly surprised that it looked like the
evolution of the postmodern society is here in front of us.
You could deal with those in any order.
Mr. Schabas: I made a list of them. I will try to go through quickly the
four points that you have raised.
The issue of privacy law is an area where, interestingly enough, the Canadian
Constitution falls a little short of the international norms on the subject of
privacy. There are important provisions dealing with privacy, for example, in
the International Covenant on Civil and Political Rights, to which we are a
party. However, when in 1981, when the Charter was being drafted, we left that
out of the Charter. The Charter does not correspond, 100 per cent to the
International Covenant on Civil and Political Rights. Sometimes the Charter goes
a little further, and sometimes it falls a little behind.
In the field of privacy, we do not have a strong enough provision in the
Canadian Charter of Rights and Freedoms. We have section 8, which deals with
search and seizure. It is through section 8 that the courts have indirectly
included the privacy concerns.
I suppose the provisions of anti-terrorist legislation that is being proposed
will be examined for the methods of getting informa tion under section 8.
Senator Finestone: They are also mentioned section 7.
Mr. Schabas: Section 7 as well. The jurisprudence has been mainly through
We fall short in terms of privacy. A good lawyer will be arguing the
international law before the courts. A good lawyer would be saying that the
courts, in applying the Charter, should consider this international law.
International law should be used to broaden out the Charter as much as possible.
Ideally, we should take the provision from the International Covenant on Civil
and Political rights, I think it is article 17, and drop it into the charter. Of
course, we will not amend the Charter in the next few months, certainly not to
deal with the proposed anti-terrorist legislation.
I agree with your point about the European Framework Convention on Minorities.
We have some very significant legislation in the Multiculturalism Act. We also
have section 27 of the Canadian Charter, dealing with multiculturalism. However,
we do not have a provision in the Charter that is as strong as what we have in
international law. Article 27, of the International Covenant on Civil and
Political Rights, is a more thorough minority rights protection provision. It
has been amplified by a UN General Assembly resolution. There is this European
treaty as well.
To a large extent, it would be symbolic if we were to include measures as those
in the International Covenant on Civil and Political Rights in our legislation.
It would symbolize not only broader extension of minority rights as an
international law question, but would also be a marvellous way for Canada to
show its friendship with European human rights system and the Council of Europe.
If you heard Mr. Leuprecht, then you have heard much about the European system.
He is a specialist on it, having worked for the Council of Europe for most of
The third point was your inquiry on the British technique, which will soon be
echoed by Ireland, of the flagging treaty violations. In other words, courts are
given the authority to send a message immediately to the federal Parliament.
Provincial legislation would be necessary for the legislatures.
However, certainly in the case of incompatibility between international law and
a Canadian statute, the court should be charged to flag it to Parliament. A very
simple piece of legislation could note that in the case of an incompatibility,
the judge should send a message to the Speaker of Parliament, or something like
You could see the model. I could get the government documents for you if the
researchers were to have any problems with it. There is such reference in the
Human Rights Act of the United Kingdom, which was adopted in 1998 or 1989 and
which came into force in October of 2000.
You are absolutely right on your final point, Senator Finestone, Canada has been
in the forefront on this. The Canadian courts, and that is the subject of my
article, have been a marvellous example to courts elsewhere in the world about
the use of international law. They set precedents that are now being emulated in
South Africa, Israel, throughout Europe, to some extent in Ireland, the United
Kingdom, Australia and so forth.
I wish that I could say the same about Parliament as a model. In a sense, the
enthusiasm of the courts has picked up for the weakness in the dualist system,
and the failure of Parliament to fully implement the human rights obligations of
The courts have tried to fill some of the gaps. They have done it in an
admirable way, but they have not done it entirely.
Senator Finestone: Thank you for reaffirming the concerns of
parliamentarians, which have become much more vocal, about the role of
legislature and Parliament vis-à-vis the executive. You will see this
manifested in WTO, IMF, World Bank and certainly at the United Nations. I am
sorry that it has to be the courts, but I am glad somebody is doing it.
The Chairman: I wanted to go back to Senator Beaudoin's comments. You
might give some consideration to contacting us in written form or otherwise.
The point is not to take away the power from the executive to enact the enabling
legislation or to hold the discretion. The dilemma has been that, in our system,
we say we are in total compliance when we ratify, because we will do the things
we need to do locally, but we have to do something to put them in place. We
often fault the United States for not ratifying.
However, ratification of itself makes it national law. Conse quently, it is
because of judicial interpretations and because of the perceptions in society,
that it is not only to have Parliament have some role in scrutiny, but it is to
look at new ways and means that the executive could give effect to international
obligations. Simply saying that our standards are higher than the international
instruments, which we have often said, is not worthy of Canada.
We have also found that changes are made in our law stating this is sufficient.
Courts rule later, and human rights treaty bodies rule later, that it was not
sufficient. It puts Canada into disrepute through this backroom analysis. Our
committee would like to look at ways to encourage the executive to take a fresh
look at how to approach Parliament and the national law, and, therefore, be
accountable to the citizens in the full implementation of the international
treaties. That is what we are getting at, along with some parliamentary
Mr. Schabas: As an academic studying these questions in Canada, I was
always frustrated by the difficulty in obtaining information about the status of
unratified treaties and about the attitudes towards the ratified treaties. All
of this should be a much more transparent. Some years ago - and I think it has
improved slightly - I was frustrated trying to get information about the
complaints made against Canada before the Human Rights Committee. These were
kept top secret by Canadian officials. Requests made through the Access to
Information Act were fought quite aggressively by people in government as being
not appropriate or that the materials should not be rendered public. It was a
curious situation where one would have a court case that could work its way up
to the Supreme Court, and when it was at that final step before a treaty body,
it was impossible to get any information, or even an acknowledgment that the
cases are there. If I were to phone the Department of Foreign Affairs to ask for
a list of all the cases pending against Canada before the Human Rights Committee
and the Committee Against Torture, I would get a polite response, but I do not
think I would learn anything. There must be more transparency.
I agree as well that the duty, ultimately, is to put this back as a
responsibility to the people of Canada, because these rights and international
obligations, as well as whatever reflection they have in Canadian law, are
rights that belong to Canadians. Whether they are rights that are created by an
act of Parliament, are made by a judge, or are the result of the ratification of
a treaty, they belong to every person in Canada.
We have to ensure that no one in Canada is denied the protection of those rights
because of a loophole. Too often people find themselves in court, and they
believe that they have a certain right as outlined in an international treaty,
yet they do not feel that they get justice. They do not know what to do to get
this right respected. The answer, too often, is, that they have to understand
this complicated dualist system of Canadian law. I think that the people of
Canada deserve better.
The Chairman: We have run out of time, unfortunately. Your time with us
has been well placed, and we hope that we can continue this dialogue as we do
our study. Thank you for your time and your very thoughtful answers.
Mr. Schabas: Thank you.
The Chairman: We will continue with our next panel.
Mr. François Crépeau, Faculty of Law, University of Montreal, Canadian
Human Rights Foundation: Madam Chair, we thank you for the opportunity we
are given to speak with you this afternoon. I am one of the Foundation's
Vice-Presidents. Allow me to introduce El Obaid Ahmed El Obaid, who is also
Vice-President, as well asMs Ruth Selwyn, Executive Director.
In the short time that is allotted to us, I would like to briefly describe our
organization and share with you our perspectives on international human rights
education, which is based on our 34 years of experience working on human rights
education in Canada and abroad. I will share some observations about Canada's
role in promoting and protecting international human rights standards,
emphasizing, in particular, the crucial roles that NGOs and other civil society
actors play in promoting awareness, providing support to victims, and holding
The cornerstone of our activities is an annual international human rights
training program, now in its twenty-second year. This three-week program,
delivered in Montreal, brings together over 110 human rights activists from over
50 countries to develop the knowledge and skills they need to strengthen the
effectiveness of their work.
Our evaluations of the program reveal that the program is indeed having an
impact. This week, NGOs in Niger will be delivering a training session in Niamey
for local NGOs based on the content and methodology of our summer program.
Partici pants from South Asia have formed an electronic network and are
continuing to share information and experiences. In Belarus, our partner is
working with the ministry of education to develop a teacher-training program.
This summer program has also helped to form lasting personal and professional
relationships. We often hear stories of alumni who have stayed in touch with
classmates for many years after the program.
In addition to the activities initiated by former participants themselves, we
have also initiated our own projects with former participants from
French-speaking Africa and Southeast Asia, as well as central and eastern Europe
and central Asia. In the past year, we have delivered programs in Kazakhstan,
Turkmenistan, Uzbekistan, Mali, Morocco, Indonesia and the Philippines.
The foundation's regional programs currently focus on rein forcing the work of
our partners in the following areas: training for NGO trainers, human rights
education in the school system, training in human rights advocacy and monitoring
in Indonesia, promotion of human rights of women and girls, legal protection of
women migrant workers, creating and strengthening independent national human
rights institutions, and human rights and the internet. These human rights
education programs have been highly evaluated, inter alia, by CIDA.
The foundation's success in recent years owes much to our ability to build and
sustain effective partnerships with individual and organizations that share our
interests in human rights education. Our partners around the world include
non-govern mental organizations, national human rights institutions, interna
tional organizations and, in some cases, government officials.
The foundation would not be able to undertake its programs without these
partners. Our partners are involved in almost all steps of our programming.
Their specific roles may vary depending on the capacity of the organization and
the context of the program.
Many of our strongest partnerships have their origins in our annual training
program in Montreal. It is during our annual summer training course that many
NGOs first have a chance to get to know us and we begin to learn about their
organizations and issues. The opportunity to spend three weeks together also
facilitates the emergence of the personal relationships that play a crucial role
To have a meaningful impact, our programs must respond to clearly defined needs
and be targeted at an appropriate audience. Working closely with local partners
is essential in defining specific objectives, stakeholders, and the expected
In our most successful programs, our partners are actively engaged in designing
activities and in the delivery of training workshops. Their input is required in
curriculum development, logistical preparation, facilitation, evaluation and
follow-up. It is this engagement in every step of the process that equips them
to better undertake programs on their own.
Our partners also have expectations from us. They look to the foundation for our
expertise in program development, human rights education, content, and
instructional design, our capacity to mobilize financial and human resources to
address these issues, and our empathy and solidarity.
In our experience, building and sustaining partnerships is a long-term process
that requires commitment and energy. Success ful partnerships are built around a
common vision, equality, mutual respect, and strong personal relationships. It
takes time for partners to trust each other and to develop comfortable ways of
We believe these principles apply equally to NGOs and governments when they
engage in human rights activities.
The twentieth century was characterized by social, political and economic
upheaval around the world. During the latter half of the century, significant
progress was made in defining and promoting international human rights
standards. The tremendous growth of the global economy created new opportunities
for many, but these benefits were not shared equally. Intra-state conflicts,
endemic poverty and associated human rights violations were all too common.
The tremendous hope of human rights activists that greeted the end of the Cold
War has been replaced with the knowledge that the full realization of human
rights is a long-term process that will require great effort, constant vigilance
and the investment of adequate resources.
One cause for optimism, witnessed during the past decade, is the tremendous
growth in the capacity of civil society to influence public policy and raise
public awareness regarding human rights and governance issues. The work of human
rights NGOs, in particular, has helped legitimize the human rights discourse and
has expanded the general public's understanding of human rights. It was largely
the work of NGOs that led to greater recognition that women's rights are human
The work of NGOs at the Vienna World Conference on Human Rights in 1993
reaffirmed the indivisibility and interdependence of human rights and has led to
new strategies to promote economic, social and cultural rights.
Despite the efforts of the United Nations and civil society, civil conflicts due
to nationalism and sectarianism remain too common. At our annual human rights
training program, our partners from the former Yugoslavia, East Timor, Rwanda
and Sierra Leone have brought into sharp focus how ethnic, economic, religious
and political tensions can destroy societies and cause untold suffering.
Through our human rights education programs, we have been strengthening the
capacity of our NGO partners to engage in conflict prevention and resolution,
and for the work required to rebuild nation states after a conflict.
The experience of the past decade has confirmed the limitations of a human
rights agenda that focuses only on civil and political rights. Despite massive
efforts, poverty remains a fact of life for large segments of the world's
population. While economic globalization has brought benefits for many, many
have also suffered. The income gap between the richest and poorest in our
societies has increased dramatically. As a result of the prescrip tions of the
World Bank, IMF and World Trade Organizations, many countries have had no choice
but to adopt policies that increase unemployment and reduce the quality and
access to public services such as education and health.
Increasingly, the participants in our programs are concerned about the impact of
globalization on human rights. In India and South Africa, our partners are
working to demonstrate that the components of the rights to food and housing can
be enforced by the courts. We need to support these efforts to develop the links
between human rights and sustainable development.
Our education activities provide a forum for participants to debate ideas and
explore new strategies. Through our recent work with NGOs and national human
rights institutions, in the area of economic, social and cultural rights, we
have explored the need to include a human rights analysis with economic
development plans and trade policies. As a result of this workshop, the
Philippines Commission on Human Rights is now developing a joint program with
the UNDP and Filipino NGOs.
Our NGO partners have also strengthened their capacity to engage governments and
international organizations in the promotion of a human rights agenda. We are
proud to have been part of this kind of process and to have worked with many
outstanding activists who have contributed their ideas and energy, often under
For example, in Thailand we worked closely with local NGOs supporting their
successful campaign to create an independent national human rights commission.
As a result of NGO work, many countries have achieved progress toward
establishing more democratic forms of governance, including parliament, the
judiciary, and establishing independent and effective national human rights
However, strengthening institutions is not enough. No matter how much effort is
put into parliaments, the judiciary and human rights institutions, these
energies will be for nought unless a similar effort is put into the emergence of
a vibrant civil society capable of mobilizing the public to protect their own
Mr. El Obaid Ahmed El Obaid, Faculty of Law, McGill University, Canadian
Human Rights Foundation: My role is to highlight some of the policy issues
that reflect our view at the foundation. The first and foremost issue is our
response to the events of September 11 and their aftermath.
We feel that the impact of the events of September 11 and the subsequent
reaction of the United States, Canada and other countries could make it even
more difficult or complicated to respond to existing human rights challenges. We
must work to ensure that international human rights standards that were
developed after approximately 50 years of negotiation do not become a casualty
of the new war on terrorism.
We are concerned about the impact of the situation and what effect that might
have on the work of our partners in such countries as Uzbekistan and Indonesia.
In Indonesia, we have a fairly substantial project that will last for three
years, however, the events of September 11 and their aftermath jeopardize many
activities in such countries.
Even in Cambodia, human rights NGOs are reporting that the government is using
the war on terrorism as a pretext to crack down on political opposition and
NGOs. Last Thursday and Friday, we were responding a threat to one of the
leading human rights activists in Cambodia. A judge issued a threat following an
intervention in a case of child abuse.
We are also concerned about the need to protect tolerance and civil liberties
within Canada. Next week, the Canadian Human Rights Foundation will be
organizing a round-table discussion in collaboration with the University of
Montreal and McGill. That round table discussion is entitled, "Terrorism
and Resisting War: Does Human Rights Education Matter?" I am happy to
report that Senator Wilson will be one of the key speakers at that particular
We are also planning similar initiatives, which are taking place around the
country and the world, to encourage dialogue and generate new solutions. We
believe that most of these initiatives deserve to be supported and heard. In
many ways, the attack on the World Trade Center has brought home the
implications of living in a globalized world. Even if we wanted to, Canadians
cannot live in isolation. We have seen in a concrete way that conflicts around
the world can affect all of us. We must also recognize that our own actions can
impact on others.
If there is a ray of hope from the recent tragic events, it could be that
Canadians will develop an increased awareness of the complexities of the world
and the importance of protecting human rights.
Our experience has proven that success in promoting human rights values depends
to a large extent on the knowledge, the skills and the determination of human
rights activists in the non-governmental sector.
We see Canada's role in sharing experiences, resources and expertise.
Traditionally, Canada has been viewed as a positive player in advancing human
rights. Joan Humphrey, a law professor at McGill and one of the founders of the
foundation, played an important part in drafting the Universal Declaration of
Human Rights. The Canadian government and NGOs have taken the lead in campaigns
to end apartheid, to establish the International Criminal Court, to ban land
mines and to promote human rights in countries around the world.
On more than one occasion, our international partners have told us that they
appreciate working with Canadians, and value in particular the approach of the
Canadian Human Rights Founda tion, with a view to partnerships. However, if we
are to be honest, we must also admit that Canada's record is not always
positive. Our government has been accused of shying away from criticizing the
human rights record of some countries if trading relations could be affected.
Investment by Canadian corporations, such as Talisman's oil and gas exploration
in the Sudan, provide a source of much needed hard currency for some repressive
Our NGO partners in Kyrgyzstan and in the Philippines have expressed concerns to
us about Canadian mining corporations, such as Cameco at Kumtor goldmine and
Placer Dome in the Philippines. These companies are responsible for toxic waste
spills, which result in environmental damage and problems for local communities.
Occasionally, our overseas partners also question the role that the Canadian
government plays within multilateral financial and trade institutions.
While our partners recognize Canada's many successes in the area of human
rights, they are also aware of our shortcomings in the areas of Aboriginal human
rights and the protection and promotion of economic, social and cultural rights.
As we promote human rights in the international arena, we must remain mindful of
the ongoing need to enhance human rights protection at home.
Under these circumstances, human rights organizations in developing countries,
and countries in transition, look to Canada for solidarity and assistance. With
Canada's rich tradition of democracy and support for human rights at home and
abroad, there is it no doubt that this country has much more to offer than trade
The Canadian Human Rights Foundation believes that Canada needs to continue to
improve its efforts to engage in the process of strengthening international
human rights standards and to provide support for organizations seeking to
implement these standards in their own countries.
Having said this, we also recognize that there is no quick fix for the human
rights problems of the world. In our view, building a human rights culture is a
long-term process. Canada has an important role to play, but we can only be
effective if we are willing to increase our involvement and commit to a
To maximize Canada's international position, Canada should make effective use of
its bilateral and multilateral relations to express its concern about human
rights violations. Canada's membership in the UN, the OSCE, the Commonwealth, La
Francophonie, the WTO, the IMF and other international organizations gives us
considerable opportunities to raise human rights issues at the multilateral
Canadian NGOs, including the Canadian Human Rights Foundation are also actively
engaged in promoting human rights, and make a substantial contribution to
Canada's global influence on these issues. The Canadian government and NGOs
should continue to explore possibilities for greater collaboration and increased
One of the most effective ways for Canada to contribute to the process of
democratization is to support human rights education initiatives that target
schools, state officials, civil society and the public.
The content of such programs should affirm the universality of human rights as
well as the interdependence and the indivisibility of civil, political,
economic, social and cultural rights. Over the long term, the creation of a
culture of human rights is a necessary foundation on which democratic
institutions and the efforts of civil society must rest. Again I emphasize that
Canada has an important experience to share and must support these efforts.
We also believe that Canada has a vital role to play in supporting NGOs.
The Chairman: I know you will give us the full report. Is there some way
that you could synthesize what you have left to say so we can leave time for
Mr. El Obaid: To conclude, Madam Chairman, Canada should play a leading
role in supporting civil society or any of the non-governmental actors in
relation to human rights. That has been the focus of our work. That has been the
most strategic point that we would like to advance along with the importance of
economic, social and cultural rights, the importance of streamlin ing human
rights issues within Canadian foreign policy and development activities and
The Chairman: I should put on the record, because we are being televised,
that this committee will not be dealing with issues that deal with Canada and
other countries. We will be looking at machinery and broad issues, however, we
will not get ourselves into a position of advocating for or against any
particular issue, geographically or otherwise. As you have demonstrated, the NGO
community is well equipped to do so. Doing that would detract from our purpose,
which is to strengthen the overall machinery, be it here or abroad. We are
looking at more global issues. You dealt with some issue-specific areas, and I
hope they will be taken as illustrative of greater problems rather than looking
for this committee to find solutions to those issues.
Senator Kinsella: I have two questions. The first relates to how the
senior non-governmental human rights organizations in Canada, of which the
Canadian Human Rights Foundation is perhaps one of the most senior, are able to
survive in these difficult economic times. What government programs are there
available to Canadian human rights NGOs to provide core funding for operations?
Ms Ruth Selwyn, Executive Director, Canadian Human Rights Foundation: Most
government organizations that I have come across, in my eight-years with CHRF,
do not provide core funding. We, as an organization, are project funded. We seek
other funds for non-tied funding, which is funding that is not income. I
personally do not know of any core funding granted to organizations such as
ours. If you do know of any, I would appreciate learning about them.
Senator Kinsella: Do you think that this committee ought to look at the
manner in which the Canadian human rights civil society infrastructure operates?
Given the nature of Canadian society, we have always had a mixed economy between
state participation and private sector participation in promoting community and
humanitarian objectives. In the past, the Secretary of State's department, when
it existed, had a significant human rights program. The former Department of
Multiculturalism and Citizenship had a significant human rights budget that was
designed to participate, on a partnership basis, with the NGO community for the
promotion of human rights domestically and internationally. Your testimony is
that these programs have all disappeared. Is that correct?
Ms Selwyn: You mentioned core funding. That was your question. I think
that both Justice and Multiculturalism, in terms of federal funding bodies, do
still fund projects. To my knowledge, they do not do any core funding.
Senator Kinsella: I feel obligated to ask my second question. The
greatest threat to human rights in Canada today is the decision of the
Government of Canada to ensure that state authorities have the kinds of tools
that are necessary to protect human security in Canada. It is the right
decision, however, it comes, as everyone is admitting, including government
represen tatives, with some encroachment on human rights. As one of the lead
Canadian human rights organizations, what are some of the major concerns that
the Canadian Human Rights Foundation has with the encroachment of human rights
envisaged by Bill C-36?
Mr. El Obaid: According to our own bylaws and mandate, we do not
necessarily take any position in relation to activities of the government
vis-à-vis the current events. However, we also have a strong realization that
we cannot ignore the events of September 11. We are doing our part to provide a
forum, but I would also emphasize that human rights should not be sacrificed.
They should not be a casualty of activities by the government or other actors.
This is what we see as our meaningful contribution. We do provide human rights
education and the necessary tools to develop human rights in institutions, but
we are aware of the fact that we cannot avoid certain issues. We are keen on
maintaining our original mission and our neutrality.
Mr. Crépeau: Participants in the International Human Rights Training
Program that we offer every summer in Montreal are financed by the Canadian
Government. This participation, which has been part of our experience in recent
years, is an element to consider and is not a formal position. Participants are
selected through a fairly difficult selection process. They are chosen because
they come from high-quality partner institutions. Fre quently, we are unable to
obtain visas for many of them. We believe that next year, considering the
overall security measures, the problem will get worse.
We have debated on how to address this issue. This is a human rights training
program based on the Canadian experience, which is very rich, and we are trying
to spread this Canadian experience across the world and through programs, with
the financial support of various Canadian Government Ministries. We have serious
problems attracting a certain number of people for security reasons, but for
which we have no feedback. We are given no reason, and we are unable to discuss
this issue. In concrete terms, there may be a major impact in the coming months
on our ability to deliver our programs.
Senator Poy: My main interest is the human rights education initiative. I
have a number of questions. What initiatives has the foundation taken in the
area of education, aside from your summer human rights program, specifically
regarding schools and young children? What support are you receiving from the
government? What reaction are you eliciting from foreign governments when they
are told that their education systems should be changed and that their young
children should be taught about human rights? Are there other countries that
have programs similar to your summer human rights training program?
Ms Selwyn: Before my arrival, the Canadian Human Rights Foundation had a
large program visiting schools. We developed materials for children and for
teacher training. That program faded because of provincial jurisdiction in
Quebec and also because it did not work when we expanded to the federal level.
There were different provincial programs.
The materials that we developed are still being used in the schools. Some people
we trained in the program are now teachers who are doing the training. We are no
longer running that program in any formal way. However, we are exploring some
new ways of continuing that work.
In terms of support from government, we are very generously supported by CIDA.
We have also had support from the UN, the Ford Foundation and many other
foundations. However, a large percentage of our current revenue comes from CIDA,
who have actually approached us to do some programming for them. In terms of
reaction from foreign governments, we work with non-governmental organizations.
Therefore, our partners, as Mr. Crépeau mentioned, are developed over a period
of time. They approach us to see whether we have something. We learn much from
them, and we hope to bring that back to Canada.
In Kazakhstan, we were approached to do teacher training. We did our first
training program there in the local language. Two years ago we did a second one.
We were then approached by the OACE and the Kazakhstan ministry of education and
asked to run the training program throughout the schools systems. The foundation
had quite an effect, and we are justifiably proud.
An example, with respect to the reaction from foreign governments, occurred
while we were providing training in Thailand. One of their government officials
approached our small Indonesian head office and said that he would be happy to
help us establish accreditation for our office in Jakarta.
In response to your question about programs in other countries, I do not know of
any other programs that are using the exact methodology that we are using. It
takes a great deal of time and energy to develop. Some of our partners are now
doing that. For example, our South Asian partner said they would like to do a
small version of the training program. The people from India and the Pakistan
worked together in Canada. They took the foundation's list from the last three
years, they reached the contacts when they went home, and they are now
delivering a one-week program, based on parts of our annual program, outside of
Delhi, I believe. That is the kind of effect the foundation has had.
Mr. Crépeau: As regards our relations with foreign govern ments, we had
a very close work relationship for several years with the Human Rights
Commission of Indonesia. The Indonesian Human Rights Commission's report on the
Timor events is one of the two reports that very directly contributed to the
fall of the Suarto regime. Our goal was not to cause the fall of a regime, or
even to play a roll in the fall of the regime. However, we believe that all the
work accomplished with the Human Rights Commis sion of Indonesia with respect to
the training of Commission members and personnel, the presence of Commission
representa tives in Montreal, and the programs implemented with them, has
certainly contributed to provide a Canadian expertise and a certain perspective
on the events. All these events contributed to the fact that the Commission was
able to have this impact. We believe that we played a role, although indirect,
The programs usually delivered in other countries, such as the Thessalonica
program in Greece or the Strasbourg program, are concerned with the
international law aspect of human rights and are generally very formal programs
delivered in a university-like context. The Foundation has been a pioneer in the
implementation of much more interactive programs in which participants were
chosen based on their experience as activists. The participant's experience is
put forward, and the program is much more interactive. Participants educate
themselves. We are only there to facilitate learning methods. This program is
entirely new and is now being imitated. Participants take this knowledge back to
their countries and use it in a very creative way through plays, training is
schools, and reproducing courses, including summer courses in which specific
issues are addressed, such as the rights of women or children.
Senator Finestone: First, I wish to tell the committee that I had the
privilege of watching the program in action and meeting many of the people who
took part in this program. During a number of international meetings that I have
attended, I have met activists who took their first formal training and learned
best practices from this Montreal session. It is quite fascinating and I
appreciated it very much.
I have a question relevant to the importance of civil society and the
development of a culture of human rights. Does your bylaw or your foundation
document give you the right to work both in Canada and internationally, or are
you restricted in this sense?
My next question builds on the question posed by my honourable colleague Senator
Kinsella, about the role and placement of CIDA in the promotion of the Canadian
human security agenda that was proposed by Mr. Lloyd Axworthy and picked up by
the Security Council as a function of the United Nations. In particular, I am
interested in the role of CIDA in human rights and democracy. How do you see the
role of CIDA in helping the NGOs spread an appreciation for human security and
human rights? Financing would be only one part.
Do believe that it is necessary to have any kind of memorandum of understanding
in the contracts that are awarded by Canada to the various industries of the
world, and to trade in particular, to ensure that Canada meets its commitment
and its undertakings, and so that there is no obfuscating of our position with
respect to the promotion of human rights?
It is important for groups like yours to be aware of the growing feeling that
the power of parliamentarians to legislate the decisions made by the executive,
particularly at the United Nations, is not being effectively used. Do you get
that sense as you do your work internationally?
Mr. El Obaid: Our mandate does not restrict us from working abroad. We
are mandated, by funding and other circumstances, to focus on our international
work, however, I think many NGOs are doing similar work in the domestic area.
Our current plans are to revisit the idea of engaging in domestic activities.
Senator Finestone: Would you be doing training sessions with NGOs that
hold similar ideas? I know your programs and projects are excellent. I have read
through some of your grant requests. Many of the NGOs that I was familiar with
could use the kind of help that you offer in your training program.
Mr. El Obaid: I will leave it to Ms Selwyn to give a full answer. We
currently have a project to develop a UN road map to be used for women migrant
workers in an Asian context. Interestingly, part of that road map is being
shared with domestic organizations and, in some cases, they are collaborating in
developing the road map. Some of the people who come from that region end up
working here and probably need some of the protections that we are trying to
develop or that we are trying to sensitize NGOs and governments abroad to. The
foundation certainly has that kind of capacity. The constraints again are
funding and our capacity to do particular things at a particular moment.
I would like to talk about the role of CIDA in furthering our work and also in
supporting civil society and NGOs. CIDA has been supportive most of our work at
the foundation. Recently, however, we have had some concerns regarding the new
framework for action that is now in the process of consultation and development.
The framework is called social development priorities.
Our concerns stem from two directions. One is the type of issues dealt with in
the framework and second is the proposed methodology for implementing this
The four issues that are being proposed as the main focus of the framework are
as follows: basic education; health and nutrition; the question of HIV/AIDS; and
Senator Finestone: There is nothing on the development of democracy?
Mr. El Obaid: Those are the four elements of the social development
framework. We need more rights analysis in this framework. We need an explicit
mention of the fact that, even if these are the issues on which we should focus,
we should have a human rights perspective. For example, if there are questions
about access, about non-discrimination, or about basic education being provided
on the basis of social and economic rights, then these particular obligations
should have a stronger perspective.
Regarding methodology, a proposal will likely be made to shift from direct
bilateral assistance, or project-based assistance, to programmed
multilateral-based assistance. That means the money will be pooled together in a
World Bank type of framework, which is called a sector-wide assessment, whereby
priority lists will be established and donors will be asked to give their
funding to the particular areas.
Our concern is that process will leave the NGOs out of the picture. That
framework is only amenable to governments. In that sense, our main work is
actually with NGOs and with strengthening the civil society. It may not be that
obvious domestically, however, a meaningful human rights protection cannot be
achieved abroad without a very strong non-governmental sector. That kind of
policy shift or change may negatively affect support for NGOs. However, it is
not a done deal. There is room to influence some clarity or at least some
changes in that perspective.
Senator Finestone: Perhaps any other intervenors can place their
questions on the record and, if there is not enough time, the witnesses can
answer in writing.
The Chairman: That is a good suggestion.
Senator Wilson: You stated in your presentation, Mr. El Obaid, that
Canada can be more than trade and investment and that one of your foundation's
aims is to support civil society. Do you include corporations as part of civil
society? I see a contradiction and a lack of coherence in Canadian foreign
policy because we trade and invest with one hand and we seek human rights and
environmental protection with the other. There has never been a coherent policy
to bring those together.
Are you able to do any work in that area? You seem to have access to foreign
governments. Do you have any access to the Canadian government?
Senator Joyal: To place my question on the record, I would like to revert
to your brief at page 8:
Even in Cambodia, human rights NGOs are reporting that the Government is using
the War on Terrorism as a pretext to crack down on political opposition and
NGOs. We are also concerned about the need to promote tolerance and protect
our civil liberties in Canada.
My question is to Mr. Crépeau. Some senators alluded in their questions to the
special committee studying Bill C-36, where we have been very much concerned
with what would happen to NGOs and their certificates, especially when they are
operating in countries where the regime is rather dictatorial, that that regime
can pass on information accusing NGOs involved in human rights activities, among
others, of being terrorists.
You later mentioned that the Suharto government was certainly very friendly with
NGOs involved in human rights. That government could pass on information to
Canadian authorities that those groups are subversive and, as such, should not
be receiving support from Canadian NGOs. Some countries see the work of NGOs as
threatening what they would call the established order.
Mr. El Obaid: If I understand correctly, Senator Wilson asked about
corporate codes of ethics.
Senator Wilson: Not quite. I asked a more general question about your
relationship to corporations.
Mr. El Obaid: We do not have one. Specifically, our target in a civil
society is any civil rights NGO.
Senator Wilson: And you do not consider corporations to be NGOs?
Mr. El Obaid: No, we do not.
Senator Wilson: What are they? Are they governments?
Mr. El Obaid: Depending on their nationality in the country of origin, at
least in the target country where we are working, it is likely, but not
necessarily, a domestic element of that particular country. In that sense, we
are working on the ethics we would like to see in the work of such corporations.
Senator Wilson: I urge you to rethink the Canadian situation. The
corporations are not government, however, they must be something.
Mr. Crépeau: In this blended answer to many questions, I am speaking
more in my personal capacity than representing the foundation, because the
foundation has not taken a stand on most of these issues. The problem we have
with operations abroad, be it operations of the Canadian government, the
relationship between the Canadian government and foreign governments, the
relationship between the Canadian government and Canadian corporations operating
abroad or other foreign corporations operating abroad, is a problem of
information, being able to know what is happening out there. These areas are
often sensitive and secret, and are often not subject to the Charter, so there
can be no litigation. We must rely on scarce sources of information. When there
are difficult situations in the relationship between a Canadian corporation
abroad, which has some form of Canadian government support, and local NGOs over
there or local activists, there is little we can formally do. We can try to
inform people here, and we do that. That has been the case for Canadian mining
companies and NGOs abroad. We can bring the information back here and try to
have a system. However, we lack a formal forum that all this information can be
brought into and that the Canadian public and ourselves, NGOs, civil society, as
well as political parties and other actors, can go into to be informed about
what is happening out there.
It is often difficult to know. The example Senator Joyal brought forward is
certainly interesting. Where do we get correct information about the activities
of NGOs or activists abroad? Our Foreign Affairs department certainly relies on
information given by other foreign governments because it deals with these
governments on a daily basis, but we need to infuse our information with other
sources. We have seen that in the immigration sector and refugee sector, for
example, where we need to have government sources as well as other sources. The
problem we have is that the process is secret. Often we do not know in many
decisions or discussions what the government departments are relying upon in
terms of information. We do not know the sources. Only when it comes to some
form of judicial process, such as an immigration or a refugee hearing, do we
know the sources of the information, and then we can try to deal with them and
say this type of information has to be completed by other forms of information.
It is difficult to deal with.
The Chairman: Education is the key to anyone beginning to exercise his or
her human rights. The more that Canadians understand how education about human
rights is disseminated around the world and Canada's role in it, the better
equipped we will be to give advice about furthering the human rights machinery
both here and abroad. I thank you for your helpful comments on your foundation
and about CIDA.
Senator Finestone: I wonder if under Citizenship and Immigration Canada,
a project could be initiated which outlines that for Canadians to be good
citizens they must understand human rights law. The program that Senator Poy
asked about earlier could be developed and funded through Citizenship Canada,
and then spread across the world.
The Chairman: That may be a wonderful suggestion to put in our report,
and we will have time to discuss that.
We will go to our next panel from the Ontario Human Rights Commission, Mr. Keith
Norton and Mr. William Noble. I know you are aware of our study because we have
had a discussion previously about it. I know that the human rights commissions
across Canada have been struggling about their role and how to deal with the
international agenda that appears to be confronting them in their work.
Mr. Norton, you are well known to the human rights community, and I would like
you to make your opening comments.
Mr. Keith Norton, Chief Commissioner, Ontario Human Rights Commission: Human
rights commissions that are created to administer human rights codes often are
the primary institutional mechanism within the jurisdiction for protecting and
promoting human rights. The Paris Principles and other UN documents refer to the
role of the national human rights institutions in addressing rights.
However, in a federal system such as ours, no single national human rights
institution can be responsible for promoting and protecting human rights across
the country at all levels. Rather, the role falls to the Canadian Human Rights
Commission for matters falling within its mandate and jurisdiction, as well as
each provincial and territorial human rights agency.
In Ontario, we have undertaken several initiatives to explore how to maximize
the effectiveness of our mandate under the Ontario Human Rights Code. These
initiatives have included preparing a research paper on human rights commissions
and economic and social rights, and hosting a dialogue which brought together
human rights agencies from across Canada, provincial and federal government
representatives, NGOs, academics and a senior representative from the UN Office
of the High Commis sioner for Human Rights to analyze how commissions, civil
societies and government can work together to identify issues, developments and
challenges in the field of human rights. I am pleased to say, at least two
members of this committee participated in two of those gatherings that we
We also organized a legal conference to explore how international obligations
can be incorporated into the work of the Canadian Human Rights Commission, and
to facilitate the development of a litigation strategy for economic, social and
cultural rights violations under the Ontario code. We have also had an
opportunity to research and analyze the Paris Principles and principles of
administrative law with a view to defining what it means for a human rights
commission to be independent from government. The Ontario commission was also
instrumental in preparing a background paper and two resolutions dealing with
social and economic rights that were eventually adopted by the Canadian
Association Statutory Human Rights Agency, known as CASHRA, at its 2001 annual
The Ontario code was enacted in 1962. It is the oldest human rights code in the
Senator Finestone: Older than Quebec's?
Mr. Norton: I believe so. In 1962, Ontario enacted its code. Quebec has
been more progressive than Ontario on some fronts, but our code predated the one
It is, in large part, based on the ideals espoused in the Universal Declaration
of Human Rights. The enforcement model contained in the code was developed from
earlier fair employment and fair accommodation practices legislation in the
province. Over the following 15 years, other Canadian jurisdictions adopted
human rights enforcement systems using similar models. In the 39 years since its
enactment, the code has undergone several revisions; however, most of its
essential features have stayed the same. Herein lies one of the challenges.
Because our code originated at a time when rights of a civil and political
nature received the greatest attention and many of the international conventions
did not yet exist, the scope of rights protected under our mandate is more
circumscribed than under the mandates of some of the newer human rights
commissions around the world, for example, South Africa.
An important aspect of our mandate is the investigation and enforcement of
discrimination and harassment complaints. The commission can receive complaints
from the public but it also has the power to initiate its own complaints.
Complaints can be against private entities and governments, including government
action policies and programs. In fact, unless otherwise stipulated, the code has
primacy over other provincial statutes, which means we can even receive
complaints that provincial and municipal laws are discriminatory.
Human rights commissions across Canada have recognized that the promotion and
justifiability of economic and social rights in Canada has lagged far behind the
rights enshrined in other international instruments. However, human rights
commissions can, and should, use any relevant international instrument when
considering human rights complaints and arguing cases before courts and
tribunals. No doubt you are aware of the fact of the Supreme Court of Canada has
affirmed that Canadian law must provide at least as much protection as
international human rights law. International law, according to the Supreme
Court, helps gives meaning and content to Canadian law, and since human rights
legislation in Canada has a quasi-constitutional status, international law has a
special relationship to human rights codes. Accordingly, human rights
legislation should be interpreted and an administrative discretion exercised in
a manner that is most consistent with international human rights norms. By
interpreting their enforcement mandates broadly and in a manner that is
consistent with international instruments, human rights commis sions can play a
role in promoting judicial recognition of Canada's international obligations.
In addition to our enforcement function, the commission has a broader mandate to
protect and promote human rights through policy and education. In Ontario, we
have placed a heavy emphasis upon our ability to advance international and
domestic human rights norms by making and defining human rights policy. To this
end, we have developed a number of commission-ap proved policy statements that
set out the commission's interpreta tion of various provisions of the code and
the relevant case law. We have integrated international human rights principles
into the development of our policies, and these policies have made reference to
applicable international conventions.
In 1998 and 1999, the commission undertook to conduct research in the area of
multiple and intersecting grounds of discrimination with a view to developing an
analytical model for recognizing the unique disadvantage that can arise when
grounds such as race and gender intersect. The need for an intersectional
approach to discrimination was recognized as a key strategy at the world
conference against racism in South Africa. The commission is about to release a
discussion paper on an intersectional approach to discrimination and to consult
on this issue. I can tell you that the work that is being done on an
international level will be of critical consideration in the development of this
project. We as a human rights commission therefore have the opportunity to
implement, in part, one of the recommendations of WCAR.
Section 29 of the code allows the commission to engage other institutions and
bodies in several ways. The commission can enquire into human rights matters in
the province and take steps to encourage organizations to participate in efforts
to reduce, or prevent, human rights problems. For example, the commission
recently undertook a province-wide consultation on human rights issues facing
older Ontarians. We reported on the feedback we received and made numerous
recommendations for government and community action for steps to combat age
The commission frequently writes to organizations and identifies human rights
issues to be addressed. The commission can review any statute, regulation,
program or policy, and can make recommendations to government. We therefore
frequently write to, and meet with, government ministers and ministries to raise
concerns regarding compliance with domestic and interna tional human rights
obligations. Our experience has been that, generally, government is receptive to
our input in this regard.
In addition to interfacing with entities within the province, we are also
developing our capacity to work with other human rights commissions across
Canada. CASHRA is becoming increasingly active as a national organization that
can advance Canada's domestic and international human rights obligations. I
believe this is a positive development because, as I mentioned earlier, we do
not have a national human rights institution in Canada. Due to the division of
powers, there are often jurisdictional issues, and it is only by working
together that we can holistically tackle a human rights problem. The situation
of aboriginal persons who live and on and off reserve is an example of this.
In particular, CASHRA has confirmed its support for the inclusion of social
condition as a ground of discrimination in human rights legislation and has
written to all governments to request that legislative amendments be made to
their respective human rights legislation. CASHRA has requested that this
resolution be referenced in Canada's report under ICESCR. The second resolution
confirms CASHRA members' commitment to using ICESCR as an interpretive tool in
the enforcement and promotion of human rights in Canada, to giving full
attention to the exercise of all aspects of their mandates and adopting policy
positions that are consistent with other international instruments ratified by
You asked me to identify some of the challenges the commission faces in
discharging its human rights responsibilities, and I think those challenges can
best be summed up by using the framework of the Paris Principles. In 1991, the
first United Nations international workshop on the role of the human rights
institutions was held in Paris, resulting in what has come to be known as the
Paris Principles. These principles, which Canada played a critical role in
developing, were endorsed by the United Nations Commission on Human Rights in
1992 and the General Assembly in 1993. The Paris Principles set out guidelines
for what is required for an effective and well-functioning human rights
institution. The principles declared that, in order to be effective, human
rights institutions require as broad a mandate as possible.
In Ontario, section 29 of our code grants the commission broad powers.
Nevertheless, we are sometimes limited in our ability to apply those powers to a
human rights issue by virtue of limitations in other aspects of our mandate. Our
code is not structured around protections against discrimination based purely on
social and economic status, and the only ground that directly relates to
economic status is the ground of being in receipt of public assistance. This
ground applies only to discrimination in housing.
Another example would be the restricted definition of age for the purpose of
discrimination in employment.
While international bodies have recognized that countries should expedite the
trend toward the elimination of mandatory retirement, and should ensure adequate
protection against age discrimination for older workers, in Ontario we cannot
receive a complaint of age discrimination from workers over the age of 65.
The Paris Principles acknowledged that an effective human rights institution is
capable of acting independently of govern ment. This includes legal, operational
and financial autonomy. Human rights commissions are creatures of the state and
funded by the state, and they must be accountable to the state for their
activities. Pure independence is simply not possible.
However, while the establishment of every institution will necessitate the
imposition of certain limitations, restrictions on independence should not
interfere with the ability of an institution to discharge its responsibility
Finally, I wish to speak to the operational efficiency and capacity of human
rights commissions. It is no secret that human rights commissions in Canada have
been criticized for being too slow and inefficient and being incapable of
tackling systemic or sectoral discrimination. Human rights commission have been
working hard to address this concern, and I believe that that we have made
significant strides, given current frameworks and resources.
The improvements we have seen in Ontario can be attributed to a number of
successful strategies. The restructuring performance management, the new
business processes, such as mediation and centralized enquiries, and the use of
cutting edge information and telecommunications technologies, have led to
successes recog nized by the public across government and in the media. These
achievements in case management enable the commission to better address other
areas of its mandate, such as the promotion of human rights and public
Although there have been recent improvements, we must continue to ensure that
our methods of work are as efficient and effective as possible. In addition, we
should be open to considering alternative processes for adjudicating human
rights, such as limited direct access to adjudication without tying up the
commission resources and conducting investigations in very straightforward cases
where the issues are clear.
It is clear that, while human rights commissions have an important role to play
in the implementation of domestic and international human rights, there are many
other mechanisms and entities that must be involved. These would include
parliamen tarians, other government bodies or agencies, the judiciary, the civil
society organizations and individuals themselves.
Therefore, anything that this committee can do to educate or build capacity
within any of these organizations or entities would be of great assistance. In
addition, anything this committee can do to facilitate coordination between
federal and provincial human rights agencies, such as supporting the work of the
Canadian Association of Statutory Human Rights Agencies, would be very welcome.
I am sure that the excellent process that you have implemented will result in
the identification of strategies that we can pursue in the future. Thank you.
Senator Poy: Mr. Norton, my main interests are social and economic
rights. You mentioned that groups or individuals can complain to the commission.
Have the organizations of the homeless in Ontario ever come to the commission to
complain about discrimination against them? Has the commission ever approached
the government on their behalf?
Mr. Norton: In response to your first question, I do not know of any
instance where, as you describe it, the organizations for the homeless have
approached the commission.
Senator Poy: They demonstrate - they are very vocal.
Mr. Norton: I am not aware that the OCAP, to which you refer, has come to
the commission with any specific complaint or request. There are a number of
other agencies dealing with people who have housing difficulties and people who
may not have legal counsel that come to the commission on a regular basis. In
fact, some of the leading cases over the last few years, for example, one we
referred to as the Bramalea case, have dealt with the issue of
discrimination against people based upon the application of
income-to-rental-cost ratios that are artificially applied.
We have had some success in addressing those issues before tribunals and the
courts. We have made submissions to government and I have appeared before the
committee of the legislature on the tenant legislation. The most recent
amendments were perhaps three years ago, and we made submissions on behalf of
the commission in opposition to some of the proposals that were included in the
legislation. As a result of that, there were some minor changes made that
accommodated some of our concerns, but not all of them.
The Chairman: Mr. Norton, you have put together quite an extensive
manual, if I recall, on advancing economic and social and cultural rights
relevant to your commission. Is that available to us? Would there be information
in the manual that you think we should address?
Mr. Norton: We intended to publish what we have, however, we encountered
budgetary problems because of the volume of material that requires translation.
We are working on a summary of those proceedings, which will be on our Web site
soon. If you would be willing to accept them in their current form, we would be
pleased to make them available to you.
The Chairman: I would appreciate that.
Senator Finestone: Would you please describe CASHRA? Who comprises that
group and what is its mandate?
Mr. Norton: CASHRA is the Canadian Association of Statutory Human Rights
Agencies. I cannot tell you when it was founded - it predates me in the field of
human rights. It is composed of the Canadian Human Rights Commission, each of
the 10 provincial commissions and the three territorial commis sions. It
provides an exchange of information. There are regular annual meetings where the
representatives convene in one location. We have frequent teleconferences
between the annual meetings.
The initiatives that CASHRA has taken have been in a variety of forms. I made
reference to resolutions. At the annual meeting, there are often resolutions
brought forward by one of the member agencies, or perhaps by more than one. If
adopted by CASHRA, those are shared with the heads of each of our governments
across the country, along with whatever the recommendations might be.
CASHRA, on several occasions, has sought intervener status on cases going before
the Supreme Court, where the issues relate to human rights and are deemed to be
of sufficient importance that CASHRA feels it ought to have a voice. CASHRA has
limited resources and is basically funded by levying a fee upon each member
agency that is based roughly upon the population that each agency represents.
CASHRA has been fortunate to receive some outstanding counsel to take on cases
on a pro bono basis when we appear before the Supreme Court of Canada. Some of
those cases have been done by law professors or, in some cases, by counsel from
larger law firms that are prepared to do this work on a pro bono basis.
Senator Finestone: What is your relationship with the committees that are
known structurally as the federal-provincial- territorial, or FPT, committees?
I read your proposed resolutions on social conditions and on social and economic
rights. They are intriguing, but what position does the federal government take?
You say that you had meetings with the federal, provincial and territorial
commissioners and members of those organizations that deal with human rights. Do
the federal representatives come in and take a national perspec tive? Do they
take a position based on their directive from their minister? How does that
I would like to ask you about Senator Cohen's resolution on social condition.
Did that amendment not go through the house? If so, how did that impact on your
Mr. Norton: By the FPT committee, are your referring to the continuing
committee by any chance?
Senator Finestone: Yes.
Mr. Norton: I was not familiar with the FPT acronym. Let me clarify that
CASHRA does not have government representatives, however, they have human rights
agency representatives. The ministries would normally not have delegates to
CASHRA. Of late, a number of departmental representatives have come along as
observers, but they do take any position on behalf of any government there.
Our relationship with the continuing committee is very much up in the air at the
Senator Finestone: Is it a bit tenuous?
Mr. Norton: Yes. CASHRA members are not sure where they stand with
respect to the continuing committee for a number of reasons, not least of which
is that the Human Rights Commissions and agencies, by definition under
international covenants, are to be arm's length from government. The continuing
committee tends to be preparing government responses to be conveyed ultimately
to the United Nations.
There has been participation from human rights agencies in the past, but largely
in an advisory capacity to the ministries that are representing the government
of the jurisdiction. The continuing committee has raised the question over the
last couple of years as to what status we have and whether we should be
participating. That has not yet been resolved.
Senator Finestone: A written answer would be fine for this question if
you cannot answer it now. The nature of the work that you describe as
implementing the Code of Human Rights of Ontario would go beyond discrimination
and harassment; it would include the enforcement of policies and of education.
We learned that many Supreme Court decisions look at questions of labour law,
sexual harassment law and child protection law, based on international covenants
or treaties that Canada has signed.
When the Ontario Human Rights Commission looks at a case, can it go beyond
discrimination and harassment to the enforce ment of policy and education as
enunciated under international human rights law?
Mr. Norton: The international human rights law is not binding in the
sense that domestic law is.
Senator Finestone: You could say that is influencing, though.
Mr. Norton: That is exactly how we would use it in the development of
policy. Policy for the mission is not quite like government policy. The policy
does not give rise to a particular program. Rather the policy assists in the
interpretation of how to apply the code to a set of circumstances. In developing
that kind of policy, we would incorporate the use of international instruments
as part of the argument.
Senator Finestone: Discrimination against women in the labour force has
recently cost the Canadian government about $30 billion. That was an important
decision and I was glad of it, but can you make such a decision?
Mr. Norton: Discrimination against women in the workforce is part of the
code. We would not need to rely upon international instruments to deal with
We must deal also with things such as economic, social and cultural rights. We
have developed a litigation strategy to select certain cases on which to test
the argument of international instruments before tribunals and the courts. One
such case would be the provision of the Child Tax Credit by the federal
government. Provinces, in many instances, claw that back from individuals who
are in receipt of public assistance or welfare. However, someone with an
equivalent earned income would not have that amount clawed back.
We saw that as a discriminatory impact upon persons in receipt of public
assistance, one that could impact on their capacity to afford reasonable
housing. In that kind of case, although we do not have express provisions in our
code, we would use the housing discrimination provisions and incorporate the
interna tional covenants to bolster our arguments.
Senator Wilson: You stated that CASHRA supported the inclusion of social
condition in human rights legislation and that, within 90 days, you were to
communicate with all governments to ask them to include it.
That resolution passed in March. We are now almost in November. Can you give us
an update on this?
Mr. Norton: I am not the president of CASHRA this year. We have not heard
back from anyone, at least as far as it has been communicated to me. I expect we
have received acknowledge ments but nothing more.
Senator Wilson: Do you mean that they will only acknowl edge that they
received the letter and have made note of the information?
Mr. Norton: Yes. I suspect that is the case.
The Chairman: The president of CASHRA will be here later and we can
follow up at that time.
Senator Wilson: You mentioned there are some restrictions on what you can
do under the employment age restriction of 65. Who are you working with to
change that? Are you working with any parliamentarians so that someone in the
system is informed, someone who may be able to help?
Mr. Norton: Our particular restrictions are in Ontario legislation. We
have been working with the Ontario government and trying to persuade them to
move on it. That is true to differing degrees in all of the other provinces with
the exception of Quebec, Manitoba and New Brunswick. I believe those three
provinces have passed legislation to prohibit arbitrary or mandatory retirement
at age 65.
Senator Wilson: In other words, you are dealing with that issue
Mr. Norton: Yes. Our documents have been used in other jurisdictions and
have been cited in some court cases, one just within the last week in British
Columbia. The British Columbia court cited the work we had done in Ontario as a
source of information.
It suggested that it might be time for the Supreme Court of Canada to revisit
its decision on mandatory retirement. Whether the Supreme Court of Canada will
listen to the British Columbia court remains to be seen.
Senator Joyal: Mr. Norton, I noted that you were the president of the
Canadian Human Rights Tribunal. In that capacity and in your capacity as Chief
Commissioner of the Ontario Human Rights Commission, what kind of weight do you
put on the international covenants that Canada has ratified but not implem ented
formally in its internal legislation? This committee is wrestling with this
issue. We would be interested to know from someone like you, who has had
experience arbitrating, recom mending and deciding, the kind of importance you
give, in practice, to the international instruments that Canada is ratifying.
Mr. Norton: I am not sure how I would quantify that. Generally, it ought
to be very persuasive for any tribunal or for any court, if our country has gone
into the international forum and signed these covenants indicating it is
committed to the elimination of certain kinds of discrimination. If it has not
been incorporated directly into domestic law through legislation, it does not
have the same binding effect, but as an adjudicator, I would certainly accept
arguments about the persuasiveness of moving forward in those areas because the
nation has indicated a willingness. For example, in the area of children's
rights, we have made commitments internationally that we have not incorporated
domestically. In the areas of economic, social and cultural rights, we have made
international commitments that we have not translated into domestic law.
There are limits as to how far you can go with that. We cannot simply say that
because this is what the international law says, we will make it domestic law.
It does not work that way.
The courts can go further than tribunals in this respect. We have seen a number
of instances in recent years with the Supreme Court of Canada. I could put
together the cases where that has been done and forward them to you in follow-up
Senator Joyal: That would be helpful because we know of some cases that
went to court. We know about the labour case with Chief Justice Dickson and the
Public Service Employee Relations Act, 1987, and about the Baker immigration
case where Justice Heureux-Dubé made a direct reference to the importance of
international instruments and covenants to interpret the disposition of the
My reflection on this would be how those principles that have been recognized in
the Supreme Court find their way into the administrative court. On a day-to-day
basis, are you in a position in Ontario, for instance, when you do an
investigation or an arbitration, to not give full effect to a provision by an
international instrument because it has not been implemented into the domestic
legislation? In terms of interpreting, what if the international instruments
were helpful to understand how to interpret or determine the extent and scope of
protection that we have under provincial or federal legislation?
Mr. Norton: Our policies at the provincial level in Ontario are regularly
under amendment to reflect the most recent decisions of the Supreme Court. If
the Supreme Court reflects in its reasons for a particular outcome of a case an
argument that incorporates some reference to the international instruments, we
would reflect that in our policies through amendments of the policies that are
guides in terms of application of the code within Ontario. Likewise, if it had
an impact upon the interpretation our staff ought to give to our domestic law
within Ontario, we would make appropriate amendments to what we refer to as our
administrative manual, which sets out for the staff all the information they
ought to apply to the interpretation of the code in given fact situations.
Senator Joyal: Would you be kind enough to give us additional information
in that context? It would be helpful in our future work.
Mr. Norton: If they are not already available, a whole host of documents
will soon be available from the legal conference we had on the application of
international covenants to domestic law. They are not yet translated, but if you
would accept them as they are, we would be glad to send them.
The Chairman: Thank you for sharing the information and giving us an
insight as to how the commissions deal with the international obligations. It
was a good education for us. The application of international law to our
national systems is, apparently, the same thing you are struggling with, and
your insights and suggestions as to what you are doing may be helpful for our
The committee adjourned.