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FAAE Committee Report

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Canada’s Universal Periodic Review
and Beyond—Upholding Canada’s International Reputation as a Global Leader in the field of Human Rights

Introduction

On April 22, 2009, the Subcommittee on International Human Rights of the House of Commons Standing Committee on Foreign Affairs and International Development (hereafter the Subcommittee) agreed to devote two meetings to a review of the recommendations put forth to Canada by the United Nations (UN) Human Rights Council (HRC) Universal Periodic Review (UPR). The Subcommittee heard from officials from the Department of Canadian Heritage (PCH), the Department of Foreign Affairs and International Trade (DFAIT) as well as from representatives of civil society organizations in order to gain an appreciation of how the Government of Canada conducted its first UPR process. A number of concerns were raised by civil society organizations with respect to how they were consulted in the process and this was acknowledged by government officials. However, in its hearings, the Subcommittee was told that the concerns brought forward by civil society went beyond just the UPR process and have been persistent problems in Canada under successive governments. These concerns include Canada’s track record of monitoring and reporting on human rights in the country, as well as its record of implementing and enforcing its international human rights obligations domestically.

As a result, the Subcommittee then agreed to hear from some of the same witnesses and an additional witness on how the government should proceed with the implementation of the UPR recommendations and on the improvements that must be made to Canada’s system of monitoring, reporting, implementing and enforcing its human rights obligations. The Subcommittee agrees to report the following findings and recommendations to the House of Commons Standing Committee on Foreign Affairs and International Development.

The Subcommittee is convinced that a better system is required and achievable. In addition, present and future governments of Canada must provide more accountability to Canadians for the state of human rights in this country. The Subcommittee firmly believes that if Canada wants to remain a leader in human rights internationally, then Canada must take this opportunity, particularly following its first UPR, to address the challenges it has been facing in this area for years. According to several witnesses, Canada’s international reputation is at stake.[1]

It is not the Subcommittee’s intention to repeat or summarize all of what was said by the witnesses in this report. Their testimony is readily available in the public domain. This report focuses on the aspects of witness testimony that concerned Members the most; issues that Members found instructive, from which to formulate appropriate recommendations to the government.

The report has three main sections. The first section deals with the UPR process as well as with Canada’s other reporting obligations in the UN system. The second section focuses on the concerns raised by a number of parties regarding the way in which Canada monitors and reports on its domestic human rights situation. The third section focuses on concerns raised regarding the way in which Canada implements and enforces its international human rights obligations domestically.

Part I: Canada’s Responsibilities Under the Universal Periodic Review Process and Other United Nations Human Rights Reviews

The UPR was created on March 15, 2006 through United Nations General Assembly Resolution 60/251. The UPR process was viewed by many as an important aspect of the reforms at the United Nations that culminated in the creation of the UN HRC. In fact, as mentioned by several witnesses appearing before the Subcommittee, Canada was a champion in the effort to establish the new review process. It is for this reason that Canada must set the best possible example for the international community on how to approach the review process, both during the UPR and afterwards.

UN Resolution 60/251 created a mechanism to allow for the objective and full review of “the fulfillment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all States...”[2] As part of the process, all members states of the UN will be reviewed by a panel composed of other member states in a four-year cycle. Canada had its review before the UPR panel on February 3, 2009 and presented its response to the UPR in June 2009. During the UPR process, the UN Human Rights Council Working Group on the UPR issued a report containing 68 recommendations relating to Canada’s human rights obligations, of which Canada has accepted the majority. However, witnesses told the Subcommittee that many of the recommendations in the report are not new concerns, but rather have been put before Canada in the past.[3]

The UPR process is not, however, the only human rights review or reporting process at the UN or internationally. As Alex Neve, Secretary-General for Amnesty International Canada, noted, there are ongoing obligations within many international human rights treaties to which Canada is a party to provide progress reports, generally every four years, to expert committees established to monitor compliance with the treaties.[4] As well, a few of the specific international human rights treaties provide mechanisms for individuals to make complaints about rights violations to committees set up under the treaties, which can issue recommendations to the violating country if deemed necessary. Finally, there are also experts appointed by the UN HRC with mandates to monitor specific human rights topics. These UN experts undertake in-depth studies of a situation in a particular country and issue reports with recommendations for that country to improve.

The UPR process is, however, unique because it provides a mechanism for every country to have its human rights record reviewed and critiqued by its peers. Countries such as Canada, who have been champions of the UPR from the start, must therefore ensure that they demonstrate leadership as the reviews proceed. Adèle Dion, Director General of the Human Rights and Democracy Bureau at DFAIT, explained Canada’s commitment to the UPR process as follows:

Canada approached its own review with the goal of providing a model for transparency and accountability in addressing national human rights issues. The UPR was an important opportunity for us to look at our own record and benefit from the views and perspectives of other states participating in the dialogue. Canada welcomed the constructive input of other states.[5]

The Subcommittee believes that the internal process undertaken by Canada with regard to the United Nations UPR, both during and after, is an important indication of how Canada has proceeded with respect to its international human rights reporting more generally. Furthermore, the new mechanisms that are currently in development to implement the recommendations of the UPR and the effective implementation of Canada’s international human rights obligations, are integral to the success of the UPR process.

Part II: Monitoring and Reporting on the Human Rights Situation in Canada: Concerns and Recommendations

1. Lack of Effective Consultation Between Government and Civil Society

It is clear from what the Subcommittee heard that civil society organizations have become increasingly frustrated by what appears to be a lack of effective and continuous consultation by successive governments of Canada with respect to human rights monitoring and reporting. During the UPR process, for example, civil society was invited to contribute after the Canadian report was submitted to the UN HRC in December 2008.[6] Canadian government officials acknowledged this in their testimony, stating that “some civil society groups were disappointed with the timing and nature of the engagement”[7] and citing the federal and Quebec elections during that time as the reason for the postponement of consultations. Sessions between government and civil society did take place in January 2009, albeit after Canada’s report had been submitted. After Canada’s February 2009 appearance before the Human Rights Council where the government had the opportunity to present its report on Canada’s human rights record, the government followed up by engaging with “federal departments, provinces, and territories as well as civil society and aboriginal organizations in ... an extremely short amount of time”[8] in preparation for its final response to the HRC.

The Subcommittee recognizes and is sympathetic to the fact that the UPR was a new process and that Canada’s federal division of powers posed its challenges, since human rights in Canada is a multi-jurisdictional responsibility, which requires PCH to engage with 14 governments and their relevant departments throughout the many reporting processes Canada is subject to under the international human rights treaties it is party to. However, the fact that often times the government ends up “consulting civil society post facto”[9] indicates that there are gaps which leave Canada’s civil society organizations, including aboriginal organizations, unable to adequately contribute to the UPR process, a key component of Canada’s human rights dialogue. Further, Canada has had over three decades of experience reporting to UN human rights treaty-based bodies; however, it appears that governments have yet to develop an effective reporting system that includes civil society consultation—a fact that leaves civil society representatives immensely discontent with the current system and ultimately hinders Canada’s ability to effectively report on its human rights record which, in turn, negatively impacts its ability to implement its international human rights obligations.

Although this was Canada’s first UPR process, the review did not present Canada with any new human rights issues. According to Lucie Lamarche, Professor of Law at the University of Ottawa, the UPR process involved “submitting information that had already been collected, and recommendations that had already been made by expert, independent treaty oversight organs, for review by peers.”[10] Therefore, if there had already been a mechanism in place to ensure ongoing civil society consultations, time pressures or elections would likely not have prevented the government from including civil society representatives in the reporting phase of the UPR process. In fact, a number of Canada’s peers recommended that Canada reform its system; a recommendation which Canada accepted. However, even a few months after the UPR, it was clear that the reporting process had still not been improved. To illustrate this point, Kathy Vandergrift, Chairperson of the Board of Directors for the Canadian Coalition for the Rights of Children, stated:

The experience of children’s rights, I think, is instructive for this committee of the need for reform. Canada submitted its combined third and fourth reports on children’s rights on November 20 [2009], nine months late, without any public consultation, contrary to the requirements under the convention itself and the norm in most developed countries. This was after Canada committed to improvement under the UPR.[11]

The Continuing Committee of Officials on Human Rights (hereafter the Continuing Committee) constitutes one of the principal federal government mechanisms in place to coordinate, with the provinces and territories, the monitoring, reporting and implementation of Canada’s human rights obligations. This Continuing Committee is chaired by PCH and has a specific mandate. According to Tom Scrimger, Assistant Deputy Minister of Citizenship and Heritage at PCH, “the committee is not a decision-making body, nor can the committee direct any department or jurisdiction on measures it should adopt.”[12] It is, however, “a forum for governments to share information on measures being implemented in their jurisdictions that relate to Canada’s international obligations.” Mr. Scrimger believes that the Continuing Committee is “effective at fulfilling its current mandate” as it has “supported Canada in ratifying six international human rights treaties with provincial and territorial support.”[13]

At the same time, however, the Continuing Committee has no mandate to consult with civil society, nor does it have a mandate to inform the public of the work it is doing.[14] This is a matter of great frustration for civil society groups, a fact that has not gone unnoticed by departmental officials: “...we very clearly hear the message that civil society wants to have, is looking for, a larger role. What we, I think, are doing in our work now is developing options for ministers to consider on how we enlarge or how we potentially have a larger role.”[15]

According to the PCH, it is currently considering a number of options to make the entire system much more effective and inclusive of civil society. This may involve reforming the Continuing Committee’s mandate, role and operations or developing some new mechanisms.[16]

It seems that the UPR process may have brought many of these longstanding issues to the forefront of discussions among those in government who are responsible for human rights in Canada. The Subcommittee hopes that these discussions bring about the necessary changes. So far, it appears as though the UPR process may have already brought about some interdepartmental changes. When officials from PCH appeared before the Subcommittee in 2009, they distributed two documents which outlined how it proceeded in coordinating the federal government’s response to the UPR recommendations. These documents can be found in Appendix A and B of this report.

Appendix A presents a diagram which shows the timeline and flow of information among the many stakeholders who were involved in informing Canada’s response to the UPR. As the diagram shows, the Continuing Committee did not communicate with civil society but was the vehicle that linked the federal government with its provincial and territorial partners. The committee that did engage with civil society groups was a federal interdepartmental committee consisting of officials from PCH, DFAIT and the Department of Justice. As explained by Diane Fulford, Assistant Deputy Minister at PCH, in order to facilitate the federal government’s consideration of the UPR’s 68 recommendations to Canada: “...we clustered the recommendations according to themes. Each cluster was attributed to a lead department, which in turn has worked with colleagues from other relevant federal departments in considering the recommendations and providing input into the official response.”[17] According to Ms. Fulford, the UPR has brought “a very new horizontal approach to the issue of human rights.”[18]

Despite the fact that PCH developed a web-based consultation with a “dedicated e-mail address,” and held two “face-to-face sessions,” one with civil society and the other with aboriginal organizations,[19] these groups still remain dissatisfied by the nature of engagement. As stated by Professor Lamarche: “I think the Canadian government has always promoted the idea that the moment a report is transmitted to civil society, it has been consulted. Consultation means that you have to be informed of what’s at stake and aware of the facts, and can come together on conclusions.”[20] According to witnesses, effective consultation also means engagement with the Canadian public at large. For example, Alex Neve of Amnesty International Canada argued that consultation is:

...something that is truly grassroots, something that is across the country something that is not only about, you know, let’s get to the experts and make sure we’ve got their input when figuring out the final version of the report. It’s about truly reaching Canadians to engage them about these important principles, get their viewpoint, get their aspirations, get their recommendations as a key piece of this.[21]

Leilani Farha, Executive Director of the Centre for Equality Rights in Accommodation, concurred that government can learn a lot more about the state of human rights in this country through ongoing, widespread engagement and consultation with the Canadian public, a practice that civil society groups do not necessarily have the funds or institutional support to do continually on their own. In describing her own experience, Ms. Farha stated that: “I met groups and organizations and encountered issues that I didn’t know were going on, and I’m a human rights advocate; I get around a fair bit in this country. So I think there is something to be said for just doing that.”[22]

In addition, public and civil society consultations should not be limited just to the federal government. According to Professor Lamarche, “[Quebec] was the first Canadian province that decided to show up in Geneva and share the experience of constructive dialogue over the monitoring of human rights treaties.”[23] Since then, other provinces have followed suit, a reflection of the fact that many of Canada’s human rights obligations fall under provincial jurisdiction. However, according to same witness, the Quebec government apparently “did not consult with its own civil society before the UPR, which we can assume is less complex than consulting with representatives from all over Canada.”[24] In fact, civil society in Quebec had to “insist on having a meeting after February when the delegation was back from Geneva.”[25] She further argued that if provinces and territories are participating in international human rights reporting and review processes, then they have the responsibility for consulting with their public and civil society organizations as well.[26]

Finally, the Subcommittee is concerned that on a number of occasions, it heard the words “confrontational,” and “adversarial,” from representatives of civil society groups describing their interaction with government departments over human rights in Canada.[27] The Subcommittee firmly believes that the current system of federal-provincial-territorial consultations with civil society is ineffective and hinders the federal government’s efforts to monitor and report on Canada’s human rights record, let alone implement our human rights obligations domestically. The Subcommittee recognizes that PCH acknowledges the gaps in the system and urges the department and its government partners to work, on a priority basis, to strengthen cooperation with other federal departments and with provincial and territorial counterparts, and to improve how it consults with civil society organizations. According to Professor Lamarche, countries like South Africa and Brazil have permanent and continuous consultation processes between government departments and civil society groups. This ensures that there is no “big rush before producing any report whatsoever,” and no waiting until all parties are in Geneva “to have this confrontational moment”.[28] The Subcommittee calls on the government to draw on best practices in other countries as it strengthens cooperation and consultation mechanisms in human rights monitoring and reporting.

RECOMMENDATION 1:

That the Government of Canada work on a priority basis to improve the system currently in place for monitoring, reporting, implementing and enforcing Canada’s international human rights obligations and that these reforms take place transparently and in consultation with civil society, aboriginal groups, and institutions whether federal, provincial or territorial.

RECOMMENDATION 2:

That the Government of Canada expand the mandate of the Continuing Committee of Officials on Human Rights to include ongoing consultations with civil society and aboriginal organizations, and that its meeting agendas, benchmarks and goals be made available to the public.

RECOMMENDATION 3:

That the Government of Canada mandate the Continuing Committee of Officials on Human Rights to regularly report its ongoing process to the Standing Committee on Foreign Affairs and International Development via reports or meetings, in camera when necessary, with the Subcommittee on International Human Rights.

2. Lack of Government Transparency

The Subcommittee believes that an effective, permanent and continuous consultation process between the federal government and civil society organizations is fundamentally linked to transparency. Who is the federal government accountable to in terms of Canada’s human rights record? Witnesses before the Subcommittee argued that the federal government, as well as its provincial and territorial partners, should be accountable to the Canadian public as a whole as well as to civil society groups who represent the more vulnerable Canadians—those whose human rights are actually being violated, for example indigenous women in Canada who continue to experience “alarming and shocking levels of violence and discrimination.”[29]

Professor Lamarche stated that “...there is documentation to show that Quebec’s position is that it’s accountable only to the Assemblée nationale, and it’s piggybacking on federal decisions over the follow-up to the UPR... I know that other provinces and territories take the same position on that.”[30] According to the same witness, there is a ping-pong game that has been going on for two decades with respect to accountability that needs to stop, and this has to do with federal, provincial and territorial governments playing the ‘federalism’ card when it suits them. She stated that:

When they’re in Geneva, the federal government makes the point—and rightly so—of saying it is a provincial field of jurisdiction. When they come back home, the provinces tell you it’s the treaty-making power, and the federal government represents the state, so there’s not much they can do at the provincial level. Theoretically it doesn’t keep the road, and politically it’s not exactly productive.[31]

In terms of monitoring and reporting, questions arose regarding what appeared to be a deficiency in the reporting the government provides to various UN bodies regarding Canada’s human rights record. According to Ms. Vandergrift, with respect to children’s rights, when Canada was reviewed by the UN Convention on the Rights of the Child Committee for the first and second time, both the Committee and civil society groups emphasized the need for Canada to include “information and analysis of the reality of children in Canada” in its reports.[32] Regarding Canada’s most recent report, she stated that:

While the government’s report listed several initiatives for children, it contained very little data on the actual situation of children in Canada, or the outcomes of government programs. It is dubbed the “missing pieces report” within our community.[33]

When her organization expressed their willingness to help the government’s interdepartmental committee responsible for children’s rights in Canada to provide the UN body with a better report, there was “no engagement beyond a letter asking what topics the report should cover.”[34] In her opinion, such a report produced with no consultations, before or after, undermines the credibility of that report. She further stated that:

...the current report does not reference the specific provisions of the convention, making it impossible for you as MPs, or the Canadian public, to really know whether Canada is meeting its obligations or not. In short, if you want to know how well Canada’s children are doing, the last place you will go to is this report. It should be the first place we go.[35]

Although Ms. Vandergrift’s organization will attempt to collect data among its coalition members as it prepares a response to the government’s report, it does not have access to all the data that federal-provincial-territorial governments have access to. In fact, she believes that governments are sharing less information amongst each other than in previous years, which ultimately hinders Canada’s reporting abilities.[36] In terms of children’s rights, in 2000 there was a national children’s agenda supported by federal-provincial agreements on children. However, these agreements were changed in 2006 “such that there’s less incentive for provinces to submit data to the federal government.”[37] Ms. Vandergrift further noted that Canada’s most recent report on the situation of children in the country should have contained a great deal more data—data that does exist—than what was actually presented. On the same topic, PCH official Tom Scrimger told the Subcommittee that the department is currently “looking at data requirements for treaties.”[38]

Some witnesses appearing before the Subcommittee suggested that the federal government adopt rights-based mechanisms[39] with respect to monitoring and reporting human rights in Canada. This would require government officials to see themselves as duty-bearers[40] who have obligations under international law to protect and promote human rights in Canada. All Canadians are rights-holders[41] who, under international law, are entitled to their human rights without prejudice. According to the UN, rights‑based monitoring involves:

...monitoring the decisions, actions, and conduct of political, economic, social and institutional systems and actors that are expected to contribute to the realisation of rights; monitoring the impact of measures that are expected to contribute to the progressive realisation of human rights, and assessing final impacts to determine whether or not human rights have been increasingly respected and protected, and are being fulfilled in practice.[42]

Sharing and disseminating this information would be an example of rights-based reporting. According to Ms. Vandergrift, “...the results of rights-based reporting by some provincial children’s advocates are beginning to show real benefits in improved outcomes.”[43] She believes that the federal government can learn from these provinces.

RECOMMENDATION 4:

That the Government of Canada develop a rights-based approach to monitoring and reporting on Canada’s human rights record.

RECOMMENDATION 5:

That the Government of Canada, in responding to reports received from UN treaty bodies and human rights review bodies, ensure that its responses are based on government program outcomes and include all available data that can legally be shared with the public.

Part III: Implementing Canada’s Human Rights Obligations: Concerns and Recommendations

3. Lack of Effective Consultation Between Government and Civil Society

Witnesses appearing before the Subcommittee raised concerns as to whether or not the Government of Canada has or will consult effectively with civil society organizations, including aboriginal organizations, as it implements and enforces the recommendations received through the UPR process. Mr. Neve expressed his concern of what he perceives to be a “shrinking space for human rights critique and advocacy in the country.”[44] He stated that many of the recommendations that have emerged from the recent UPR “have been raised repeatedly with Canada over the past 15 to 20 years, with far too little progress.”[45] Witnesses before the Subcommittee who represent civil society were extremely forthcoming with what issues they felt were standing in the way of effective implementation and with suggestions as to how to ensure a better approach to implementing Canada’s human rights commitments.

What spoke clearly to Subcommittee Members throughout this study, from all witnesses, including government witnesses, is the need for a better system and improved human rights mechanisms in Canada. As Ms. Vandergrift stated:

When 40 countries and over 50 non-governmental organizations agree that Canada needs to improve its system for implementing human rights agreements, it’s time for attention by our parliamentarians. We need to do better at home in order to regain international leadership in the field of human rights.[46]

All witnesses firmly stressed the importance of ongoing consultations between federal-provincial-territorial governments and civil society as a condition for effective implementation and enforcement of Canada’s human rights obligations. As noted earlier, the need for consultation has become more apparent in the context of Canada’s UPR process, where civil society groups had few, if any, meaningful opportunities to provide input into the reporting phase. The Subcommittee believes ongoing dialogue and consultation are crucial for Canada to effectively implement its international obligations. As Subcommittee members look towards the future, it is clear that better human rights mechanisms are needed in this country as Canada’s responsibility to report its human rights record to UN bodies and implement its human rights obligations are ongoing. As Professor Lamarche indicated:

Before we go back to the UPR, we’ll have to process other reports, based on the reporting timeline related to human rights treaties. The chances are that in six months we won’t necessarily be looking at the UPR any more, we’ll be raising the same points about the classical treaty system and again worrying about the fact that consultations are either late or meaningless.[47]

As mentioned earlier, witnesses suggested that consultation with civil society and aboriginal organizations needs to occur from a “grassroots” level across the country.[48] Mr. Neve suggested that one way to achieve this would be for Members of Parliament to take the initiative and distribute information about human rights and the UPR process in their constituencies, as well as holding town hall meetings to have open dialogues with the Canadian public.[49] The Subcommittee also believes that Members of Parliament should have access to the information they need to answer questions with respect to how the federal government is implementing Canada’s international human rights obligations.

The Subcommittee recognizes that there are efforts being made to improve the dialogue between the governments and civil society. The Subcommittee heard testimony from PCH officials on the subject of ongoing engagement with civil society with regards to implementation of the UPR recommendations. The Subcommittee learned from Mr. Scrimger that there are active discussions between federal departments and members of civil society to discuss the implementation of the accepted recommendations and Canada’s commitments. Mr. Scrimger further stated that: “Canadian Heritage is also doing research on model practices, both domestically and internationally, on civil society consultations.”[50]

The Subcommittee is encouraged that there are planned meetings between government and civil society organizations, and that Canada recognizes the importance of engaging with civil society and aboriginal organizations to be “an important aspect of the UPR and the follow-up consideration of the UPR commitments”. [51] Ensuring that there is a dialogue across the country on human rights issues will enable a consensus to develop with regard to the implementation of Canada’s human rights obligations as well as the prioritization and promotion of human rights domestically.

RECOMMENDATION 6:

That the Government of Canada ensure that the Universal Periodic Review process be open to input from relevant NGOs and community organizations.

4. Lack of Government Transparency

Witnesses before the Subcommittee expressed their frustration with respect to a lack of government accountability to the public and to Canadian civil society organizations on matters of human rights implementation. This issue is of particular importance as federal-provincial-territorial governments begin to discuss how to implement and enforce the recommendations coming out of the UPR process. Various UN bodies have, in fact, “called on Canada repeatedly to develop a better approach”[52] to the implementation of its international human rights obligations. The Subcommittee views the current UPR follow-up timeframe as an opportunity for Canada to improve its implementation process and develop better mechanisms for accountability.

The Subcommittee heard that transparency within the human rights mechanisms currently in place within federal-provincial-territorial governments must be improved. According to witnesses, the “secrecy” of the current processes and the lack of information sharing “flies in the face of what human rights and good government stand for.” [53] The mechanisms in place have been described as “extremely opaque”[54] and navigating the system is difficult even for those engaged in areas of human rights advocacy on a consistent basis. In fact, identifying who is responsible and ultimately accountable for human rights concerns within the government systems has proven to be a continuous source of frustration for members of civil society.

As mentioned earlier, challenges arise due to the federal structure of Canada. According to several witnesses, this has caused considerable problems for the implementation of Canada’s international human rights obligations. Professor Lamarche described it as a “hiding place with two doors” where the provinces are able to state their preferences regarding which international obligations are ratified and not having to explain why they are not in compliance with Canada’s obligations.[55] An example brought up by a number of witnesses was the issue surrounding the Optional Protocol to the Convention against Torture, a treaty which Canada has not ratified. According to Mr. Neve, it has not been made clear to the Canadian public or civil society as to why Canada has not signed the agreement. Although he indicated that there was speculation that the provinces have concerns about inspections of their prisons, no information has been made public and therefore there has been no opportunity for engagement with the Canadian public on the topic.[56] The Subcommittee believes that there is a need for a more effective approach to implementing international human rights obligations within a federal state so that Canadians can hold all orders of government accountable for their role in implementing Canada’s international human rights obligations.

The challenges presented by Canada’s federal system with respect to human rights implementation provide an additional reason why civil society groups want access to the Continuing Committee of Officials on Human Rights. As Mr. Neve argued, for 30 years, successive federal governments have pointed to this Committee “as the vehicle that coordinates and ensures implementation among all orders of government.”[57] However, he also told the Subcommittee that the Continuing Committee is comprised of “mid-level officials who generally have no decision-making authority with respect to human rights issues which are often complex and politically charged.” Further, “the Continuing Committee carries out all its work in absolute and total secrecy, declining and refusing to even release its agenda to the public.”[58]

The Subcommittee is concerned about this lack of information sharing, a principal method of ensuring accountability and transparency, with respect to how Canada should implement its human rights obligations. Several witnesses suggested that if the mandate of the Continuing Committee were changed to include a more open process, this would increase the transparency of the government’s human rights mechanisms.[59] Providing access to information about the Continuing Committee, its business and its membership, and providing civil society with the ability to communicate and engage with members of the Continuing Committee, may prove to be more effective tools for the implementation of Canada’s human rights obligations.

PCH official, Mr. Scrimger, in referring to the Continuing Committee, indicated that there is a desire to develop a better mechanism for consulting with civil society as well as ensuring that interested parties are kept up to date on all the steps taken to implement the UPR recommendations. Furthermore, he mentioned that changing the mandate of the Continuing Committee from an information-sharing body to a body with an expanded role to engage civil society is being considered, although it will be a difficult task and is out of the Department’s control.[60] Any changes to the Continuing Committee would require a change in its mandate. According to Mr. Scrimger:

The current Continuing Committee’s mandate is one specifically given to us by all ministers involved in the process. It is something that our minister would have to bring back to all of his colleagues, because it is a federal, provincial, and territorial mechanism.[61]

The Subcommittee believes that information must also be shared regarding the process the government is using to implement Canada’s human rights obligations. So far, it appears that members of the Canadian public and civil society groups are kept in the dark with respect to any progress that is being made with implementation. Witnesses described their efforts in seeking this information and attempting to contribute to discussions on these policy issues as trying to navigate the “labyrinth of federalism”. It appears that members of civil society are unable to “determine the status of a recommendation, which level or department of government is looking at it, if at all, whether the government has any plans to move forward with it, and if not, why not.”[62]

Mr. Scrimger (PCH) acknowledged this gap stating that: “There is not a place where you will see on a departmental website right now the recommendations and the current status, I guess, of progress against the recommendations.”[63] He further stated that “…any department that has leadership around a certain policy domain has its own processes about how it engages its stakeholders in those policy consultations and discussions” and also mentioned that there are a number of federal-provincial-territorial committees on justice, the status of women and social benefits, to name a few.[64] Mr. Scrimger did conclude that: “…yes, in many cases, I suspect, our colleagues in civil society have a number of doors right now that they have to knock on to present their views and make their recommendations around where the policy is going to go”.[65] The Subcommittee believes that the discussion of how Canada implements its human rights obligations should, first and foremost, be readily accessible to all Canadians and allow for civil society participation. Subcommittee members greatly appreciated the document it received from the Department (Appendix B) which showed which federal departments have the lead on which UPR recommendations. The Subcommittee urges all federal departments that are responsible for implementing Canada’s human rights obligations to make information concerning their progress available to the public.

According to several witnesses, an important accountability mechanism lacking in Canada is the “near total legal and policy vacuum when it comes to the standing, implementation, and enforcement of Canada’s international human rights obligations.”[66] With regards to legal concerns, Mr. Neve stated that:

International norms cannot be independently enforced in any Canadian legal proceedings. Many international obligations, though ratified at the international level, have never been specifically incorporated into Canadian law. That means that the ability to obtain remedies for violations is dramatically undermined, and it leaves enforcement of international legal obligations to the whim and uncertainty of political processes rather than to the certainty and predictability of legal process.[67]

According to Ms. Farha of the Centre for Equality Rights in Accommodation, there is currently a piece of legislation before Parliament that attempts to fill this gap with respect to adequate, accessible and affordable housing. Private Members Bill C-304, sponsored by Libby Davies, MP for Vancouver East, calls for the federal-provincial-territorial governments to “hammer out a national strategy,” in consultation with civil society and aboriginal groups, and set timelines and targets for ending homelessness in Canada. This Bill also calls for the “development of a process for the independent review of complaints about possible violations of the right to adequate housing”.[68] This Bill, which Ms. Farha describes as “model legislation”, directly responds to concerns repeatedly raised by UN treaty bodies and recently, by the UPR.[69]

In terms of policy, Ms. Vandergrift called for a rights-based approach to all federal policy formation processes. This would involve government officials conducting a rights impact assessment at the beginning of all policy formation processes—an assessment that would have the same weight as a fiscal analysis.[70] According to Ms. Vandergrift, currently, the policy formation process involves officials from the Department of Justice conducting “primarily a negative screen”.[71] In her opinion, this is not enough. What is needed, according to Ms. Vandergrift, is a proactive process to assess how policies not only contribute to the fulfillment and promotion of Canada’s human rights obligations but also reduce negative trends, such as child poverty. She further stated that “rights-based measures could help ensure that the money for which you are responsible is serving the people and the ends for which you approve it.”[72] Again, Canada can learn from the experiences of its peers within the international community. According to the same witness, the European Union has done some work to investigate how countries can do these assessments and develop indicators that can move rights-based mechanisms into the policy process.[73]

The Subcommittee does acknowledge that there have been advances made by Canada in an attempt to develop stronger accountability based on Canada’s recent experience with the UPR process. The Subcommittee was assured by Mr. Scrimger that PCH is currently working on its commitment to table the outcome of Canada’s UPR process in Parliament, a commitment which the Government of Canada hopes will be achieved before the end of the current parliamentary session.[74] Civil society witnesses suggested that all UN reports on Canada’s human rights record be tabled in Parliament as well as in provincial and territorial legislatures and that progress reports also be table on a yearly basis.

RECOMMENDATION 7:

That the Government of Canada table each UPR report concerning Canada’s human rights record and any UN treaty body reports on the same subject in Parliament and that each of these reports be referred to an appropriate parliamentary committee for study.

RECOMMENDATION 8:

That the Government of Canada, in partnership with provincial and territorial governments, create and continually update a website to provide specific information with respect to the UPR recommendations, with respect to which departments are taking the lead for each recommendation and with respect to the current status of implementation.

RECOMMENDATION 9:

That the Government of Canada publicly respond to recommendations received from all UN treaty bodies and human rights review bodies within one year of receiving their reports.

5. Lack of Political Leadership with Regard to Canada’s International Human Rights Obligations

In its hearings, the Subcommittee was told of the “unclear and disappointing political leadership at the federal level” in Canada with respect to the implementation of its international human rights obligations.[75] Several witnesses who appeared before the Subcommittee expressed their concerns regarding the lack of a unified approach to human rights within Canada at the political level. The Subcommittee believes that effective and accountable political leadership in the human rights field is fundamental to promoting human rights at the domestic and international levels and can facilitate prompt and accountable decision-making and implementation mechanisms within the federal and provincial governments.

The Department of Canadian Heritage (PCH) appears to be the federal department given the responsibility to oversee Canada’s adherence to its international human rights obligations. However, according to Mr. Neve, the department itself has “little authority or responsibility for human rights issues.”[76] The departments with more of a central role with respect to human rights issues in Canada, such as the Department of Justice or Indian and Northern Affairs, are not considered the main points of contact within the federal government.[77] There is, therefore, no one single minister in Canada who is responsible for human rights. Witnesses believe that this lack of leadership has led to many of the concerns raised in this report.

Several witnesses pointed to examples in other countries such as the United Kingdom and France where there are ministers with a specific human rights responsibility. In fact throughout Latin America and Africa, it is prevalent. As stated by Mr. Neve: “I would be hard-pressed to think of a government who doesn’t have a ministre des droits humains or a ministro de derechos humanos…It’s quite a common practice.”[78] An effective minister responsible for human rights would not only provide clear and enhanced political leadership in the area; this designation would also be symbolic of how Canada views human rights domestically and internationally.[79]

Mr. Neve pointed out that there has not been a ministerial-level meeting in Canada focused specifically on human rights for 22 years, a point which illustrates the lack of political engagement and lack of political leadership from successive governments with respect to Canada’s international human rights obligations.[80] Mr. Neve continued by suggesting that there should be a meeting of federal-provincial-territorial ministers immediately to adopt a national implementation strategy for the recommendations that came out of Canada’s UPR process. Furthermore, Mr. Neve suggested that there should be a federal deputy ministers committee established that is specifically tasked with the responsibility for human rights; its role would include close consultations with civil society organizations in order to facilitate the federal decision-making process and support the ministerial meetings.[81]

The Subcommittee also believes that there is an important role that federal parliamentary and provincial legislative committees can play in the human rights process. Mr. Neve highlighted the importance of having committees review the UPR recommendations in sessions open to the public to facilitate the dialogue with Canadians regarding the implementation of Canada’s obligations.[82] Parliamentary accountability ensures that there is accountability to the public.

RECOMMENDATION 10:

That the Government of Canada designate ministerial responsibility for:

  • the domestic implementation of Canada’s international human rights obligations;
  • for monitoring Canada’s human rights record and for reporting these findings to UN treaty bodies and human rights review bodies; and
  • that the minister be given the necessary tools and resources to carry out this mandate.

RECOMMENDATION 11:

That the Government of Canada consult its provincial and territorial counterparts on the UPR recommendations and their implementation.

RECOMMENDATION 12:

That a federal-provincial-territorial deputy ministers committee be tasked with working closely with civil society and aboriginal organizations to support and facilitate any ministerial meetings and decision-making processes.

Conclusion

The Subcommittee believes that the Government of Canada has much work to do as it builds on the experience of its first UPR process and improves the current system for monitoring, reporting on and implementing Canada’s international human rights obligations. Many of the systemic concerns raised by civil society organizations throughout the Subcommittee’s hearings are not new; neither are the human rights concerns raised by the UPR. The Subcommittee strongly believes that with the completion of Canada’s first UPR process, the time for change is now.

The Subcommittee wants to emphasize the importance of strong and clear lines of accountability for Canada’s human rights obligations that lead directly back to one individual in government. Although the Government of Canada has made the very important announcement of its intention to accept the UN Declaration on the Rights of Indigenous Peoples, and has made commitments to: increase penalties for offences against children; launch a national childhood injury prevention strategy; bring forward legislation for safe drinking water on reserves; and establish a registered disability savings plan, the Subcommittee hopes that these promises are fulfilled in a consultative, transparent, accountable and timely manner, with the appropriate support mechanisms.

Subcommittee Members listened intently to the concerns raised by its witnesses who represented civil society groups in Canada. Many would concur with Mr. Neve’s following statement:

When it comes to any country’s human rights record, the real value lies not in the treaties that have been ratified, the promises that have been made, or the review processes undertaken. The proof lies in compliance and implementation... This has long been a troubling shortcoming for Canada.[83]

The Subcommittee is troubled by this and acknowledges that many Canadians are unaware of this situation. However, these concerns have not gone unnoticed by its peers in the international community.

It is time for Canada to stop falling short on its human rights obligations and work fastidiously toward upholding its international reputation as a global leader in the field of human rights.



[1]              Kathy Vandergrift, SDIR Evidence, 40th Parliament, 3rd Session, Meeting No. 4, March 30, 2010; Alex Neve, SDIR Evidence, 40th Parliament, 2nd Session, Meeting No. 20, May 26, 2009; Samira Ahmed, SDIR Evidence, 40th Parliament, 2nd Session, Meeting No. 21, May 28, 2009.

[2]              UN Resolution 60/251, 5(e).

[3]              Alex Neve, SDIR Evidence, 40th Parliament, 2nd Session, Meeting No. 20, May 26, 2009; Lucie Lamarche, SDIR Evidence, 40th Parliament, 2nd Session, Meeting No. 21, May 28, 2009.

[4]              SDIR Evidence, 40th Parliament, 3rd Session, Meeting No. 5, April 1, 2010.

[5]              SDIR Evidence, 40th Parliament, 2nd Session, Meeting No. 20, May 26, 2009.

[6]              Lucie Lamarche, SDIR Evidence, 40th Parliament, 2nd Session, Meeting No. 21, May 28, 2009.

[7]              Diane Fulford, SDIR Evidence, 40th Parliament, 2nd Session, Meeting No. 20, May 26, 2009.

[8]              Ibid.

[9]              Lucie Lamarche, SDIR Evidence, 40th Parliament, 2nd Session, Meeting No. 21, May 28, 2009.

[10]           Ibid.

[11]           SDIR Evidence, 40th Parliament, 3rd Session, Meeting No. 4, March 30, 2010.

[12]           SDIR Evidence, 40th Parliament, 3rd Session, Meeting No. 11, April 29, 2010.

[13]           Ibid.

[14]           Kathy Vandergrift, SDIR Evidence, 40th Parliament, 3rd Session, Meeting No. 4, March 30, 2010.

[15]           SDIR Evidence, 40th Parliament, 3rd Session, Meeting No. 11, April 29, 2010.

[16]           Ibid.

[17]           SDIR Evidence, 40th Parliament, 2nd Session, Meeting No. 20, May 26, 2009.

[18]           Ibid.

[19]           Ibid.

[20]           SDIR Evidence, 40th Parliament, 2nd Session, Meeting No. 21, May 28, 2009.

[21]           SDIR Evidence, 40th Parliament, 3rd Session, Meeting No. 5, April 1, 2010.

[22]           Leilani Farha, Ibid.

[23]           SDIR Evidence, 40th Parliament, 2nd Session, Meeting No. 21, May 28, 2009.

[24]           Ibid.

[25]           Ibid.

[26]           Ibid.

[27]           Lucie Lamarche, SDIR Evidence, 40th Parliament, 2nd Session, Meeting No. 21, May 28, 2009, and Kathy Vandergrift, SDIR Evidence, 40th Parliament, 3rd Session, Meeting No. 4, March 30, 2010.

[28]           Lucie Lamarche, SDIR Evidence, 40th Parliament, 2nd Session, Meeting No. 21, May 28, 2009.

[29]           Alex Neve, SDIR Evidence, 40th Parliament, 3rd Session, Meeting No. 5, April 1, 2010.

[30]           Lucie Lamarche, SDIR Evidence, 40th Parliament, 2nd Session, Meeting No. 21, May 28, 2009.

[31]           Ibid.

[32]           SDIR Evidence, 40th Parliament, 3rd Session, Meeting No. 4, March 20, 2010.

[33]           Ibid.

[34]           Ibid.

[35]           Ibid.

[36]           Ibid.

[37]           Ibid.

[38]           SDIR Evidence, 40th Parliament, 3rd Session, Meeting No. 11, April 29, 2010.

[39]           The United Nations defines a human rights-based approach as an emphasis on capacity building shifting the focus from only a “violations” approach to a “fulfillment” one, where governments and donors work to implement respect for, protection of, and realization of rights. For more information see: http://data.unaids.org/Topics/Human-Rights/hrissuepaper_rbadefinitions_en.pdf.

[40]           The United Nations High Commissioner for Human Rights states that “the State remains the primary duty-bearer under international law, and cannot abrogate its duty to set in place and enforce an appropriate regulatory environment for private sector activities and responsibilities.” http://www.un.org/Depts/dhl/humanrights/toc/toc9.pdf.

[41]           The United Nations defines “rights-holders” as individuals and groups with valid human rights claims. http://www.un.org/Depts/dhl/humanrights/toc/toc9.pdf.

[42]           This document was produced by the Food and Agriculture Organization of the United Nations and also provides examples of how states can use a rights-based approach to meet the human right to adequate food: http://www.fao.org/docrep/011/i0349e/i0349e00.htm.

[43]           SDIR Evidence, 40th Parliament, 3rd Session, Meeting No. 4, March 30, 2010.

[44]           SDIR Evidence, 40th Parliament, 3rd Session, Meeting No. 5, April 1, 2010.

[45]           Ibid.

[46]           SDIR Evidence, 40th Parliament, 3rd Session, Meeting No. 4, March 30, 2010.

[47]           SDIR Evidence, 40th Parliament, 2nd Session, Meeting No. 21, May 28, 2009.

[48]           Alex Neve, SDIR Evidence, 40th Parliament, 3rd Session, Meeting 5, April 1, 2010.

[49]           Ibid.

[50]           SDIR Evidence, 40th Parliament, 3rd Session, Meeting No. 5, April 1, 2010.

[51]           Ibid.

[52]           Alex Neve, SDIR Evidence, 40th Parliament, 2nd Session, Meeting 20, May 26, 2009.

[53]           Lucie Lamarche, SDIR Evidence, 40th Parliament, 2nd Session, Meeting No. 21, May 28, 2009.

[54]           Ibid.

[55]           Ibid.

[56]           SDIR Evidence, 40th Parliament, 2nd Session, Meeting No. 20, May 26, 2009.

[57]           Ibid.

[58]           Ibid.

[59]           Ibid.; Also see Leilani Farha, SDIR Evidence, 40th Parliament, 3rd Session, Meeting No. 5, April 1, 2010.

[60]           SDIR Evidence, 40th Parliament, 3rd Session, Meeting No. 11, April 29, 2010.

[61]           Ibid.

[62]           Mr. Alex Neve, SDIR Evidence, 40th Parliament, 3rd Session, Meeting No. 20, May 26, 2009.

[63]           SDIR Evidence, 40th Parliament, 3rd Session, Meeting No. 11, April 29, 2010.

[64]           Ibid.

[65]           Ibid.

[66]           SDIR Evidence, 40th Parliament, 3rd Session, Meeting No 5, April 1, 2010.

[67]           Ibid.

[68]           Ibid.

[69]           Ibid.

[70]           SDIR Evidence, 40th Parliament, 3rd Session, Meeting No. 4, March 30, 2010.

[71]           Ibid.

[72]           Ibid.

[73]           Ibid.

[74]           SDIR Evidence, 40th Parliament, 3rd Session, Meeting 11, April 29, 2010.

[75]           Alex Neve, SDIR Evidence, 40th Parliament, 3rd Session, Meeting No 5, April 1, 2010.

[76]           Ibid.

[77]           Ibid.

[78]           Ibid.

[79]           Leilani Farha, Ibid.

[80]           SDIR Evidence, 40th Parliament, 3rd Session, Meeting No. 5, April 1, 2010.

[81]           SDIR Evidence, 40th Parliament, 2nd Session, Meeting No. 20, May 26, 2009.

[82]           Ibid.

[83]           SDIR Evidence, 40th Parliament, 3rd Session, Meeting No. 5, April 1, 2010.