1 Introduction to Human Rights in Canada
The Dominion of Canada was formed through the British North America Act, 1867 and was recognized as a fully sovereign state in 1931 with the enactment of the Statute of Westminster by the UK Parliament.1 Roughly half a century later the Constitution Act, 1982 ‘patriated and Canadianized’ the British North America Act.2 The most recognised part of the Constitution Act is the Charter of Rights and Freedoms (Charter) which, for the first time, provided for a ‘constitutional bill of rights’ for Canada.3 Since its adoption the Charter has become recognised around the world, particularly in the common law, as a model document for the protection of rights and freedoms.4 The Charter has led to considerable litigation, with virtually no area of Canadian law left untouched by this scrutiny.
A number of institutions are responsible for the monitoring and implementation of human rights in Canada. The Department of Justice is responsible for ensuring that federal Bills are consistent with Canada’s human rights
Legislative Acts of Parliament and various parliamentary committees, such as the Standing Senate Committee on Human Rights, also play an important role in the domestic implementation of human rights treaties.11 In accordance with custom and policy, the federal executive branch will seek the support of provinces and territories before becoming a party to treaties that contemplate
Regarding the enforcement of human rights, most courts at the provincial and federal level have jurisdiction to hear human rights issues, including trial courts, provincial appellate courts, the Federal Court of Appeal, and the Supreme Court of Canada.14 Courts can not only examine the behaviour of state agents but also engage in the judicial review of laws and strike down those that are found to be in violation of the Charter.15 They have done this quite often with sometimes momentous consequences for the Canadian legal system.
In addition, an entire sui generis system of human rights enforcement exists in Canada. Federal, provincial, and territorial human rights commissions have a unique role in investigating and mediating human rights complaints dealing with discrimination and supporting human rights education.16 Moreover, human rights commissions may provide some advantages to courts: they are comprised of persons with specialised expertise in human rights; may pursue public reporting or a review of legislation, policy or practice on their own initiative; and may promote a more accessible form of justice insofar as commissions
Human rights commissions may refer cases to the relevant human rights tribunal. These tribunals are specialised bodies, independent from human rights commissions, with the jurisdiction to hear cases based on statutory rights found in the relevant federal, provincial, or territorial legislation.21 The Canadian Human Rights Tribunal, for example, is established through the Canadian Human Rights Act and has cases referred to it by the chrc for adjudication under that Act.22 Tribunal decisions are reviewable by the Federal Court of Canada.23 Federal Court decisions can be appealed to the Federal Court of Appeal and then the Supreme Court of Canada.24
The Charter has brought about momentous changes to Canadian society.25 Major human rights milestones were achieved in the areas of women’s reproductive rights; two-spirit, lesbian, gay, bisexual, transgender, queer, questioning, intersex, and asexual (2slgbtqqia) rights; aboriginal rights; and
Despite these major milestones, Canadian society still faces serious human rights challenges. The government struggles to address the severe discrepancy in living standards between indigenous communities and the rest of Canada.32 Moreover, indigenous women and girls are disproportionately affected by violence. In 2017 indigenous women comprised 4,3 per cent of the female population, yet accounted for 16 per cent of female homicides and 11,3 per cent of missing females in Canada.33 Black Canadians also remain
2 Relationship of Canada with the International Human Rights System in General
Canada is a founding member of the UN. Canada participates in the UN Human Rights Council’s Universal Periodic Review (upr) and has undergone three periodic reviews (2009, 2013, and 2018).37 After France and Spain, Canada has provided the most recommendations during the upr.38 Since April 1999, Canada has extended a standing invitation to all UN Special
Canada was a member of the UN Human Rights Council (unhrc) from 2006 to 2009 and a member of the UN Security Council for 12 years in all, spanning six terms (1948–49, 1958–59, 1967–68, 1977–78, 1989–90, and 1999–2000). The country is generally regarded as an engaged member of the UN system and a strong proponent for the promotion and protection of human rights abroad.
Canada joined the Organization of American States (oas) in January 1990 but has not ratified the principal treaty on the protection of human rights in the Americas, the American Convention on Human Rights,41 and is not a member of the Inter-American Court of Human Rights.42 The Convention was negotiated without Canada and certain provisions of the Convention on the right to life, freedom of expression, property rights, and equality rights are arguably not compatible with current Canadian law.43 Ratifying the Convention with reservations on all these issues would contradict Canada’s stated opposition to making numerous reservations to human rights treaties.44 For these reasons, Canada is a full member of the oas but does not fully participate in the inter-American human rights system. However, as a member of oas, Canada acknowledges its international obligations based on the American Charter and, specifically, the 1948 American Declaration of the Rights and Duties of Man. Accordingly, Canada recognises the functions of the Inter-American
Canada played a vital role in establishing the International Criminal Court (icc), was one of the first countries to ratify the Rome Statute establishing the Court, and became the first country to adopt legislation to directly implement the Rome Statute in domestic law.46 In September 2018, Canada joined Argentina, Chile, Colombia, Paraguay, and Peru in signing a formal request for the icc to investigate Venezuela based on a report detailing torture, forced disappearances, and extrajudicial killings under the Nicolás Maduro government.47 This was the first time that Canada referred a member state to the icc.48
While Canada was proactive in implementing the Rome Statute into its internal law system, this example is an exception to the country’s general approach to the domestic implementation of international law. Canada has a dualist legal order, meaning that treaties ratified by the executive branch are required to be implemented by the legislature before they can be considered to be part of domestic law and applied by national courts as such.49
Moreover, Canadian courts, led by the Supreme Court, have shown signs of openness to interpreting Canadian law in ways that conform to international human rights norms.50 They have done so less because these obligations are directly applicable in domestic law than because they involve sister courts (such as the US Supreme Court or the European Court of Human Rights) dealing with similar issues. Furthermore, unimplemented treaties may be used by courts as an interpretative guide to domestic law based on the presumption that Canada would not have wanted to violate its international obligations. As far as possible, harmonious interpretation seeks to reconcile the meaning of Canadian law with that of Canada’s international human rights obligations. This means in practice that international human rights law is often relied on to reinforce a certain domestic understanding of the law rather than to depart from it.
Overall, the reception of international human rights treaties in domestic law remains constrained by Canada’s dualism and the reluctance of Canadian judges to directly apply international human rights law. This may evolve in the future, while pressure to implement Canada’s international human rights obligations remains strong. By contrast, if a norm of customary international law is not displaced by statute, it may be relied on in a Canadian court ‘as if it were a common law rule.’51 Still, the use of customary international law as it pertains to human rights remains limited before Canadian courts.
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4
4.1 Role of UN Human Rights Treaties
4.1.1 Formal Acceptance
Canada is a party to seven of nine core UN human rights treaties: International Convention on the Elimination of All Forms of Racial Discrimination (cerd),52 International Covenant on Civil and Political Rights (ccpr),53 International Covenant on Economic, Social and Cultural Rights (cescr),54 Convention on the Elimination of All Forms of Discrimination against Women (cedaw),55 Convention on the Rights of the Child (crc),56 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (cat)57 and Convention on the Rights of Persons with Disabilities (crpd).58 In addition, Canada has adopted all substantive Optional Protocols of the UN human rights system: the Second Optional Protocol to ccpr (op2-ccpr) (2005), the Optional Protocol to the crc on the Involvement of Children in armed conflict (2000), and the Optional Protocol to crc on the Sale of Children, Child Prostitution and Child Pornography (op-crc-sc) (2005). However, Canada is not a party to the International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families (cmw), nor to the Intentional Convention for the Protection of All Persons from Enforced Disappearance (ced).59
Canada recognises the competence of four treaty bodies (ccpr,60 cedaw,61 cat62 and crpd)63 to accept and review individual complaints.64 However, Canada has not adopted the optional mechanism for individual
Decisions regarding the formal acceptance of the core human rights treaties are an executive prerogative and much of the deliberation has taken place at the ccohr behind closed doors.67 For this reason, the motivations behind Canada’s decisions to ratify the core treaties are not well-documented. Dominique Clément has argued that Canada’s participation in treaty negotiation and ratification was part of the federal government’s strategy to strengthen the Canadian confederation.68 The federal government developed the ccohr to consult provinces and territories on the implementation of international human rights obligations that would affect provincial and territorial laws and powers.69
Non-ratification of cmw and ced: Canada is not a party to the International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families (cmw) or the Intentional Convention of the Protection of All Persons from Enforced Disappearance (ced).70
A 2006 report commissioned by the United Nations Educational, Scientific and Cultural Organisation (unesco) identified possible reasons for Canada’s objection to cmw.71 At the time, the Canadian government’s general stance
Canada officially stated during the 2009 upr that it would not become a party to ced.74 Canadian law professor Amir Attaran argued that Canada’s reported involvement in cases of enforced disappearance in Afghanistan may be a possible reason for its refusal to join ced.75 The disappearance of indigenous women and girls is of ongoing concern in Canada.76 Despite not ratifying ced, Canada has supported Asia’s first anti-disappearance law.77 Moreover,
4.1.2 Reservations Entered
Canada has entered three reservations with respect to provisions of crc and crpd. Canada maintains the right to not apply the provisions of article 21 of crc regarding permission to adopt a child ‘to the extent that they may be inconsistent with customary forms of care among aboriginal peoples in Canada’.79 Canada also accepts the general principles of article 37(c) of crc regarding the dignified treatment of children, particularly in cases of detention, but ‘reserves the right not to detain children separately from adults where this is not appropriate or feasible’.80 Moreover, Canada’s reservation with respect to article 12 of crpd preserves the right to use decision making that is not subject to regular review by an independent authority where such decision making would otherwise be subject to review.81 In the first and latest cos (2017) for crpd, the Committee expressed concern that Canada’s reservation to article 12 of crpd may contradict the object and purpose of the Convention.82
4.1.3 General Attitude of State towards UN Treaty System
Canada regards the UN treaty bodies as legitimate authorities on human rights issues and is responsive to communications, recommendations and inquiries they release, as these processes are covered by mainstream media and affect the domestic and international perception of the country and the government of the day.
4.1.4
The level of awareness of the UN treaty system varies across the different actors in Canadian society. Knowledge of the treaties and the work of the treaty bodies among public servants will depend on whether their work requires experience in, or exposure to, international human rights law. Members of standing committees on human rights (for instance, the Standing Senate Committee on Human Rights) will generally have a very strong command of international human rights law.83 There is little mention of the core UN human rights treaties in many of the current government’s priority policies and programmes. For example the Trudeau administration (2015-) has made numerous public statements regarding his government’s commitment to women’s rights and is behind initiatives such as establishing gender parity in the executive branch of government.84 His government also launched Canada’s first national action plan on gender violence and announced an investment of approximately 3,8 billion by the G7 to support education for women and girls in conflict areas at the 2017 G7 Summit in Canada.85 However there is no mention of cedaw in such announcements, in the Parliamentary record, or in media interviews with the Prime Minister and other senior federal officials. In fact, the cedaw cos regarding Canada’s 8th and 9th periodic review (2016) identified the Convention’s lack of visibility in Canada as a major issue.86 Public bodies may not see their work as involving the implementation of Canada’s international human rights obligations, especially when the rights in question are thought to enjoy full protection under the Charter.
ngos and civil society: Awareness and the use of the treaties among ngos and civil society largely depend on the scope of their mandate and their target stakeholders. Examples of ngos interacting directly with the treaties include the Canadian Coalition for the Rights of Children (ccrc), which has established a monitoring mechanism for Canada’s compliance with the crc and endeavours to be an active participant in the upcoming 5th and 6th periodic review of Canada.87 Generally, the treaties have been used by ngos in
Legal community: Awareness and the use of the core treaties and protocols appear to be localised among lawyers with expertise in international human rights law. International human rights law is taught at all 24 law faculties in Canada but is currently a required course only at one law faculty (the University of Moncton). Dedicated undergraduate programmes in human rights are offered at St Thomas University in New Brunswick and at the University of Winnipeg in Manitoba.94
General public: The general public is aware of the existence of some of the core treaties but there is low awareness of the specialised mandate of the treaty bodies and conflicting views about whether ratified treaties legally bind Canada. Popular media certainly helps in engaging the public’s interest
Local researchers citing the treaties in their work: Mentions of the core treaties by local researchers vary considerably by treaty. ccpr appears to be cited more than any other treaty.102 By contrast, to our knowledge, there are three works by local researchers dealing exclusively with cescr,103 three others that focus in part on cescr,104 and one that deals exclusively with
4.1.5 State Reporting
Reporting obligations: As of 30 June 2019, Canada has submitted 51 reports for periodic review before the treaty bodies, including reports for the optional protocols op-crc-ac and op-crc-sc. Canada has only submitted two periodic review reports on time, both for cerd. Canada is, on average, one year and five months late in submitting its reports for review. Canada’s tardiest submission was their tenth report to cerd, which was submitted five years and three months late. While Canada currently has four reports overdue, it has never failed to submit a report to a treaty body for periodic review.106
The situation regarding tardy submissions has improved in the case of cerd: Canada’s most recent report (13th report) was only four months late, compared to its 12th (one year and one month late) and 10th report (five years and three months late). The situation regarding submissions for cedaw has become progressively worse: Canada’s 1st report was five months late and its 3rd, 4th, 5th, and 6th reports were late by seven months, eight months, two years and two months, and three years and six months, respectively. The reporting statistics for other treaties have either been too inconsistent to outline a clear trend or, in the case of crpd, op-crc-ac and op-crc-sc, there is too little data available with only one report submitted for each treaty.
Preparation of reports to UN treaty bodies: Canada’s reports to the UN treaty bodies are prepared by Canadian Heritage in collaboration with the provinces and territories.107 Canadian Heritage receives technical assistance from the Department of Justice, Global Affairs Canada, Employment and Social Development Canada, and Statistics Canada.108 This is a somewhat unusual setup internationally, given the primacy of the role of justice or foreign ministries in this process.
nhri reports under treaties: The Canadian Human Rights Commission (chrc) is invited by the Canadian government to provide input on reports and in fact contributed to Canada’s reports for periodic review under cerd, ccpr, cescr, cat and crpd.110
Alternative reports by ngos and csos: ngos and civil society organisations may be invited by the federal government to take part in the preparation of Canada’s reports.111 However, these organisations typically prefer to submit independent alternative reports.
Alternative reports for cerd addressed the issues of systemic discrimination against minorities and indigenous peoples; racial profiling by police and other figures of authority; immigration policies and practices that are contrary to the treaty; and the overrepresentation of certain minorities and indigenous people and in prisons.
Key themes and topics covered in alternative reports to the HRCttee include the incomplete implementation of the treaty at the domestic level; violence and discrimination against (indigenous) women and children; torture in the process of intelligence gathering; the use of solitary confinement; refugee and migrant rights; 2slgbtqqia rights; deportation to torture; indefinite detention and detention of children; corporate accountability for human rights violations; and a shrinking space for civil society advocacy and dissent.
Alternative reports to cescr cover issues regarding the full domestic legal implementation of cescr; the defunding of programmes promoting economic, social, and cultural rights; restrictions on the political activities of charities through the Income Tax Act; the participation of poor people in social and political life; violence against women and indigenous peoples; the lack of a living minimum wage, decent and stable employment and pay equity; measures to deny refugees access to social supports; health care for undocumented migrants; the right to housing; the right to food; and the right to health.
Core issues discussed in alternative reports to the cedaw Cttee include violence against (indigenous) women and girls; the disproportionate number of (indigenous) women in maximum security prisons; the rights of sex workers; the gender wage gap; the economic empowerment of women; and discrimination at the intersection of race, economic, and legal status.
Alternative reports to the crpd Cttee feature several joint submission and frame core issues in relation to provisions of crpd, the Canadian Charter of Rights and Freedoms, and other relevant domestic and international instruments. The alternative reports touch on several key issues, including the lack of incorporation of crpd into domestic law; intersectional discrimination (article 5 of crpd); involuntary detentions in psychiatric institutions; sexual assault of pwds; unemployment or precarious employment and its disproportionate effect on pwds; and issues at the intersection of disability and medical assistance in dying (MAiD).
There are no submissions to the crc Cttee available in the UN treaty body database for the time period of this study.
4.1.6 Domestic Implementation Process
Jurisdiction over matters covered by the core treaties and the responsibility for implementing cos and treaty body recommendations is divided between the federal, provincial, and territorial governments.112 Canadian Heritage coordinates implementation efforts between these different levels of government. The federal government will consult and cooperate with other levels of government in cases where the implementation of cos and treaty body recommendations falls within provincial or territorial jurisdiction. However, there is no formal mechanism to monitor human rights implementation across levels of government or force compliance.
4.1.7 Treaty Body Membership
Candidates are nominated for treaty body membership through Global Affairs Canada. The nomination of a candidate is a ministerial decision.
Canada has nominated one member to cerd, Mr Ronald St John MacDonald, who was elected to sit on the Committee from 19 January 1972 to 19 January 1976.113 No other Canadian has been elected since.114 Given Canada’s minimal
Four individuals have been elected for membership on the HRCttee. Mr Walter Tarnopolsky was elected to serve on the HRCttee from 1976 to 1983. Ms Gisèle Côté-Harper was elected to serve on the HRCttee from 1983 to 1984.115 She was re-nominated but not re-elected for membership. Mr Maxwell Yalden was elected to serve on the HRCttee in 1996 and remained a member until 2006.116 In March 2016 Ms Marcia VJ Kran was elected to serve on the HRCttee.117 Ms Kran is the first Canadian member of the HRCttee in 10 years. She was re-elected to serve on the HRCttee in 2020.118 Canada’s participation in the treaty body has had a notable impact on the role of the treaty at the domestic level. For example, the ccpr may have influenced Mr Tarnopolsky contributions to the drafting of the Canadian Charter.119
One Canadian, Ms Marie Caron, served as a member of the cedaw Cttee from 1982 to 1988 but was not re-nominated. An alternative report submitted to the Committee in 1997 raised concerns about the fact that Canada had not nominated a woman to any treaty body for several years.120 From 2008 to present, Canada has not nominated anyone to the cedaw Cttee.121 The general lack of initiative to nominate a candidate for cedaw Cttee membership undermines the Trudeau government’s (2015-) official position that women’s human rights are a special focus for his administration.
Professor Peter Thomas Burns was elected to serve as a member of the cat Cttee in 1987, was made Chairperson in 1998, and held that position until 1999.122 To date, no Canadian has been elected as a member on cescr or the
4.2 Overview of Impact
4.2.1 Incorporation and Reliance by Legislature and Executive
The executive branch of government possesses the legal authority to negotiate, sign, and ratify treaties. Given that Canada has a dualist legal order, treaties ratified by the executive require implementing legislation before they can be considered to be part of domestic law and applied by national courts as such. Canada has not directly incorporated into its domestic law any of the core UN human rights treaties that it has joined. Moreover, ‘there is no formal or public process in Canada that is dedicated to following up on the observations, findings, and recommendations of these bodies with respect to Canada’s human rights performance’.125 Canada’s general position is that its domestic laws already provide effect to the obligations of the treaty and thus do not require dedicated legislation for their implementation.126 In reality, what results is a reliance on an arguably incomplete patchwork of domestic legislation giving partial effect to Canada’s human rights treaty obligations.
4.2.2 Reliance by Judiciary
Given that human rights treaties are not directly incorporated into Canadian law, the treaties generally have no direct application or legal effect before a Canadian court. However, the Supreme Court of Canada has held and reaffirmed that the Canadian Charter of Rights and Freedoms ‘should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified’.127
4.2.3
Legal community: A probable reason why we see relatively little explicit treatment of the core human rights treaties in Canadian decisions is because they cannot give rise to a cause of action per se in Canada. Therefore, law practitioners are more likely to rely on the Charter and other relevant domestic human rights instruments to make a legal claim in court.
ngos and civil society: Well-established human rights ngos have a high awareness of the core treaties and the capacity to undertake information-sharing sessions with other organisations in their collaborations with treaty bodies. The core treaties (most often ccpr) have been used by ngos in parliamentary hearings, as well as in letters, briefs, and petitions to federal cabinet ministers and other parliamentarians. ngos have used the treaties in litigation before tribunals and courts but the most consistent use of the core treaties is through alternative reporting to the UN treaty bodies in preparation for Canada’s periodic review or through knowledge sharing and other collaborations with other civil society actors. Alternative reports sometimes include the authoring organisation’s dialogue with federal, provincial or territorial governments regarding issues raised, and some reports will also recommend questions for the treaty body to pose to the Canadian delegation.
4.2.4 Impact of State Reporting
Generally, it is difficult to assess whether Canada has effectively implemented the cos because of serious, cross-cutting issues tied to knowledge management and a lack of self-critical assessment in Canada’s reports. Canada’s reports tend to identify initiatives that purport to fulfil Canada’s treaty obligations, often without indicating how these initiatives will be implemented or whether past initiatives have been implemented and adequately monitored. The result is a series of reports that detail government initiatives without conducting a retrospective analysis of whether the overall situation is ameliorating, has stayed the same, or is becoming worse.
Treaty bodies have also noted persistent and serious issues with Canada’s implementation of recommendations made in the cos. One recommendation that is consistently disregarded is the need for Canada to legislatively implement its human rights obligations under the treaties. There are also great difficulties with monitoring implementation of cos because there are relatively few state follow-ups to cos. Given that there is no streamlined and dedicated mechanism for monitoring the implementation of recommendations contained in cos, one of the few ways to monitor Canada by way of cos is by looking for recurring or repeat issues, which could signal that those have not been (fully) addressed.
4.2.5
Canada has accepted the complaints procedures of ccpr, cat and cedaw. The relevant untbs made a total of 38 findings of violation against Canada, 28 of ccpr, 9 of cat and one of cedaw. All but nine of these findings (8 of ccpr and one of cat) were adopted after 30 June 1999. There is very little information available that would allow us to assess how Canada generally responds to the views of treaty bodies in communications, given that there are only two follow-ups to communications recorded and they are under ccpr.
Canada’s legal system does not give legal effect to the treaty bodies’ communications because none of the core treaties have been directly incorporated into domestic law. Moreover, the social and political effect of the treaty bodies’ communications is weakened by the lack of a ‘formal and public process’ at the domestic level for follow-up on communications, as well as cos, early warning measures and urgent procedures, inquiries, and other findings and recommendations of the treaty bodies.128 Nevertheless, Canada’s policy is to respect decisions arising from communications, as they go hand-in-hand with Canada’s treaty obligations.129
Moreover, while the federal government represents Canada on the international stage, under the constitution of Canada, it is the responsibility of provincial governments to implement treaty obligations that fall under the exclusive powers of provincial legislatures.130 Problems arise when provincial laws, policies, programs or actions put Canada in a situation of non-compliance because there is no clear mechanism to compel a province to honour Canada’s human rights treaty commitments.131
4.2.6 Impact of cerd Early Warning Measures
Past cerd early warning measures have alerted Canada to the need to engage in meaningful consultation with indigenous peoples where resource development projects affect aboriginal and indigenous treaty rights.132
4.2.7
Canada allows the cedaw Cttee to undertake inquiries pursuant to articles 8 and 9(2) of op-cedaw. The Committee launched an inquiry into the issue of missing and murdered indigenous women and girls (mmiwg) in Canada in 2012.133 While Canada’s initiative to establish a national inquiry on this issue was viewed by the cedaw Cttee as a positive step, the cedaw Cttee noted with concern that Canada had not put forward a formal plan to implement 37 other recommendations stemming from the Committee’s inquiry.134
5 The Impact of the Different UN Human Rights Treaties on the Domestic Level in Canada
5.1 International Convention of the Elimination of All Forms of Racial Discrimination
5.1.1 Incorporation and Reliance by Organs of State
Treaty incorporation into domestic law and policy: Canada’s reports to the cerd Cttee cover laws and programmes intended to address racial discrimination, advance substantive equality, improve the conditions of marginalised individuals and groups, and give legal effect to the treaty. The Canadian Multiculturalism Act directly references cerd in the Preamble.135 The Act recognises multiculturalism as a fundamental tenet of Canadian society.136 Article 4 cerd is reflected in amendments to the Criminal Code that address hate propaganda offences and aim to combat racial violence.137 The Canadian Human Rights Act (1977) prohibits racial discrimination at any stage of the employment cycle or in the provision of government or private goods and services under federal jurisdiction.138 Additionally, the Employment Equity Act requires federally regulated entities to advance employment policies and practices that increase the representation of four designated groups: women, persons with disabilities, indigenous peoples, and visible minorities.139 The Federal Contractors Programme is intended to provide equal employment
Allocation of budget in light of the treaty requirements: Canada’s 21st and 22nd reports to cerd cover investments into programmes at the federal and provincial levels targeting discrimination and diversity as well as reparations for injustices linked to systemic racism.143 In 2015 Ontario invested $752 800 over three years in an initiative to reduce the dropout rate of Somali youth in Toronto high schools.144 In 2012 British Columbia introduced the Aboriginal Post-Secondary Education and Training Policy Framework and Action Plan to increase the number of degrees or certificates awarded to indigenous learners by 75 per cent by 2020–2021.145 The plan includes $25,1 million in funding from 2012 for supporting education and career advancement initiatives between indigenous communities and public post-secondary institutions; $4 million in annual funding to eleven public post-secondary institutions to put in place an Aboriginal Services Plans for Indigenous learners; and a $4,3 million contribution starting in 2012 to support indigenous students experiencing an immediate financial need.
The federal government is working to make reparations for past injustices surrounding the legacy of the Indian residential school system through the Indian Residential Schools Settlement Agreement (2006).147 As of December 2015, Canada has paid over $1,62 billion in reparations (Common Experience Payments) to 79 302 recipients.
Canada’s 2018 endorsement of the UN International Decade for People of African Descent (2015–2024) was backed by a cad 214 million investment in the 2018 federal budget for ‘initiatives designed to remove racial barriers, promote gender equality, combat homo-and trans-phobia and enhance the quality of life of black Canadians’.148
5.1.2 Reliance on Treaty by Domestic Courts
cerd has received explicit treatment in three milestone Supreme Court of Canada cases: R v Keegstra,149 Canada (Human Rights Commission) v Taylor150 and R v Zundel.151 In R v Keegstra the Supreme Court considered the provisions of cerd in interpreting the scope of section 2(b) (freedom of expression) of the Charter. The Court found that the protection provided to freedom of expression by cerd article 5(viii), interpreted in conjunction with article 2, does not cover expression advocating racial or religious hatred.152 In Canada v Taylor cerd is mentioned as evidence that the international community’s commitment to eliminating discrimination ‘extends to the prohibition of the dissemination of ideas based on religious or racial superiority’.153 In R v Zundel, the Court found that article 4 of cerd emphasized the goal of ‘preventing the harm caused by calculated falsehoods which are likely to injure the public
5.1.3 Impact on and through Non-state Actors and Independent State Institutions
ngos and civil society: ngos and civil society in Canada have used cerd in innovative and informative ways that take advantage of the reach of social media. Organisations that work on equality, diversity, and inclusion issues, such as the National Women’s Association of Canada (nwac) and the Ontario Council of Agencies Serving Immigrants (ocasi), share the treaty body’s findings and reports with the public across social media platforms. Organisations also often solicit support from other civil society groups to conduct knowledge sharing for the periodic review process. These organisations also use cerd treaty body reports and cos as a benchmark to assess Canada’s performance under the treaty, make direct demands, and, where appropriate, bring shame on different levels of government for their lack of progress.155 Overall, Canadian civil society is generally well organised and systematic in applying pressure at the international and domestic levels on issues related to racial discrimination in Canada.156
Academics: To our knowledge, only one article by a local researcher dealt exclusively with the treaty.157
5.1.4 State Reporting and Its Impact
Pertinent issues in cos: The cos for the combined 21st to 23rd periodic reports of Canada pointed to unresolved issues from previous state reports and addressed growing concerns regarding Canada’s overall performance in meeting the obligations of cerd.159 The cerd Cttee reiterated its concern from the 12th report regarding the lack of comprehensive data on the ethnic composition of Canada’s population and the representation of minority groups in political life in Canada.160 This has prevented the Committee from properly evaluating the attainment of civil, political, social, and cultural rights in Canada by minority groups.
The cerd Cttee also recalled its General Recommendation (No 23 (1997)) on the rights of indigenous peoples and restated its previous recommendation that Canada suspend all permits for the Site C dam in British Columbia.161 It also urged Canada to undertake a full review of the project in cooperation with indigenous peoples to ensure that developers seek free, prior and informed consent from indigenous peoples affected, respect indigenous treaty obligations in the course of development, and identify alternatives to the destruction of indigenous land that may result from the project.162
Regarding developing issues, the cerd Cttee also pointed to a lack of a renewed national plan against racism since the previous plan ended in 2010, and a lack of an anti-racism legal framework to meet the requirements of article 4 of cerd.163 Lastly, the Committee also called on Canada to address racial
Canada’s engagement with cos: Regarding the possibility of racial profiling in immigration detention, Canada states that its policy is to use detention ‘only as a measure of last resort, in limited prescribed circumstances and only after alternatives to detention have been considered’.165 The government also stated that access to periodic review of detention and other safeguards protected detainees from arbitrary detention through the periodic review of their detention.166 Canada deferred responding to the Committee’s recommendations for follow-up on the Site C dam project, explaining that it would instead address this concern in its response to a cerd Early Warning Urgent Action request.167
5.1.5 Individual Communications and Their Impact
There are no individual communications and no inquiries lodged under cerd. While Canada does not recognise the competence of cerd treaty body to accept and review individual complaints, there have been several cerd early warning urgency actions (ewua) that would be ripe for submission as individual communications were Canada to recognise the cerd complaint mechanism. cerd ewua reports cover development projects that are being carried out without meaningful consultation with the indigenous peoples affected. This activity could potentially undermine pre-existing aboriginal and treaty rights.
5.1.6 Impact of Other Measures
The cerd early warning measures have been used a total of seven times (15 August 2008; 13 March 2009; 27 May 2016; 3 October 2016; 13 December 2016; 17 May 2017; 13 December 2019). cerd early warning measures were exercised by the Committee to alert Canada to the following:
- –the continuance of the Site C dam project and the approval of the Trans Mountain Pipeline Extension project and the Coastal Gas Link pipeline
without free, prior and informed consent by indigenous peoples affected (2019);168 - –alleged violations of the rights of indigenous women in the village of Lote Ocho in Guatemala by employees of a Canada-based resource company (2016);169
- –the undermining of the indigenous land rights of the Secwepemc Nation and the St’át’imc Nation in British Columbia (2016, 2017);170
- –absence of certainty regarding the land rights over Lubikon Lake Nation territory and the North Central Corridor Pipeline extending through the territory (2016, 2008);171
- –the expansion of development projects in indigenous territories without informed consent and the extinguishing of traditional land rights in favour of private interests (2009).172
5.1.7 Brief Conclusion
Canada’s reports and follow-up submissions to the cos continue to avoid addressing ongoing issues that impede the Committee’s work across reporting cycles, such as the lack of comprehensive statistics on the country’s ethnic composition. Moreover, despite Canada endorsing the UN Declaration on the Rights of Indigenous Peoples (undrip), the free, informed, and prior consent of indigenous peoples remains an unresolved and contentious issue in the country. At the time of writing, only British Columbia has passed legislation to implement the Declaration.173
5.2
5.2.1 Incorporation and Reliance by Organs of State
Incorporation of treaty into domestic law: In April 2001 the federal government established the Standing Senate Committee on Human Rights to identify measures needed to fully implement its obligations under ccpr after the HRCttee expressed concern that there may be gaps between the protection of civil and political rights under the Charter and relevant federal, provincial, and territorial (F-P-T) laws.174 Following the Senate Committee’s first report (13 December 2001), a federal Deputy Ministers Committee (October 2002) was established for Canadian governments to more effectively coordinate and share in the responsibility for implementing Canada’s international human rights obligations.175 Since then, a Senior Officials Committee on Human Rights (sochr) and the Forum of Ministers on Human Rights (fmhr) have also been established as part of this effort (see part 1).176 Despite its incomplete incorporation into domestic law, ccpr was considered in the drafting of the Charter.177 ccpr has also had a stated influence on the Canadian Multiculturalism Act; the Preamble to the Act references Canada’s international obligations under ccpr.
Policies related to the treaty: Policies related to the treaty were mandated by the federal government as a response to the HRCttee’s recommendations following the country’s 5th178 and 6th179 (latest) periodic reports to the Committee. The HRCttee paid particular attention to article 2 of ccpr (equal rights and effective remedies) and recommended that human rights legislation be amended to guarantee access to an effective remedy in all discrimination cases.180 In response the Canadian Human Rights Commission (chrc) introduced process reforms in May 2003 aimed at reducing its chronic backlog
5.2.2 Reliance on the Treaty by Domestic Courts
In Canadian Foundation for Children, Youth and the Law v Canada the Supreme Court of Canada engaged with the Preamble and article 7 of ccpr, and the views expressed by the HRCttee, to find that the ccpr does not require state parties to categorically ban corporal punishment of children, since it permits ‘corrective force that is reasonable’.183
The extradition case, USA v Burns, references ccpr but ultimately finds that the Charter requires Canada to seek assurances that the death penalty will not be imposed by the country requesting extradition ‘in all but exceptional cases’.184 Similarly, the Court in Suresh v Canada found that deportation to torture is prohibited – barring exceptional cases – by article 7 of ccpr (prohibition on torture), but ultimately relied on section 7 of the Charter (life, liberty and security of the person) in arriving at the decision.185 Also in this case, the HRCttee’s General Comment 20 was used to inform the Court’s interpretation of the principles of fundamental justice in section 7 of the Charter.186
5.2.3 Impact on and through Non-state Actors
ngos and civil society: ngos generally cite ccpr in their alternative reports to the HRCttee for their periodic review of Canada.187
Academics: ccpr appears to be cited more than any other major human rights treaty in Canadian textbooks and journal articles.188 This may be due
5.2.4 State Reporting and Its Impact
Pertinent issues in Concluding Observation recommendations: The cos to Canada’s 6th report expressed concern in several areas. The HRCttee recommended that Canada consult indigenous people to seek their free, prior and informed consent whenever government resource projects may affect aboriginal and indigenous treaty rights.189 The HRCttee also expressed concern regarding the alleged human rights abuses committed by Canada-based resource companies operating abroad and recommended the establishment of an independent mechanism with the capacity to undertake complaints about such abuses.190 The HRCttee also expressed concern about the gender pay gap in Canada, which disproportionately affects low-income women; the differing or non-existent pay equity legislation at the F-P-T levels; the underrepresentation of women in leadership positions in the public and private sectors; and the failure to guarantee equal employment and advancements opportunities within the private sector.191 The HRCttee noted with concern the conditions in Canada’s correctional facilities and, in particular, the high level of overcrowding; the use of segregation for extended periods; reports of suicides in corrections facilities and insufficient support for inmates with mental-health issues.192 Lastly, the Committee expressed grave concern about the continued high incidences of domestic violence in Canada, specifically against indigenous women and girls and women of colour.193
Implementing recommendations in cos: A general comment regarding the implementation of Concluding Observation recommendations to the 6th periodic report is that only a select few recommendations are given attention in the follow-up procedure.194 Those that are addressed receive only partial implementation. Canada recognised its ongoing duty to consult and accommodate indigenous communities where the government contemplates action that might adversely affect aboriginal treaty rights.195 An important tool to this
5.2.5 Individual Communications and Their Impact
There have been 138 individual communications and no inquiries lodged under ccpr.205 The HRCttee found violations in respect of 28 communications concerning Canada, 8 covered in the previous study, and 20 adopted since 30 June 1999.206 Some individual communications brought before the HRCttee have received media attention and have led to law and policy change. For example,
In the more recent case of Toussaint v Canada, the HRCttee concluded that irregular migrants’ right to life and equality under ccpr covers access to essential health care services.209 Nell Toussaint entered Canada in 1999 and developed a serious health condition in 2008 before she could complete the process to regularise her immigration status. Due to her irregular status Toussaint was denied access to essential healthcare services available through Canada’s Interim Federal Health Programme. The HRCttee concluded that the right to life may impose positive obligations on governments, in addition to the negative obligation to not discriminate based on regular and irregular migration status. The HRCttee requested that Canada review its legislation to make sure that irregular migrants have access to essential health care in such circumstances.210 Canada disagreed with the views of the Committee and expressed that it would ‘not be taking any further measures to give effect to those views’.211
5.2.6 Follow-Up to Individual Communications
There has been very low engagement on the part of Canada with the procedures for follow-up before the HRCttee. Canada has submitted one follow-up progress report on individual communications (ccpr/c/101/3) containing information received since October 2010. The two cases recorded in this single follow-up are Dumont and Hamida.212
Hamida dealt with an expulsion order requiring Mr Hamida to return to Tunisia. Mr Hamida argued that the order violated article 7 (prohibition against torture), in addition to article 2 of ccpr. The HRCttee’s follow-up recommended a reconsideration of the order with a view to obligation under ccpr to avoid exposing individuals to the risk of torture and other cruel and inhumane treatment. This follow-up dialogue is considered ongoing by the treaty body.
5.2.7 Brief Conclusion
Canada’s periodic and follow-up reports tend to cherry-pick recommendations to address; and of those, most receive only partial implementation. Nevertheless, there are moments demonstrating that Canada generally recognises the legitimacy and authority of the HRCttee. In August 2019 Canada delayed the deportation of Mr Abdilahi Elmi, a former Somali refugee and foster child, at the United Nations’ request so that the HRCttee could review his case. In response, a spokesperson for the Minister of Public Safety stated that ‘[i]nterim measures requests from the HRCttee are always considered by Canada’.214
5.3
5.3.1 Incorporation and Reliance by Organs of State
In the cos to Canada’s 6th periodic report, the cescr Cttee has expressed concern that the lack of available legal mechanisms in Canada for upholding economic, social, and cultural rights might disproportionately affect disadvantaged and marginalised individuals and groups, including indigenous peoples, the homeless, and persons with disabilities.215 The Covenant, unlike the Canadian Charter of Rights and Freedoms, explicitly guarantees the right to work and safe and fair working conditions;216 the right to strike and belong to a trade union;217 the right to an adequate standard of living;218 the right to paid maternity leave and social security;219 and the right to benefit from cultural and scientific developments.220 To close the rights gap between the Charter and cescr, the Committee has requested that Canada actively engage with indigenous peoples and other relevant stakeholders to broaden the scope of the Charter to explicitly include economic, social, and cultural rights.221
Laws and policies related to the treaty: While not in direct response to the treaty, reforms to the Criminal Code aim to better protect target groups – particularly women and children – from domestic violence (article 10 of cescr).222 An Act to amend the Canadian Human Rights Act,223 extends protection under the Act to first nations registered under the Indian Act by admitting complaints made under the Indian Act that were previously inadmissible.224 The federal Employment Equity Act seeks to achieve equitable representation in federal workplaces for four designated groups: women, aboriginal persons, persons with disabilities, and members of visible minorities.225 This helps to promote the progressive realisation of the right of all to gain a living by work under article 6 of cescr.226 Government statistics on the representation of designation groups in the federal government and the private sectors show
- 4It is declared to be the housing policy of the Government of Canada to –
- (a)recognise that the right to adequate housing is a fundamental human right affirmed in international law;
- (b)recognise that housing is essential to the inherent dignity and well-being of the person and to building sustainable and inclusive communities;
- (c)support improved housing outcomes for the people of Canada; and
- (d)further the progressive realisation of the right to adequate housing as recognised in the International Covenant on Economic, Social and Cultural Rights [emphasis added].
Civil society played a major role in successfully petitioning the federal government to include this provision in the National Housing Strategy Act. After the release of the National Housing Strategy, which signalled the federal government’s intention to make housing a right under Canadian law, 1 100 signatories penned a letter to Prime Minister Trudeau urging the government to do so.230
5.3.2 Reliance on the Treaty by Domestic Courts
The Supreme Court of Canada in Health Services and Support v British Columbia relied on cescr for guidance in interpreting the scope of collective bargaining rights under section 2(d) of the Canadian Charter of Rights and Freedoms.232 In Saskatchewan Federation of Labour v Saskatchewan, the Court held that cescr is relevant to interpreting the Charter with respect to the right to strike. The majority opinion emphasized that Canada’s obligations under article 8(1) of cescr, ‘clearly argue for the recognition of the right to strike within s. 2(d) [of the Charter]’ (freedom of association).233 The dissenting opinion emphasized that article 8(2) of cescr did not prevent a state from imposing lawful restrictions on the right to strike, and that there is ‘no clear consensus under international law that the right to strike is an essential element of freedom of association’.234 Although they provide interpretative guidance, rights protected under cescr have not formed the basis of successful Charter challenges as the Charter does not explicitly protect economic, social, and cultural rights. Advocates have used the section 7 right to life, liberty and security of the person to ‘read in’ economic, social, and cultural rights. The most recent case to invoke section 7 on the basis of a violation of social, economic and cultural rights was the Ontario Court of Appeal ruling in Tanudaja v Canada (Attorney-General).235 The applicants sought a declaration ‘that the failure of Canada and Ontario to have implemented effective national and provincial strategies to reduce and eliminate homelessness and inadequate housing violates the applicants’ and others’ rights to life, liberty and security of the person contrary to s.7 of the Charter’.236 The Ontario Court of Appeal deemed the issue non-justiciable.237
5.3.3
ngos and civil society: We have not come across examples of ngos using cescr in advocacy campaigns or other awareness-raising projects. However, ngos such as Canada Without Poverty periodically update stakeholders on their engagement with the cescr Cttee.238 The most common use of the treaty by ngos has been in the context of submitting alternative reports to the Committee for the periodic review of Canada.239
Academics: To our knowledge, only three academic articles by local researchers deal exclusively with cescr and Canada.240 There have been recent articles that focus in part on the Covenant and Canada: a 2015 article on the right to housing;241 another on monitoring women’s socio-economic equality under cescr;242 and a third on the justiciability of social and economic rights in Canada.243
5.3.4 State Reporting and Its Impact
The key issues detailed in the 6th and latest cos include the consistent lack of full domestic implementation and application of cescr in domestic law; the low levels of development assistance (0,24 per cent of Canada’s gross national income (gni) which is less than half of the internationally-recognised target of 0,7 per cent); the lack of meaningful consultations with indigenous peoples regarding government resource development; ongoing socio-economic disparities between indigenous and non-indigenous peoples; and the overrepresentation of women and minorities in part-time and low-wage labour.246
Canada’s engagement with cos: There are no follow-up procedures for cos on record, which makes it very difficult to assess whether cos have been implemented by Canada.
5.3.5 Brief Conclusion
The absence of follow-up procedures for cos on record makes it difficult to accurately assess Canada’s implementation of cescr Cttee recommendations. At the same time, key issues detailed in the 6th and latest cos are still negatively impacting cescr adherence. Canada’s official development assistance still makes up less than half of the internationally recognised target of 0,7 per cent.247 There still exists a wide wage gap and other socio-economic disparities between indigenous and non-indigenous peoples. A 2017 study by the Conference Board of Canada revealed that indigenous people with a high school diploma earned 15 to 19 per cent less than non-indigenous people
On a more positive note, Canada has committed to implementing a national housing strategy, a recommendation made by the cescr Cttee in cos to the 6th report. However, Canada’s lack of follow-up procedures to the cos make it difficult to attribute the national housing strategy to the Committee’s recommendation.
5.4 Convention on the Elimination of All Forms of Discrimination against Women
5.4.1 Incorporation and Reliance by Organs of State
[W]omen’s human rights in Canada are protected in an incomplete and patchwork way at the federal, provincial and territorial level that are in different level of harmonisation with cedaw, and thus result in different levels of protection for women’s right to life free from violence.251
The cedaw Cttee has expressed similar concerns related to the treaty not being justiciable in Canada because it has not been incorporated into domestic law.252
Other relevant legislation and programmes identified by Canada in its combined 8th and 9th periodic reports include the Zero Tolerance for Barbaric Cultural Practices Act (2015), to protect girls and women from forced marriage and bans a foreign national or permanent resident from Canada for practising polygamy;254 the Protecting Canadians from Online Crime Act (2014);255 the Family Homes on Reserves and Matrimonial Interests or Rights Act (2013; amended in 2014);256 the Protection of Communities and Exploited Persons Act (2014) to outlaw profiting from prostitution;257 the Gender Equity in Indian Registration Act (2011);258 the Action Plan to Address Family Violence and Violent Crimes against Aboriginal Women and Girls (2014);259 the National Action Plan to Combat Human Trafficking (2012);260 and the Federal Framework for Aboriginal Economic Development (2009).261
5.4.2
As with legislation, Canada’s policies may contemplate core treaties such as cedaw but it is generally difficult to establish this link in a cause-and-effect way, even based on Canada’s written submissions to the cedaw Cttee. The Canadian Feminist Alliance for International Action Canada (fafia/afai Canada) has been persistent in pressuring the federal government to implement a national gender equality plan.262 In June 2017, Canada launched ‘It’s Time: Canada’s Strategy to Prevent and Address Gender-Based Violence’, a national plan to tackle gender-based violence.263
5.4.3 Resource Allocation
Canada’s combined 8th and 9th periodic reports also outline budgetary allocations in light of the treaty’s obligations. The 2018 federal budget included $100,9 million over five years, and $20,7 million per year ongoing, to implement the national gender equality plan.264 This included the establishment of the Gender-Based Violence Knowledge Centre within Status of Women Canada (now Women and Gender Equality Canada), which aims to better distribute resources across different levels of government and promote more coordinated action on gender-based violence.
5.4.4 Reliance by Domestic Courts
There is no significant reliance on cedaw by the Supreme Court or by lower courts and tribunals. The vast majority of cases mentioning cedaw have come before the Immigration and Refugee Board of Canada (irb) and the federal courts and involved women who have been denied asylum in Canada or are seeking a stay of deportation in order to avoid the threat of violence by a partner in their country of origin. In these cases, cedaw is mentioned merely to establish whether the treaty has been ratified by the country of origin so as to
5.4.5 Impact on and through Non-state Actors and Independent State Institutions
ngos and civil society: ngos generally cite cedaw in alternative reports to the cedaw Cttee for the periodic review of Canada. cedaw is also consistently cited by Human Rights Watch and Amnesty International in their reports on Canada.265 In 2011 the Native Women’s Association of Canada (nwac) and fafia Canada requested that the cedaw Cttee conduct an inquiry into the murders and disappearances of indigenous women and girls in Canada, given that the federal government in power at the time did not seem inclined to undertake such an inquiry.266 nwac, fafia and other public interest groups were instrumental in coordinating with the Committee to successfully pressure Canada to launch the National Inquiry into Missing and Murdered Indigenous Women and Girls (mmiwg) in 2015. In addition, ngos that work on issues related to women’s rights in Canada consistently make submissions to the Committee for the periodic review of Canada.267
5.4.6 State Reporting and Its Impact
Pertinent issues in cos recommendations: The cos regarding Canada’s 8th and 9th periodic reports considered unaddressed issues from previous cos such as the particularly low public awareness of cedaw in the country and the dearth of government initiatives to improve awareness;269 insufficient steps to render cedaw justiciable;270 and the crisis of access to justice in Canada and its distinct effect on women.271 It also urged Canada to consider, going forward, a whole-of-government national strategy to address gender-based violence against women;272 the persisting discrepancy in pay between men and women, in part linked to the lack of accessible child-care and other social supports;273 the conduct of Canada-based resource extraction companies operating abroad and its particular impact on women and girls;274 and provisions of the Indian Act which continue to unduly discriminate against indigenous women, as reflected in decisions rendered by the HRCttee.275
Implementation of cos: In the cos for Canada’s 6th and 7th period report,276 the cedaw Cttee urged Canada to examine the reasons for failing to investigate cases of missing and murdered indigenous women and girls (mmiwg)
5.4.7 Individual Communications and Their Impact
The cedaw Cttee found Canada in violation in one communication, Cecilia Kell v Canada,280 and declared a further three complaints inadmissible.281 In Kell, the Cttee found a violation of articles 1, 2 and 16 of cedaw. The matter concerned Kell, an indigenous woman, who had been evicted from her home by her abusive partner.282 Kell filed an individual complaint, claiming that Canada ‘failed to ensure that its agents refrain from engaging in any act or practice of discrimination against women, when they removed [Kell’s] name from the lease without her consent’, and therefore violated article 16 of cedaw. The Committee recommended that Canada provide Kell housing and financial compensation and take proactive steps to ensure that indigenous women who face domestic violence have adequate and effective access to justice. There are no follow-up reports to communications for cedaw found in the UN treaty database.
5.4.8
Canada allows the cedaw Cttee to undertake inquiries pursuant to articles 8 and 9(2) of op-cedaw. The Committee launched an inquiry into the issue of missing and murdered indigenous women and girls in Canada in 2012 followed by an official state visit in 2013.283 The cedaw Cttee’s 2015 inquiry report284 concluded that Canada violated several rights under cedaw and was required to ‘take appropriate measures to modify or abolish not only existing laws and regulations, but also customs, practices and stereotypes that constitute discrimination against women’,285 to exercise due diligence and ‘strengthen its institutional response’ to prevent, address, and provide reparations for violence against indigenous women (articles 2(c), 2(e) and 15(1));286 and ‘ensure that aboriginal women are protected against discrimination committed by public institutions’ (articles 2(c), 2(d), 2(e) and 15).287
In response to these findings of grave violations of cedaw, the Committee issued 38 recommendations to ‘be considered and implemented as a whole’.288 The Trudeau administration (2015-) committed $54 million over more than a three-year period to the National Inquiry on Missing and Murdered Indigenous Women and Girls (mmiwg).289 The inquiry called on over 2 000 witnesses across the country to give testimony and concluded with a report on the findings. The inquiry and its associated report call on F-P-T and indigenous governments to implement 231 ‘imperative’ changes that need to be undertaken by society as a whole to address violence against indigenous women and girls and 2slgbtqqia persons.290
While Canada’s initiative to establish a national inquiry on this issue was regarded by the cedaw Cttee as a step forward that satisfied one of the 38
5.4.9 Brief Conclusion
Canada’s follow-up to the cos regarding the 6th and 7th periodic reports did not provide, as requested by the cedaw Cttee, any firm commitment toward establishing a national inquiry into the issue of mmiwg. After the cedaw Committee launched its own inquiry into the matter in 2012,293 the Trudeau administration (2015-) later committed $54 million over more than a three-year period to the National Inquiry on mmiwg.294 While this was regarded by the cedaw Cttee as a step forward, the Committee remained concerned that Canada had not provided a concrete plan to action 37 outstanding recommendations stemming from its 2012 inquiry.295
5.5 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
5.5.1 Incorporation and Reliance by Organs of State
Treaty incorporation into domestic law: Canada relies on an incomplete patchwork of constitutional and statutory protections, policies, and programmes to implement cat, including the Canadian Charter of Rights and Freedoms, the Criminal Code, the Immigration and Refugee Protection Act, the Extradition Act, and the Corrections and the Conditional Release Act.296 However, some provisions of cat have been specifically incorporated in Canadian law. The Convention’s definition of torture is directly referenced in the Immigration and Refugee Protection Act’s definition of a ‘person in need of protection’ as it applies to the principle of non-refoulement.297 The criminal offence of
Policies based on/related to cat: There have also been several policy developments through court rulings and acts of legislature which indirectly rely on the provisions or general principles of cat. In 2014, the Supreme Court of Canada in Kazemi Estate v Iran recognised the prohibition of torture as a peremptory norm of international law.299 Following a 2015 Federal Court of Canada decision,300 unsuccessful refugee claimants originating from designated countries now have the right to appeal initial determinations made against them by the Refugee Appeal Division of the Immigration and Refugee Board.301
5.5.2 Use of the Treaty by Domestic Courts
In Kazemi Estate v Iran, the Supreme Court of Canada held that while any acts of torture committed by Canada ‘would breach international laws and principles that are binding on Canada’, these acts would ultimately be deemed illegal under the Criminal Code and contrary to the Charter section 12 prohibition of cruel and unusual treatment or punishment.302 The Kazemi decision demonstrates the extent to which provisions of cat are relied on as a guide for the interpretation of Canadian law rather than as a source of legal remedy per se. In France (Republic) v Diab the Ontario Court of Appeal interpreted article 15 of cat in finding that extradition should not be authorised where there is a significant risk that the requesting state will use torture to obtain evidence from the extradited person.303 The Alberta Court of Appeal’s decision in United States v ‘Isa, also interpreted article 15 of cat to highlight the inadmissibility of evidence obtained by torture.304
5.5.3
Legal community: cat has received treatment in reports or findings by ombudsman and human rights institutions, civil liberties associations, and civil society organizations. The subjects of these reports range from the treatment of inmates in corrections facilities and the failure to conduct legally mandated inspections of these facilities under the norms set out by cat; to coordinated efforts between civil society and the cat Cttee to stop the forced sterilisation of (indigenous) women; and Canada’s reluctance to adopt op-cat, despite stating that it would do so.305
ngos and civil society: The cat mechanisms and processes have also been appealed to by concerned citizens turned advocates. Nurses Linda MacDonald and Jeanne Sarson appeared before the cat Cttee in 2012 to seek its assistance in convincing the Canadian government to define non-state torture as a distinct crime.306 As health practitioners, they had seen first-hand the effects of electric shocking, water torture, confinement in basements, mutilation and maiming, among other inhumane and cruel acts. While these acts are already considered crimes, they argued that protracted abuse linked to torture is not captured by currently labelled crimes such as aggravated assault. Accordingly, the cat Cttee recommended that Canada amend the Criminal Code to include non-state torture as a distinct crime. The pair returned to the Committee in 2018 to increase pressure following Canada’s failure to implement the Committee’s recommendation.307
National human rights institutions: The Canadian Human Rights Commission (chrc) has made two submissions under cat.308 This does not represent frequent and consistent use of the treaty, but the chrc have made submissions for the last two periodic reviews and hopefully this is a continuing trend.
5.5.4 State Reporting and Its Impact
Pertinent issues in cos recommendations: The cat Cttee begins the 7th and latest cos to Canada’s periodic report for review309 by addressing pending follow-up issues from the previous reporting cycle.310 These include ensuring that the legal mechanism for detention and deportation under the Immigration and Refugee Protection Act – the security certificate process – is consistent with relevant safeguards in international law.311 The Committee also found that while section 10 of the Charter provides de jure procedural safeguards, such as the right to be promptly informed of the reasons for detention and the right to ‘retain and instruct counsel without delay’, little information was provided on institutional procedures available to ensure the application of these safeguards.312 Other issues raised included the misuse of solitary confinement; the lack of statistics regarding complaints of torture received through prison complaint mechanisms; deaths in custody; and the need for adequate redress for torture and other inhumane treatment of Canadians detained abroad.313
Implementation of recommendations in cos: In line with the Committee’s recommendation, the Canada Border Services Agency introduced alternatives to detention in July 2018, including electronic monitoring and community supervision.314 However, contrary to the Committee’s recommendations, Canada has left open the possibility of indefinite immigration detention.315 Canada justifies this policy by appealing to the 2007 Supreme Court of Canada
Regarding the torture of Canadians detained abroad, and in light of the findings of the Iacobucci Inquiry,318 the cat Cttee welcomed government compensation and a formal apology to three Canadians tortured by Canadian officials but regretted ‘the absence of prosecutions related to Canadian involvement in these alleged offences’.319
5.5.5 Impact of Individual Communications and Their Impact
Around 70 individual communications have been submitted to the cat Cttee against Canada. The cat Cttee found violations in nine of these communications, one instance predating the current study period, and eight adopted after 30 June 1999.320 Most of the communications dealt with the obligation not to return non-nationals to places where they face a serious risk of being tortured or experiencing ill-treatment upon their return. The majority of complaints were found inadmissible or discontinued. In one high-profile case, Boily v Canada, the Committee determined that Canada violated cat when it extradited Boily to Mexico where he faced torture. The Committee ordered Canada to review its system of diplomatic assurances. There is no follow-up to the jurisprudence report on record under cat, so it is difficult to provide full information on the impact of this communication. According to media
Domestic issues ripe for submission to treaty body that have not been submitted: One domestic issue that might be ripe for submission is the involuntary sterilisation of indigenous women and women with disabilities. Sterilisation without informed consent has been allegedly performed in Canada as recently as 2018.322
A House of Common Committee is currently examining this issue as is a F-P-T task force established by Health Canada.323 These developments came after the cos to Canada’s 7th periodic report, which call on Canada to investigate all allegations of involuntary sterilization.324 The cos also recommended criminalizing coerced sterilization.
5.5.6 Brief Conclusion
It is difficult to provide a comprehensive analysis on the tangible impact of the treaty body’s jurisprudence as Canada did not submit any follow-up reports to the cat Cttee’s views. Moreover, Canada has a mixed record of implementing cos made by the cat Cttee. While Canada has adopted less severe alternatives to detention where appropriate, it has also decided to leave open the possibility of indefinite immigration detention despite the cat Cttee’s concerns.
5.6 Convention on the Rights of the Child
5.6.1 Incorporation and Reliance by Organs of State
The cos of the crc Cttee for the 3rd and 4th periodic reports of Canada expressed concern ‘at the absence of legislation that comprehensively covers the full scope of the Convention in national law’.325 While this broad issue
5.6.2 Policies and Programmes
Canada’s 3rd and 4th reports for periodic review also outline specific policy initiatives undertaken by Canada in consultation with various stakeholders to promote observance of the treaty requirements. In 2004, Canada launched its National Action Plan for Children, A Canada Fit for Children, as a response to commitments it made at the 2002 UN Special Session on Children.329 Also in 2004, Canada implemented the National Strategy to Protect Children from Sexual Exploitation on the Internet.330 In June 2012, Canada launched a four-year National Action Plan to Combat Human Trafficking.331 In addition to these initiatives, the federal government provides funding support to non-profit organisations to promote the principles of crc. Canada has funded a child-friendly version of op-crc-ac and conferences which provide training for first nation youth facilitators, adults, and community workers on the crc.332
At the provincial level, Ontario enacted the Child, Youth and Family Services Act in April 2018 with the explicit aim ‘to be consistent with and build upon the principles expressed in the United Nations Convention on the Rights of the
It is difficult to assess budgetary commitments in light of the treaty because, as the crc Cttee notes, Canada does not use a ‘child-specific approach for budget planning and allocation’ at the F-P-T levels.335 Moreover, Canada’s 3rd and 4th reports fail to provide any specific, concrete details on expenditure in relation to child-or youth-related programmes that different levels of government are undertaking.336 This makes it a serious challenge to assess the impact of financial or other material investments in crc and in children.
5.6.3 Use by Domestic Courts
In Baker v Canada, the majority of the Supreme Court of Canada held that crc is not directly implemented in Canadian law and therefore could not form the basis of a legal claim before a Canadian court.337 The majority of the Supreme Court found that while ‘the legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional’,338 the provisions of crc ‘have no direct application within Canadian law’, although the provisions could still serve as a source for finding the values and principles behind Canadian law.339 Accordingly, the majority held that the treaty’s guiding principle of the ‘best interests of the child’ should have been a prime factor informing government decision making concerning children in this case, despite crc not being incorporated into domestic law.340 Following Baker, crc has received explicit treatment as an interpretative guide on questions pertaining to child pornography,341 youth protection services,342 corporal punishment,343 privacy, and the protection of children from cyberbullying.344
5.6.4
crc is sometimes relied on as part of the toolkit in ngo advocacy to put pressure on Canada when the government acts in a manner inconsistent with the treaty. The most common use of crc by ngos in this respect is in alternative reports to the crc Cttee. unicef Canada and the Canadian Coalition on the Rights of the Child (ccrc) in particular have also taken initiatives to translate crc, Canada’s reports and correspondences with the UN, and other supporting documents in child-friendly language.345
The input of over 100 ngos was sought for Canada’s 3rd and 4th periodic reports.346 Throughout these consultations, ngo participants noted the lack of opportunities for meaningful participation in the periodic review process by Canadian youth and children in attendance. They also noted that Canada’s 3rd and 4th reports to the Committee lacked a focused and coherent strategy for giving effect to the obligations of the treaty.347
5.6.5 State Reporting and Its Impact
Pertinent issues in recommendations in cos: Some of the main concerns expressed in the cos to the 3rd and 4th report were carried over from Canada’s initial periodic report under the treaty. They include incomplete domestic implementation of the crc and its Optional Protocols and Canada’s failure to follow the crc Cttee’s recommendation to withdraw its reservation to article 37(c) (deprivation of a child’s liberty).348 Emerging issues raised in the cos to the 3rd and 4th periodic reports include the National Plan of Action for Children’s lack of a ‘clear division of responsibilities, clear priorities, targets
Implementation of recommendations of cos: Canada’s level of engagement with cos and its commitment to implementing the recommendations therein are difficult to gauge because there are no official follow-up reports to cos on record in the UN treaty body database. The Committee notes in the cos to the 3rd and 4th periodic reports that a number of recommendations from the initial and 2nd country reports were not fully addressed or sufficiently implemented by the federal government. These include inadequate data collection and a lack of mechanisms for independent monitoring and reporting of the situation of children in Canada; and issues of particular concern to children, including: adoption; corporal punishment; economic exploitation; and juvenile justice.354
5.6.6 Brief Conclusion
Canada’s lack of engagement in the crc Cttee’s monitoring processes makes it difficult to gauge the impact of the treaty at the domestic level. At the time of writing Canada has not issued a follow-up to the Committee’s cos to indicate why many of the recommendations from the initial and 2nd reports still have not been implemented. The Supreme Court of Canada’s treatment of crc in a landmark case, Baker v Canada, has helped define the place of human rights treaties in Canadian law. Following Baker, crc has received explicit treatment as an interpretative guide in cases regarding child pornography, youth protection services, corporal punishment and the protection of children from cyberbullying.
5.7
5.7.1 Incorporation and Reliance by Organs of State
crpd is partially implemented by a patchwork of constitutional, statutory, and administrative protections. These include the explicit guarantee of equal treatment for persons with disabilities (pwds) under section 15 of the Canadian Charter of Rights and Freedoms, which is similar to article 5 of crpd;355 the Canadian Human Rights Act, which protects pwds from discrimination when they are employed by, or receive services from, the federal government or entities regulated by the federal government;356 and other F-P-T laws, policies, and programmes covering issues that particularly affect pwds, such as minimum standards for the accessibility of built environments, disability insurance and other social supports.357
The obligations of crpd may also be implemented through the Accessible Canada Act.358 The Act explicitly references the treaty and sets the goal of making Canada barrier-free by 2040.359 Generally, the Act has been welcomed by disability groups and stakeholders, given that only three provinces (Manitoba, Nova Scotia and Ontario) have passed accessibility legislation to set a minimum standards on the accessibility of built environments.360
The definitions of ‘barrier’ and ‘disability’ and the principles (section 6) of the Accessible Canada Act may have been influenced by the language used in the Preamble and articles 1–4 of crpd. Moreover, Canada’s interpretative declaration regarding article 33(2) of crpd clarifies that the country will establish monitoring mechanisms at multiple levels of government through (quasi-) judicial and administrative bodies.361 So far, the Canadian Human Rights Commission is one body made responsible for monitoring the federal government’s implementation of crpd.362
5.7.2
The Accessible Canada Act establishes an accessibility commissioner and chief accessibility officer, both of whom are responsible for monitoring compliance with the Act.363
5.7.3 Collaborative Approach to Policy Making
Canada included pwds as members of the Canadian delegation in the negotiation and ratification of the crpd.364 Canada has also welcomed and supported ngos to participate in all conferences of state parties to crpd and hosted consultations on issues related to persons with intellectual disabilities; the Registered Disability Savings Plan; and the Canada Pension Plan disability benefit.365
5.7.4 Budget Allocations
Employment and Social Development Canada has allocated $11 million in annual funding for initiatives addressed barriers to social inclusion experienced by pwds.366 In 2013, up to $9 million was earmarked to support projects promoting the accessibility of physical environments.367 The Social Sciences and Humanities Research Council of Canada was allocated $7 million per year in the 2013 federal budget to conduct research on the labour market participation of pwds.368
5.7.5 Reliance by Domestic Courts
Canadian courts do not adjudicate crpd or directly apply its articles in their decisions due to a lack of implementation of the treaty into domestic law.
In Cole v Cole, the Ontario Superior Court considered whether an 18-year-old person with a disability was a ‘child of the marriage’ under the federal Divorce Act,369 or whether they were an adult who should be provided with the support to exercise their own legal capacity and decision-making powers.370 Under the Divorce Act, ‘a child of the marriage’ may be a person who ‘is the age of majority or over and under their charge but unable, by reason of illness, disability
5.7.6 Impact on and through Non-state Actors and Independent State Institutions
ngos and civil society organisations: Given that crpd offers rights to persons with disabilities that are more expansive than Canadian law, public interest litigation, as demonstrated by Cole v Cole, is making use of the crpd provisions in the hope of broadening the scope of domestic laws that touch on disability rights. crpd may also be used in ngo advocacy strategies to pressure the government to do more for pwds by enacting legislation to fully implement crpd. The most common use of the treaty is in the submission of alternative reports by ngos and civil society organisations. Some ngos have engaged in knowledge sharing practices and have submitted a joint submission.373
5.7.7 State Reporting and Its Impact
The Committee’s cos to the initial report made recommendations on several fronts, including to implement crpd across all levels of government and withdraw the declaration and reservation to article 12 which purportedly preserves substitute decision making counter to the human rights model of disability.375 Additionally, the lack of quantitative and qualitative data on these issues make it difficult for the Committee to assess the gaps in exercise and enjoyment of rights of pwds compared to those who do not live with disabilities.
5.7.8 Individual Communications and Their Impact
Canada ratified op-crpd only in 2018, and as yet there are no individual communications or inquiries on record in the UN treaty body database.
5.7.9 Brief Conclusion
There is no official follow-up from Canada to the latest cos. The upcoming report for periodic review will give Canada a chance to explain measures it has taken to improve its efforts to implement crpd.
6 Conclusion
General trends and lessons learned: In December 2001 the Standing Senate Committee on Human Rights released its first report dealing exclusively with Canada’s performance on implementing its international human rights obligations.376 The report noted that the biggest issue across the previous two decades was ‘the gap … between our willingness to participate in human rights instruments at the international level and our commitment to ensuring that the obligations contained in these instruments are fully effective within
The impact of state reporting, inquiries and other interim measures: Treaty body recommendations stemming from the cos appear to have spurred important nation-wide initiatives to address some of Canada’s long standing human rights issues.
The federal government’s commitment to national action plan for mmiwg and a national reconciliation framework: Following the cedaw Committee’s inquiry into the issue of mmiwg in 2012,378 the Trudeau administration (2015-) committed $54 million over more than a three-year period to the National Inquiry on mmiwg.379 The National Inquiry report calls on F-P-T and indigenous governments to implement 231 ‘imperative’ changes to address violence against indigenous women and girls and 2slgbtqqia persons.380 While Canada’s initiative to establish a national inquiry on this issue was regarded by the cedaw Cttee as a step forward, the cedaw Cttee noted that Canada had not provided a formal plan to implement 37 outstanding recommendations.381 The UN High Commissioner for Human Rights has also put pressure on Canada to develop a national mmiwg action plan to fully implement the recommendations of the National Inquiry.382 In 2018 Canada also committed to adopting a national reconciliation framework informed by the recommendations (‘calls to actions’) of the Truth and Reconciliation of Canada for addressing the legacy and impact
National housing strategy: The cescr Cttee and the UN Special Rapporteur on Adequate Housing have labelled the housing situation in Canada a ‘national emergency’.386 Canada has responded with a national housing strategy. The strategy includes an investment of over $72 billion cad over 10 years with the aim of cutting homelessness in half, in part by renovating and modernising 300 000 homes, and building up to 160 000 new homes.387 Civil society organisations played a significant role in successfully petitioning the federal government to include the human right to housing – recognised in cescr – in the National Housing Strategy Act.388
Establishing an Ombudsperson for responsible business conduct abroad: In response to Canada’s 6th report under ccpr, the HRCttee recommended that Canada establish an independent mechanism with the power to investigate complaints of human rights abuses committed by Canada-based resource companies operating abroad.389 In January 2018 the Minister of International Trade announced the establishment of a Canadian Ombudsperson for Responsible Enterprise.390 While this measure follows the HRCttee’s recommendation, we
Direct impact on domestic law and policy: Despite the lack of direct and full incorporation of the core human rights treaties into Canadian law, parts of some human rights treaties have been given legal effect through acts of the legislature. Ontario’s Child, Youth and Family Services Act was enacted with the explicit aim ‘to be consistent with and build upon the principles expressed in the UN Convention on the Rights of the Child’.392 Moreover, there are encouraging signs that a significant part of crpd will be implemented in law by way of Canada’s Accessible Canada Act.393 The Act explicitly references the treaty and sets the goal of making Canada barrier-free by 2040.394
Difficulty monitoring the implementation of treaty body recommendations in cos: Examples detailing the implementation of Concluding Observation recommendations are few and far between. Generally, it is difficult to assess whether Canada has effectively implemented the cos because of serious, cross-cutting issues tied to knowledge management and a lack of self-critical assessment in Canada’s reports. Canada’s reports tend to identify initiatives that purport to fulfil Canada’s treaty obligations, often without indicating how these initiatives will be implemented or whether past initiatives have been implemented and adequately monitored. The result is a series of reports that detail government initiatives without conducting a retrospective analysis of whether the overall situation is ameliorating, has stayed the same, or is becoming worse. There are also great difficulties with monitoring and assessing Canada’s progress towards implementation of cos because there are relatively few follow-ups by the state. Given that there is no streamlined and dedicated mechanism for monitoring the implementation of Concluding Observation recommendations, the only way to monitor Canada through cos is to look for recurring issues, which could signal that those have not been fully addressed.
Difficulty giving legal effect to treaty provisions and individual communications: The promotion of treaty rights by way of judicial action constitutes indirect impact, because the treaties cannot give rise to a legal cause of action or remedy per se. This was well demonstrated by an Ontario Superior Court decision, Cole v Cole, which considered whether an 18-year-old person with a disability was a ‘child of the marriage’ under the federal Divorce Act,395 or whether they were an adult who should be provided with the support to exercise their own legal capacity and decision-making powers.396 The litigation guardian of the respondent requested that the Court apply the crpd which requires Canada to recognise and take appropriate measures to ensure that pwds can exercise legal and decision-making capacity on an equal basis with others.397 While the Court found the respondent’s argument ‘most interesting, and worthy of consideration’, the 18-year-old remained subject to the child custody order. This case illustrates how the reluctance to incorporate international human rights law into Canadian law can leave gaps in legal protection that disproportionately impact individuals and groups that are underserved by Canada’s legal system.
Treaties inform ngos advocacy: Some treaties feature prominently in the advocacy and outreach efforts of some ngos. For example, the Council of Canadians with Disabilities produces a range of very thorough and accessible articles, guidebooks, and other materials on the substantive aspects of crpd. These materials discuss Canada’s accession to crpd398 and op-crpd,399 provide guidance on how Canada can implement crpd by involving the disability
Treaties act as a benchmark upon which to evaluate Canada’s human rights performance and make demands on the state: Civil society actors have used the cerd Cttee reports as a benchmark to assess Canada’s performance under the treaty, make direct demands, and, where appropriate, bring shame on different levels of government for their lack of progress. In 2011 the Native Women’s Association of Canada (nwac) and Feminist Alliance For International Action (fafia) Canada requested that cedaw Cttee conduct an inquiry into the murders and disappearances of indigenous women and girls in Canada, given that the federal government in power at the time were not inclined to undertake such an inquiry.402 nwac and fafia were instrumental in coordinating with the Committee to successfully pressure Canada to launch a national inquiry into mmiwg in 2015.
ngos act as additional mechanisms for monitoring Canada’s compliance with treaty obligations: The Canadian Coalition for the Rights of Children (ccrc) has established a mechanism to monitor Canada’s compliance with crc and aims to be an active participant in the upcoming 5th and 6th periodic review of Canada.403
Treaty body committee sessions as a space for civil society advocacy on legal reform: The cat mechanisms and processes have also been appealed to by concerned citizens turned advocates. Nurses Linda MacDonald and Jeanne Sarson appeared before the cat Cttee in 2012 to seek its assistance in convincing the Canadian government to define non-state torture as a distinct crime.404 As health practitioners, they had seen first-hand the effects of electric shocking, water torture, confinement in basements, mutilation and maiming, among other inhumane and cruel acts. While these acts are already considered crimes,
Government of Canada, ‘Anniversary of the Statute of Westminster’ (19 October 2017) <
Michael D Behiels, ‘The making of a deal: Trudeau, patriation and the Charter’ Policy Options (1 December 2011) <
Richard Foot, ‘Canadian Charter of Rights and Freedoms’ Canadian Encyclopedia (28 February 2018) <
Mark Tushnet, ‘The Charter’s Influence Around the World’ (2013) 50 (3) Osgoode Hall Law Journal 527–546; John Ibbitson, ‘The Charter Proves to be Canada’s Gift to the World’ The Globe and Mail (15 April 2012) <
The Minister of Justice is required by statute to ensure that federal legislation is in conformity with the Bill of Rights and the Charter of Rights and Freedoms. Canadian Bill of Rights sc 1960, ch 44 s. 3; Department of Justice Act rsc 1985, ch J-2, s 4.1; and Statutory Instruments Act rsc 1985, ch S-22, s 3.
United Nations, ‘Core Document Forming Part of the Reports of States Parties’ Canada (12 January 1998) (hri/core/1/Add.91); Department of Justice, ‘International Human Rights Law – Roles and Responsibilities’ Government of Canada (5 August 2021) <
ibid.
ibid.
Canadian Heritage, ‘About human rights’ Government of Canada (23 December 2020) <
United Nations, ‘Core Document Forming Part of the Reports of States Parties’ Canada (12 January 1998) (hri/core/1/Add.91); Department of Justice, ‘International Human Rights Law – Roles and Responsibilities’ Government of Canada (5 August 2021) <
Examples of free-standing legislation intended to implement a treaty include the Crimes Against Humanity and War Crimes Act sc 2000, ch 24 implementing the Rome Statute of the International Criminal Court; the Geneva Conventions Act, implementing the Geneva Conventions for the Protection of War Victims; the North American Free Trade Agreement Implementation Act, implementing the North American Free Trade Agreement (nafta); and the Canada-European Union Comprehensive Economic and Trade Agreement Implementation Act sc 2017, ch 6 implementing the agreement of the same name.
See Laura Barnett, ‘Canada’ Approach to the Treaty-Making Process: 3.3.2 Implementation’, Library of Parliament (November 2008) <
Standing Senate Committee on Human Rights, ‘Children: The Silenced Citizens – Effective Implementation of Canada’s International Obligations with Respect to the Rights of Children’ (April 2007) 9‑15 <
Anne Bayefsky and Gillian Collins, ‘Canada’ in Christof Heyns and Frans Viljoen (eds) ‘The Impact of the United Nations Human Rights Treaties on the Domestic Level’ (Kluwer Law International 2002) 115.
Charles R Epp ‘Do Bills of Rights Matter? The Canadian Charter of Rights and Freedoms’ (1996) 90 American Political Science Review 765.
The findings of these commissions are enforced only by means of rights and procedures laid out in legislation, as opposed to ordinary recourse through the court system. Moreover, these statutory rights found in legislation applicable to human rights commissions overlap with, but do not mirror, the rights protected constitutionally. See Nancy Holmes, ‘Human Rights and the Courts in Canada’ Law and Government Division, Government of Canada (2001) <
Standing Senate Committee on Human Rights, ‘Promises to Keep: Implementing Canada’s Human Rights Obligations’ (December 2001) s I(B) <
Canadian Human Rights Act rsc 1985, ch H-6, ss 26–38.3.
Employment Equity Act sc 1995, ch 44, s 22.
Canadian Human Rights Act, s 28.1.
Nancy Holmes, ‘Human Rights Legislation and the Charter: A Comparative Guide’ Law and Government Division, Government of Canada (1997) <
ibid ss 48.1–48.4.
Canadian Human Rights Tribunal, ‘Instructions’ <
ibid.
Foot (n 3); Daniel Schwartz, ‘6 Big Changes the Charter of Rights has Brought’ cbc (17 April 2012) <
Foot (n 3).
R v Morgentaler [1988] 1 scr 30.
Vriend v Alberta [1998] 1 scr 493.
Civil Marriage Act sc 2005, ch 33.
Thomas Isaac, ‘Balancing Rights: The Supreme Court of Canada, R v Sparrow, and the Future of Aboriginal Rights’ (1993) 13(2) The Canadian Journal of Native Studies 210: Isaac argues that the aboriginal and treaty rights contemplated in R v Sparrow were subject to a ‘justificatory analysis’ that is similar to the reasonable limits tests found in s 1 of the Charter of Rights and Freedoms, as interpreted by R v Oakes.
R v Sparrow [1990] 1 scr 1075; Schwartz (n 23).
‘Canada: Events of 2018’ Human Rights Watch (2018) <
‘Canada: Events of 2017’ Human Rights Watch (2017) <
Desmond Cole, The Skin We’re In: A Year of Black Resistance and Power (Doubleday Canada 2020).
Audrey Macklin, ‘From Cooperation, to Complicity, to Compensation: The War on Terror, Extraordinary Rendition, and the Cost of Torture’ (2008) 10 European Journal of Migration and Law 11.
An Act to foster adherence to State religious neutrality and, in particular, to provide a framework for requests for accommodations on religious grounds in certain bodies, R-26.2.01 (2017); Jacques Boissinot, ‘How Will Quebec’s Bill 62 Work? What We Know (and Don’t) So Far’ The Globe and Mail (24 October 2017) <
Government of Canada, ‘Universal Periodic Review’ (03 July 2019) <
upr Info, ‘Recommendations’ (upr Info nd) <
United Nations Human Rights Office of the High Commissioner, ‘Standing Invitations’ United Nations Human Rights Office of the High Commissioner (nd) <
United Nations Human Rights Office of the High Commissioner, ‘View Country Visits of Special Procedures of the Human Rights Council Since 1998’ United Nations Human Rights Office of the High Commissioner (nd) <
The American Convention on Human Rights oas Treaty Series No 36; 1144 unts 123; 9 ilm 99 (1969).
Senatorial Committee on the Rights of the Person (Canada), Report, ‘Enhancing Canada’s Role in the oas: Canadian Adherence to the American Convention on Human Rights: Government Concerns’ Parliament of Canada (May 2003) s iv <
ibid.
ibid; Committee Evidence, 18 March 2002 8:11 (John Holmes).
In 2014 the Inter-American Commission on Human Rights released a report expressing the need for a national inquiry into the issue of missing and murdered indigenous women and girls in Canada. See Inter-American Commission on Human Rights (iachr), ‘Missing and Murdered Indigenous Women in British Columbia, Canada’, oea/Ser.L/v/ii Doc 30/14 (21 December 2014) <
Government of Canada, ‘Canada and the International Criminal Court’ (26 February 2019) <
Organization of American States, ‘Report of the General Secretariat of the Organization of American States and the Panel of Independent International Experts on the Possible Commission of Crimes Against Humanity in Venezuela’ (29 May 2018) <
cbc News, ‘Canada joins multilateral move to take Venezuelan government to International Criminal Court’ (25 September 2018) <
Kindred, Hugh M, Phillip M. Saunders, and Robert J. Currie, International Law, Chiefly as Interpreted and Applied in Canada: Eighth Edition (2014) at 150.
Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 scr 817 is a leading example.
Gib van Ert, ‘Dubious Dualism: The Reception of International Law in Canada’ (2010) 44 Val U L Rev 930; Stéphane Beaulac, ‘Customary International Law in Domestic Courts: Imbroglio, Lord Denning, Stare Decisis’ in CPM Waters (ed), British and Canadian Perspectives on International Law (Martinus Nijhoff 2006) 379.
Canada ratified cerd on 14 October 1970.
Canada ratified ccpr on 19 May 1976.
Canada ratified cescr on 19 May 1976.
Canada ratified cedaw on 10 December 1981.
Canada ratified crc on 13 December 1991.
Canada ratified cat on 24 June 1987.
Canada ratified crpd on 11 March 2010.
‘The Core International Human Rights Treaties and Their Monitoring Bodies’ ohchr <
The Optional Protocol to ccpr (complaint mechanism) (1976) (op1-ccpr) was ratified by Canada on 19 May 1976.
Canada ratified the Optional Protocol to cedaw (complaint mechanism) (2002) (op-cedaw) on 18 October 2002.
The complaint process for alleging a violation of cat is found in art 22 of the treaty itself.
The Optional Protocol to the Convention on the Rights of Persons with Disabilities (2018) (op-crpd) was ratified by Canada on 3 December 2018.
‘International Complaints: Complaints Under the International Human Rights Treaties’ Government of Canada (25 January 2019) <
ibid.
Government of Canada, ‘Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Sixth Report of Canada’ (4 October 2010); United Nations, Committee against Torture, ‘Consideration of Reports Submitted by States Parties under Article 19 of the Convention, cos of the Committee against Torture’ (25 June 2012) (cat/c/can/co/6).
Standing Senate Committee on Human Rights (n 17) s (I)(C)(2)(b)(iii), citing Gérald-A Beaudoin, with the collaboration of Pierre Thibeault, Le fédéralisme au Canada (Wilson & Lafleur 2000) 882; Noël Kinsella, ‘Some Historical Notes on the Establishment of the Continuing Committee of Officials Responsible for Human Rights’ (nd).
Dominique Clément, ‘Human Rights in Canadian Domestic and Foreign Politics: From “Niggardly Acceptance” to Enthusiastic Embrace’ (2012) 34 Human Rights Quarterly 751–778.
ibid.
‘The Core International Human Rights Treaties and Their Monitoring Bodies’ ohchr <
cmw, ‘Human Rights Commitments’ (2015) <
Preamble, International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, adopted by General Assembly Resolution 45/158 of 18 December 1990 <
Canada Council for Refugees, ‘Migrant Workers – The Issues’ <
Universal Periodic Review, ‘Report of the Working Group on the Universal Periodic Review: Canada’ a/hrc/11/17/Add.1 8 (June 2009) <
Amir Attaran, ‘The Ugly Canadian: Forget Middle Power. Forget Model Citizen. We’re Becoming One of the Bad Kids on the Block’ (2009) Literary Review of Canada <
Chris Arsenault, ‘Native Women “Disappear” in Canada’ Al Jazeera (19 September 2010) <
The Philippines passed the landmark Anti-Enforced or Involuntary Disappearance Act in December 2012, making it the first country in Asia to criminalise the practice of enforced and involuntary disappearance; see Embassy of Canada in the Philippines, ‘Canada Supports Asia’s First Anti-Disappearance Law’ <
ohchr, ‘Working Group on Enforced or Involuntary Disappearances’ <
UN Treaty Collection (untc), crc, Reservations made by Canada <
ibid.
UN Treaty Collection (untc), crpd, Reservations Made by Canada <
Committee on the Rights of Persons with Disabilities, ‘cos on the Initial Report of Canada’ (crpd/c/can/co/1; 8 May 2017) paras 7–8.
Standing Senate Committee on Human Rights (n 16).
Jennifer Ditchburn, ‘“Because it’s 2015”: Trudeau forms Canada’s 1st gender-balanced cabinet’ (6 November 2015) <
Justin Trudeau, Speech: ‘Advancing gender equality and women’s empowerment’ (10 June 2018)<
cedaw/c/can/co/8-9 (18 November 2016) paras 7–9.
Link to previous Canadian Coalition for the Rights of Children (ccrc) reports <
Council of Canadians with Disabilities, ‘Canada and the crpd Archives’ <
Council of Canadians with Disabilities, ‘Open Letter: Recognising Two Important Rights Milestones of 2018’ (21 December 2018) <
Council of Canadians with Disabilities, ‘Review of Canada’s Accession to the UN op-crpd’ (16 March 2017) <
Council of Canadians with Disabilities, ‘Canada and the crpd Archives’ <
Council of Canadians with Disabilities, ‘crpd – 10 Facts Canadians Should Know’ <
National Union of Public and General employees, ‘Dec. 3: International Day of Persons with Disabilities’ <
St Thomas University, ‘Programme Structure’ <
‘Canada Commits “Grave Violation” of Rights of Aboriginal Women: UN Report’ cbc (10 March 2015) <
Mali Ilse Paquin, ‘Unsolved Murders of Indigenous Women Reflect Canada’s History of Silence’ The Guardian (25 June 2015) <
Tom McCarthy, ‘Canada Has Failed to Protect Indigenous Women From Violence, Says UN Official’ The Guardian (12 May 2015) <
Amira Elghawaby, ‘Canada’s Hate Crime Statistics Only Tell Part of the Story’ Ottawa Citizen (7 December 2018) <
‘UN Human Rights Committee Grills Canada Over Mining, Aboriginal Treatment’ cbc News (8 July 2015) <
Cape Breton University, ‘Children’s Rights Centre’ <
New Brunswick Child and Youth Advocate, ‘International Summer Course on the Rights of the Child’ New Brunswick Child and Youth Advocate (nd) <
Bayefsky and Collins (n 13) 129–131.
Admed El-Obaid and Kwadwo Appaigyei-Atua, ‘Human Rights in Africa: A New Perspective on Linking The Past to the Present’ (1996) 41 McGill Law Journal 819; Nihal Jayawickrama, ‘The Right of Self-Determination: A Time for Reinvention and Renewal’ (1993) 57 Saskatchewan Law Review 1–19; Robert E Robertson, ‘The Rights to Food – Canada’s Broken Covenant’ (1989–90) 6 Canadian Human Rights Yearbook 185.
Darcel Bullen, ‘A Road to Home: The Right to Housing In Canada and Around the World’ (2015) 24 Journal of Law and Social Policy 1–9; Meghan Campbell, ‘Monitoring Women’s Socio-Economic Equality under the icescr’ (2018) 30(1) Canadian Journal of Women and the Law 82; Martha Jackman and Bruce Porter, ‘Justiciability of Social and Economic Rights in Canada’ in M Langford (ed), Socio-Economic Rights Jurisprudence: Emerging Trends in Comparative International Law (Cambridge University Press 2013).
Ryszard Cholewinski, ‘The Racial Discrimination Convention and the Protection of Cultural and Linguistic Ethnic Minorities’ (1991) 69(3) Rev D Inter 157.
hri/core/1/Add.91 paras 164–168.
ibid.
ibid para 166.
ibid para 165.
ibid para 168.
Bayefsky and Collins (n 13) 116.
Bayefsky and Collins (n 13) 132; Committee on the Elimination of Racial Discrimination, ‘Membership’ ohchr <
Committee on the Elimination of Racial Discrimination, ‘Elections’ ohchr <
Bayefsky and Collins (n 13) 132.
ibid.
‘Membership of the Human Rights Committee 1977 to 2014’ ohchr <
‘um Law alumna Marcia V.J. Kran re-elected to UN Human Rights Committee’ um Alumni <
Bayefsky and Collins (n 13) 132.
ibid; Canada – Alternative Report to cedaw, submitted by Canadian Women’s ngos as represented by the National Action Committee on the Status of Women, January 1997.
Committee on the Elimination of Discrimination Against Women, ‘cedaw Elections’ <
Bayefsky and Collins (n 13) 132; ‘Peter Burns’ Peter A Allard School of Law, ubc <
‘Past Membership of the Committee on the Rights of the Child (1991–2003)’ ohchr <
Committee on the Rights of Persons with Disabilities, ‘Elected Members of the Committee on the Rights of Persons with Disabilities’ ohchr <
Standing Senate Committee on Human Rights (n 17) ss I(C)(2)(a) and iii-e.
ibid s I(C)(2)(b).
Reference Re Public Service Employee Relations Act (Alta) [1987] 1 scr 313 para 59; Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia [2007] 2 scr 391 para 70; Quebec (Attorney General) v 9147–0732 Québec Inc 2020 scc 32 para 31.
Standing Senate Committee on Human Rights (n 16) ss s I(C)(2)(a).
ibid ss i(C)(1) and iii(E).
Constitution Act 1867, s 92.
Standing Senate Committee on Human Rights, Committee Evidence, 4 June 2001 (Anne Bayefsky). Bayefsky noted: ‘If the provinces are able to say that they have no obligation to adhere to those international obligations, and the federal government is able to say that it has no obligation to do more than encourage them, what does our ratification mean?’.
See part 5.1 below.
Lara Koerner Yeo, ‘A Comment: the UN cedaw Committee’s Concluding Observations of Canada’ (2018) 14 Journal of Law & Equality 199, citing cedaw/c/op.8/can/1 paras 15–17.
Yeo (n 133), citing cedaw/c/can/co/8-9 para 26.
Canadian Multiculturalism Act (RSC 1985, ch 24 (4th Supp)).
ibid; cerd/c/can/21-23 para 10.
cerd/c/can/19–20 paras 79–82.
Canadian Human Rights Act r.s.c., 1985, c. H-6.
Employment Equity Act sc 1995, ch 44.
Government of Canada, ‘Federal Contractors Programme’ (21 February 2018) <
Government of Canada ‘Legislated Employment Equity Programme’ (4 May 2017) <
Government of Canada, ‘Canada’s Anti-Racism Strategy’ Government of Canada (nd) <
cerd/c/can/21–23 (8 June 2016).
ibid (8 June 2016) para 28.
ibid para 107.
ibid para 108.
ibid at para 150.
‘One country’s example of promoting inclusion, justice, and respect for diversity’ (22 March 2018) ohchr <
R v Keegstra [1990] 3 scr 697.
Canada (Human Rights Commission) v Taylor [1990] 3 scr 892.
R v Zundel [1992] 2 scr 731.
R v Keegstra [1990] 3 scr 697 752.
Canada (Human Rights Commission) v Taylor [1990] 3 scr 892 919–920.
R v Zundel [1992] 2 scr 731.
Shree Paradkar, ‘ngos Tell UN Panel Canada is Failing on Ending Racism: Paradkar’ The Star (14 August 2017) <
The following ngos, indigenous groups, and other civil society actors have submitted alternative reports to the treaty Committee: nwac; ocasi; South Asian Legal Clinic; Chinese and South East Asian Legal Clinic; African Canadian Legal Clinic; Canadian Race Relations Foundation; crrar; kairos; Oxfam Canada; Amnesty International; the Canadian Council of Muslim Women; the Canadian Aboriginal aids Network (caan); the National Aboriginal Circle Against Family Violence; Alliance4Democracy; the Coalition for the Human Rights of Indigenous Peoples; the Canadian hiv/aids Legal Network; the National Council of Canadian Muslims; Mining Watch Canada; Interior Alliance of Indigenous Nations; Union of bc Indian Chiefs; Assembly of First Nations (Quebec & Labrador, bc); Mothers and Grandmothers of Maliseet Nations; Skeena Indigenous Groups; Algonquin Nation Secretariat; The Chiefs of Ontario; Union of bc Indian Chiefs; Onion Lake Cree Nation; Lubicon Lake Indian Nation; Mohawks of the Bay of Quinte; Roma Community Centre; The Haudenosaunee of Kanehsatàke; Six Nations of the Grand River; Nishnawbe Aski Nation (nan); and Tsilhqot’in Nation.
Cholewinski (n 104).
Canadian Human Rights Commission, ‘Submission by the Canadian Human Rights Commission to the United Nations Committee on the Elimination of Racial Discrimination on the Seventeenth and Eighteenth Periodic Reports of Canada under the International Convention on the Elimination of All Forms of Racial Discrimination’ (January 2007) <
cerd/c/can/co/21–23 (13 September 2017).
cerd/c/2007/1 paras 10–12.
cerd/c/can/co/19–20 para 20; cerd/c/can/co/21–23 (13 September 2017) para 20.
cerd/c/can/co/21–23 (13 September 2017) paras 19–20.
ibid paras 9–10.
ibid at paras 15–16.
cerd/c/can/co/21–23/add.1 (4 March 2019): cos on the twenty-first to twenty-third periodic reports of Canada, Addendum, Information received from Canada on follow-up to the cos Recommendations 34(a), (b) and (d) para 12.
ibid para 13.
ibid para 3.
‘Reference: cerd/100th/ewu/can/9026 ohchr’ (25 November-13 December 2019) <
‘Reference: cerd/89th/ewuap/gh/mja/ks’ (27 May 2019) <
‘Reference: cerd/90th/ewuap/gh/mja/ks’ ohchr (3 October 2016) <
‘Reference: cerd/91st/ewuap/sw/ks’ ohchr (13 December 2016) <
‘Reference: ts/jf’ ohchr (13 March 2009) <
Declaration on the Rights of Indigenous Peoples Act [sbc 2019] ch 44.
Standing Senate Committee on Human Rights (n 16); Human Rights Committee, 65th Session, ccpr/c/79/Add.105, 7 April 1999 para 10.
ccpr/c/can/2004/5 (18 November 2004) para 15; Government of Canada, ‘Deputy Minister Committees: Committee and Task Force Mandates and Membership’ (18 October 2019)<
Canadian Heritage, ‘About human rights’ Government of Canada (23 December 2020) <
Bayefsky and Collins (n 13) 132; Walter Tarnopolosky, ‘A Comparison Between the Canadian Charter of Rights and Freedoms and the International Covenant on Civil and Political Rights’ (1982) 8 Queens lj 211.
ccpr/c/can/2004/5 (18 November 2004).
ccpr/c/can/6 (28 October 2013).
ccpr/c/can/2004/5 (18 November 2004) paras 10–16; ccpr/c/can/6 (28 October 2013) paras 7–14.
ccpr/c/can/2004/5 (18 November 2004) paras 12–13.
ccpr/c/can/6 (28 October 2013) paras 10–12.
Canadian Foundation for Children, Youth and the Law v Canada (Attorney-General) 2004 scc 4 paras 32–49.
United States v Burns 2001 scc 7 paras 8, 87 and 93.
Suresh v Canada (Minister of Citizenship and Immigration) 2002 scc 1 paras 66–67 and 78.
ibid para 66–75.
The following ngos and civil society organisations have submitted alternative reports: Human Rights Watch; Canadian Human Rights Commission; Canadian Civil Liberties Association; fafia-afai; Native Women’s Association of Canada (nwac); Franciscans International; Canada Without Poverty; Privacy International; Mercy International Association; ilga North America; Aboriginal Title Alliances; Amnesty International; International Fellowship of Reconciliation; Quebec Human Rights Commissions; Canadian Federation of University Women; kairos; fiacat; and a statement by Lil’wat.
Bayefsky and Collins (n 13) 129 (fn 74).
ccpr/c/can/co/6 (13 August 2015) s C: Indigenous lands and titles.
ccpr/c/can/co/6 (13 August 2015) s C: Business and human rights.
ccpr/c/can/co/6 (13 August 2015) s C: Gender equality.
ccpr/c/can/co/6 (13 August 2015) s C: Prison conditions.
ccpr/c/can/co/6 (13 August 2015) s C: Violence against women.
ccpr/c/can/fco/25188/e (16 September 2016).
ccpr/c/can/fco/25188/e (16 September 2016) s 4.4; Haida Nation v British Columbia (Minister of Forests) [2004] 3 scr 511; Taku River Tlingit First Nation v British Columbia (Project Assessment Director) [2004] 3 scr 550; Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) [2005] 3 scr 388.
Indigenous and Northern Affairs Canada, ‘Aboriginal Consultation and Accommodation – Updated Guidelines for Federal Officials to Fulfil the Duty to Consult – March 2011’ <
As examples, see British Columbia <
ccpr/c/can/fco/25188/e (16 September 2016) s 4.3; Government of Canada, ‘Ongoing Negotiations’ <
Truth and Reconciliation Commission of Canada, Final Report (2015) <
Government of Canada, ‘Overview of a Recognition and Implementation of Indigenous Rights Framework’ (10 Sept 2018) <
Order in Council pc 2019–299 (8 April 2019) <
Business and Human Rights Resource Centre, ‘Canada Creates Independent Ombudsperson and Multi-Stakeholder Advisory Body to Strengthen Responsible Business Conduct Abroad’ <
Business and Human Rights Resource Centre (n 202).
ccpr/c/can/fco/25188/e (16 September 2016) (Interim measures following the sixth periodic report of Canada – International Covenant on Civil and Political Rights).
The number of individual communications include communications that were deemed inadmissible.
Waldman v Canada ccpr/c/67/d/694/1996 (3 November 1999); Judge v Canada ccpr/c/78/d/829/1998 (5 August 2002) (deportation); Ahani v Canada ccpr/c/80/d/195/2002 (29 March 2004); jt v Canada ccpr/c/89/d/1052/2002 (24 March 2007); Dauphin v Canada A/64/40 vol ii (2009) (28 July 2009) (deportation); Dumont v Canada ccpr/c/98/d/1467/2006 (16 March 2010) (effective remedy); Hamida v Canada ccpr/c/98/d/1544/2007 (18 March 2010) (deportation); Kaba v Canada ccpr/c/98/d/1465/2006 (25 March 2010) (deportation); Pillai v Canada ccpr/c/101/d/1763/2008 (25 March 2011); Warsame v Canada ccpr/c/102/d/1959/2010 (21 July 2011); Thuraisamy v Canada ccpr/c/106/d/1912/2009 (31 October 2012) (deportation); Shakeel v Canada ccpr/c/108/d/1881/2009 (24 July 2013) (deportation); Choudhary v Canada ccpr/c/109/d/1898/2009 (28 October 2013) (deportation); ahg v Canada ccpr/c/113/d/2091/2011 (25 March 2015) (deportation); dt & aa v Canada ccpr/c/117/d/2081/2011 (15 July 2016) (deportation); Saxena v Canada ccpr/c/118/d/2118/2011 (3 November 2016) (deportation); Contreras v Canada ccpr/c/119/d/2613/2015 (27 March 2017) (deportation); Budlakoti v Canada ccpr/c/122/d/2264/2013 (6 April 2018) (deportation); Toussaint v Canada ccpr/c/123/d/2348/2014 (24 July 2018); McIvor and Grismer v Canada ccpr/c/124/d/2020/2010 (1 November 2018).
Heather Conn, ‘Sandra Lovelace Nicholas’ Canadian Encyclopedia (10 January 2018) <
Sandra Lovelace v Canada, Communication No 24/1977 Canada 30/07/81, UN Doc ccpr/c/13/d/24/1977.
Toussaint v Canada, ccpr/c/123/d/2348/2014, 2018.
ibid ss 10 and 11.
Permanent Mission of Canada to the UN, ‘HRCttee 2348/2014 – Response to the Committee’s Views’ (genev-5356) (see <
ccpr/c/101/3 (25 May 2011).
Quebec Minister of Justice, ‘Quebec Guidelines on Compensation for Wrongfully Convicted and Imprisoned Persons’ <
cbc News, ‘Former Refugee Abdilahi Elmi Won’t Be Deported to Somalia Monday as Scheduled’ (23 August 2019) <
e/c.12/can/co/6 (23 March 2016) paras 5–6.
cescr, art 7.
cescr, art 8.
cescr, art 11.
cescr arts 9–10.
cescr, art 15.
e/c.12/can/co/6 (23 March 2016) para 6.
e/c.12/can/6 (23 April 2013) paras 43–46.
An Act to Amend the Canadian Human Rights Act sc 2008, ch 30.
e/c.12/can/6 (23 April 2013) paras 62–63.
Employment Equity Act sc 1995, ch 44.
e/c.12/can/6 (23 April 2013) para 74.
ibid paras 75–78.
Miloon Kothari, United National Special Rapporteur on Adequate Housing, ‘Preliminary Observations at the End of his Mission to Canada 9–22 October 2007’ a/hrc/7/16/Add.4 (Preliminary Observations).
Canadian Mortgage and Housing Corporation, ‘National Housing Strategy: What Is the Strategy?’ <
Social Rights Advocacy Centre, ‘Historic Recognition of the Right to Housing in the National Housing Strategy Act’ Social Rights Advocacy Centre (nd) <
Government of Canada, ‘What is the National Housing Strategy?’ (nd) <
Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia [2007] 2 scr 391 paras 72–77.
Saskatchewan Federation of Labour v Saskatchewan [2015] 1 scr 245 paras 62–70.
ibid paras 155–156.
2014 onca 852.
ibid para 15.
Ibid paras 16 and 19.
Canada Without Poverty, ‘cwp and the cescr’ <
ohchr, ‘UN Treaty Body Database’ (search results) <
El-Obaid Admed and Kwadwo Appaigyei-Atua ‘Human Rights in Africa: A New Perspective on Linking the Past to the Present’ (1996) 41 McGill Law Journal 819; Nihal Jayawickrama, ‘The Right of Self-Determination: A Time for Reinvention and Renewal’ (1993) 57 Saskatchewan Law Review (1993) 1; Robert E Robertson, ‘The Rights to Food – Canada’s Broken Covenant’ (1989–90) 6 Canadian Human Rights Yearbook 185.
Darcel Bullen, ‘A Road to Home: The Right to Housing in Canada and Around the World’ (2015) 24 Journal of Law and Social Policy 1–9.
Meghan Campbell, ‘Monitoring Women’s Socio-Economic Equality under the icescr’ (2018) 30 Canadian Journal of Women and the Law 82.
Martha Jackman and Bruce Porter, ‘Justiciability of Social and Economic Rights in Canada’ in M Langford (ed), Socio-Economic Rights Jurisprudence: Emerging Trends in Comparative International Law (Cambridge University Press 2013).
Canadian Human Rights Commission, ‘Submission to the Committee on Economic, Social and Cultural Rights on the Occasion of its Review of Canada’s 6th Periodic Report’ (February 2016) <
Canadian Human Rights Commission, ‘Submission to the Committee on Economic, Social and Cultural Rights in Advance of its Review of Canada’s 6th Periodic Report’ (February 2015) <
e/c.12/can/co/6 (23 March 2016).
Donor tracker: ‘Canada’s Total oda’ <
Conference Board of Canada, ‘How Canada Performs: Social Outcomes in the Territories’ (July 2017) <
Statistics Canada, ‘The gender wage gap in Canada: 1998 to 2018’ <
ibid.
End of mission statement by Dubravka Šimonović, United Nations Special Rapporteur on Violence against Women, Its Causes and Consequences, Official visit to Canada (23 April 2018)<
cedaw/c/can/co/8–9 paras 7–13. Additionally, Dubravka Šimonović, United Nations Special Rapporteur on Violence against Women, its Causes and Consequences, requested that Canada take the necessary steps to implement recommendations from the latest cobs by using cedaw General Recommendation 35 on gender-based violence against women as a unifying benchmark for harmonisation <
Canadian Charter of Rights and Freedoms, Constitution Act 1982 Part 1, s 15.
Zero Tolerance for Barbaric Cultural Practices Act sc 2015, ch 29.
Protecting Canadians from Online Crime Act sc 2014, ch 31.
Family Homes on Reserves and Matrimonial Interests or Rights Act sc 2013, ch 20.
Protection of Communities and Exploited Persons Act sc 2014, ch 25.
Gender Equity in Indian Registration Act sc 2010, ch 18.
Status of Women Canada, ‘Action Plan to Address Family Violence and Violent Crimes against Aboriginal Women and Girls’ (2014) <
Public Safety Canada, ‘National Action Plan to Combat Human Trafficking’ (2012) <
Indigenous and Northern Affairs Canada, ‘Federal Framework for Aboriginal Economic Development’ (2009) <
fafia-afai Canada, ‘Reply to Issues 3, 4, 7, 8, 11, 12 & 13: Report to the Committee on the Elimination of Discrimination against Women on the Occasion of the Committee’s Eighth and Ninth Periodic Review of Canada’ (October 2016) <
Government of Canada, ‘Strategy to Prevent and Address Gender-Based Violence’ <
Government of Canada, ‘Gender Equality: A Foundation for Peace: Canada’s National Action Plan 2017–2022 – For the Implementation of the UN Security Council Resolutions on Women, Peace and Security’ <
As examples, see Human Rights Watch, ‘Those Who Take Us Away’ (February 2013) <
Jennifer Ashawasegai Windspeaker, ‘UN to Do the Job that Canada Will Not’ (2012) <
ngos and civil society organisations have submitted 43 reports to the Committee. The following are ngos and civil society groups who have submitted reports: Feminist Alliance for International Action (faia); Canadian Voice of Women for Peace; for Women’s Autonomy, Rights and Dignity (forward); Fédération des femmes du Québec; Justice for Girls International; Amnesty International; Six Nations Traditional Women’s Council Fire and Haudenosaunee (The People); Human Rights Watch; Chinese & Southeast Asian Legal Clinic; Native Women’s Association of Canada; Voice of Women for Peace; African Canadian Legal Clinic; Canadian Human Rights Commission; Poverty and Human Rights Centre in Action; Global Initiative to End all Corporeal Punishment for Children; Action Canada for Sexual Health and Rights; Canadian hiv/aids Legal Network; Egale Canada Guman Rights Trust; Canada Without Poverty; Canadian Alliance for Sex Work Law Reform; Pivot Legal Society; DisAbled Women’s Network (dawn) Canada; EarthRights International; Indigenous Women Against the Sex Industry (iwasi); the Feminist Alliance for International Action (fafia/afai Canada); and the Ma Mawi Wi Chi Itata Centre.
Canadian Human Rights Commission, ‘Submission to the Committee on the Elimination of Discrimination Against Women in Advance of its Consideration of Canada’s 8th and 9th Periodic Reports’ (September 2016) <
cedaw/c/can/co/8–9, paras 7–9.
ibid paras 10–11.
ibid paras 14–15.
ibid paras 24–25.
ibid paras 38–39.
ibid paras 18–19.
ibid paras 12–13; ccpr/c/124/d/2020/2010 (Sharon McIvor and Jacob Grismer v Canada); Sandra Lovelace v. Canada, Communication No. R.6/24, U.N. Doc. Supp. No. 40 (A/36/40) at 166 (1981); Jessica Deer, ‘Indian Act Still Discriminates Against First Nations Women, Says UN Human Rights Committee’ cbc News (17 January 2019) <
cedaw/c/can/co/6–7.
ibid para 32.
cedaw/c/can/co/7/Add.1 para 41.
ibid para 43.
cedaw/c/51/d/19/2008 (28 February 2012) (Communication No 19/2008).
so v Canada (cedaw/c/59/d/49/2013) mpm v Canada (cedaw/c/51/d/25/2010) and Rivera v Canada (cedaw/c/51/d/25/2010).
ohchr, ‘Women’s Rights Body Rules on Kell v Canada Complaint’ (16 July 2012) <
Yeo (n 133, citing cedaw/c/op.8/can/1 paras 15–17).
cedaw/c/op.8/can/1.
ibid para 205.
ibid para 207–209.
ibid para 210.
ibid para 216.
National Inquiry into Missing and Murdered Indigenous Women and Girls (mmiwg Report) <
cbc News ‘231 “imperative” Changes: The mmiwg Inquiry’s Calls for Justice’ (2 June 2019) <
Yeo (n 133) citing cedaw/c/can/co/8–9 para 26.
Olivia Stefanovich, ‘“It’s Time for Implementation”: UN High Commissioner Urges Ottawa to Development National mmiwg Action Plan’ (17 June 2019) <
cedaw/c/op.8/can/1 paras 15–17.
mmiwg Report (n 289); Tasker (n 289).
Yeo (n 133), citing cedaw/c/can/co/8–9 para 26.
cat/c/can/7 para 4.
ibid para 14.
ibid.
ibid para 6.
yz v Canada (Citizenship and Immigration) 2015 fc 892.
cat/c/can/7 para 6; Immigration and Refugee Board of Canada, ‘Federal Court Decision Impacting the Right to Appeal to the Refugee Appeal Division’ <
cat/c/can/7 para 16; Kazemi Estate v Islamic Republic of Iran 2014 scc 62 para 52.
cat/c/can/7 para 17; France (Republic) v Diab 2014 onca 374.
cat/c/can/7 para 16; United States v ‘Isa 2014 abca 256.
See as examples, The Office of the Ombudsperson of British Columbia, ‘Under Inspection: The Hiatus in bc Correctional Centre Inspections’ (2016) <
Janice Dickson, ‘Nova Scotia Advocates to Tell UN Committee of Women’s “Non-State Torture” in Canada’ The Star (19 November 2018) <
Persons Against Non-State Torture <
Submission to cat on the occasion of its consideration of Canada’s 7th period report (October 2018); Submission to cat (April 2012).
cat/c/cat/can/co/7.
cat/c/cat/can/co/7 para 9 ff; cat/c/can/co/6 para 29.
cat/c/can/co/6 paras 12–13, 17; e/cn.4/2006/7/Add.2 para 92.
cat/c/cat/can/co/7 paras 10–13.
ibid paras 13–25.
Canada Border Services Agency (cbsa), ‘Alternatives to Detention Programme’ <
cat/c/can/7 para 38.
Charkaoui v Canada [2007] 1 scr 350 at 107.
Canada (Public Safety and Emergency Preparedness) v Chhina 2019 scc 29.
Also known as the ‘Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin’ <
cat/c/cat/can/co/7 paras 38–39.
Enrique Falcon Ríos v Canada cat/c/33/d/133/1999 (17 December 2004); Mostafa Dadar v Canada cat/c/35/d/258/2004 (5 December 2005); Bachan Singh Sogi v Canada cat/c/39/d/1297/2006 (16 November 2007); Régent Boily v Canada cat/c/47/d/327/2007 (14 November 2011); Singh v Canada cat/c/46/d/319/2007 (30 May 2011); Kalonzo v Canada cat/c/48/d/343/2008 (18 May 2012); psb & tk v Canada cat/c/55/d/505/2012 (13 August 2015); jk v Canada cat/c/56/d/562/2015 (23 November 2015).
Brigitte Bureau, ‘UN Pushing Canada to Compensate Quebec Man Tortured in Mexico’ cbc (06 September 2018) <
Penny Smoke, ‘UN Committee Recommends Canada Criminalise Involuntary Sterilisation’ cbc News (7 December 2018) <
Jorge Barrera, ‘mp Asks rcmp for Criminal Probe of Coerced Sterilisation of Indigenous Women’ (21 February 2019) <
cat/c/cat/can/co/7 para 50.
crc/c/can/co/3–4 paras 10–11.
crc/c/can/3–4.
crc/c/can/3–4 paras 45–46.
An Act to Amend the Criminal Code (Exploitation and Trafficking in Persons) (sc 2015, ch 16).
crc/c/can/3–4 para 35; Government of Canada, ‘A Canada Fit for Children: Canada’s Follow-Up to the United Nations General Assembly Special Session on Children’ (April 2004) <
Public Safety Canada, ‘2013–2014 Evaluation of the National Strategy for the Protection of Children from Sexual Exploitation on the Internet’ <
Public Safety Canada, ‘National Action Plan to Combat Human Trafficking’ (2012) <
crc/c/can/3–4 para 36.
Preamble, Child, Youth and Family Services Act, 2017, s.o. 2017, c. 14, Sched. 1.
New Brunswick Child and Youth Advocate, ‘Child Rights Impact Assessment: A Primer for New Brunswick’ (nd) <
crc/c/can/co/3–4 paras 16–17.
crc/c/can/3–4 paras 25–26.
Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 scr 817.
ibid para 70, citing Ruth Sullivan, Driedger on the Construction of Statutes (3rd edn, LexisNexis 1994) 330.
ibid para 69–71.
ibid paras 69–75.
R v Sharpe [2001] 1 scr 45.
Winnipeg Child and Family Services v klw [2000] 2 scr 519.
Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) [2004] 1 scr 76.
ab v Bragg Communications Inc [2012] 2 scr 567.
unicef Canada, ‘The Convention on the Rights of the Child in Child-Friendly Language’ (nd) <
The following organisations responded to the invitation: the Canadian Coalition for the Rights of Children (ccrc); unicef Canada; Institute of Marriage and Family Canada; bc Aboriginal Child Care Society; Attawapiskat First Nations Education Authority; First Call: bc Child and Youth Advocacy Coalition; Society for Children and Youth of bc; Canadian Parks and Recreation Association; Adoption Council of Canada; bc Government and Service Employees’ Union; Child Care Advocacy Association of Canada; Elizabeth Fry Society of Canada; First Nations Summit; First Nations Education Steering Committee; Pivot Legal Society; National Alliance for Children and Youth; and Health Council of Canadians.
crc/c/can/co/3–4 paras 7 and 9.
crc/c/can/co/3–4 paras 7 and 9.
crc/c/can/co/3–4 paras 12–13.
crc/c/can/co/3–4 paras 22–23.
crc/c/can/co/3–4 paras 32–33.
crc/c/can/co/3–4 paras 63–64.
crc/c/can/co/3–4 paras 36–37.
crc/c/can/co/3–4 paras 7–8.
The Canadian Charter of Rights and Freedoms, s 15(1).
Canadian Human Rights Act rsc 1985, ch H-6.
For examples of provincial accessibility legislation, see Accessibility for Ontarians with Disabilities Act, 2005, s.o. 2005, c. 11; The Accessibility for Manitobans Act, ccsm c A1.7; An Act Respecting Accessibility in Nova Scotia, 2017, c. 2, s. 1.
Accessible Canada Act (sc 2019, ch 10).
ibid preamble and art 5.
Rick Hansen, ‘Passing Bill C-81 is Critical to Making Canada Accessible for all Canadians’ (22 April 2019) <
United Nations Treaty Collection, ‘Chapter iv Human Rights 15. Convention on the Rights of Persons with Disabilities’ (New York, 13 December 2006) <
Canadian Human Rights Act r.s.c., 1985, c. H-6, s 28.1.
Accessible Canada Act sc 2019, ch 10 s 37ff.
crpd/c/can/i para 19.
crpd/c/can/i para 20.
crpd/c/can/i para 21.
ibid.
ibid, para 17.
Divorce Act rsc 1985, ch 3 (2nd Supp.), s 2(1)(b).
Cole v Cole 2011 onsc 4090.
See crpd art 12 (Equal recognition before the law) in particular.
e/c.12/can/co/6 para 5.
For example, the submission from the Canadian Civil Society Parallel Report Group includes contributions from the arch Disability Law Centre; Alzheimer’s Society of Canada; Canada Without Poverty; Canadian Association for Community Living; Canadian Association of the Deaf; Canadian Council on Rehabilitation and Work; Canadian Centre on Disability Studies; Canadian National Institute for the Blind; Canadian Labour Congress; Council of Canadians with Disabilities; Disability Rights Promotion International; York University; DisAbled Women’s Network of Canada; Independent Living Canada; mad Canada; Ontario Network of Injured Workers; Income Security Advocacy Centre; Autistic Minority International-Canada; Participation & Knowledge Translation in Childhood Disability Lab; McGill University; and People First Canada (Canadian Civil Society Parallel Report Group, ‘Parallel Report for Canada’ (crpd Committee 16th Session – 20 March-7 April 7 2017) <
crpd/c/can/i para 5.
crpd/c/can/co/1 paras 7–10.
Standing Senate Committee on Human Rights (n 16). The Standing Committee continues to monitor implementation of and adherence to human rights treaties in Canada, and occasionally holds hearings regarding the work of the treaty bodies (Report of the Standing Senate Committee on Human Rights, ‘Thirteenth Report’ (25 June 2013) <
ibid.
cedaw/c/op.8/can/1 paras 15–17.
mmiwg Report (n 289); Tasker (n 289).
Tasker (n 289); cbc News, ‘231 “imperative” Changes: The mmiwg Inquiry’s Calls for Justice’ (2 June 2019) <
Yeo (n 133), citing cedaw/c/can/co/8–9 para 26.
Stefanovich (n 292).
Truth and Reconciliation Commission of Canada, Final Report (2015) <
ccpr/c/can/fco/25188/e (16 September 2016) s 4.3. On 10 May 2016, the Minister of Indigenous and Northern Affairs announced at the 15th Meeting of the United Nations Permanent Forum on Indigenous Issues that Canada is now a full supporter of the undrip, without qualifications, and that Canada will adopt and implement the undrip in accordance with the Canadian Constitution.
Government of Canada, ‘Overview of a Recognition and Implementation of Indigenous Rights Framework’ (10 September 2018) <
Miloon Kothari, United National Special Rapporteur on Adequate Housing, ‘Preliminary Observations at the End of his Mission to Canada 9–22 October 2007’ a/hrc/7/16/Add.4 (Preliminary Observations).
Canadian Mortgage and Housing Corporation, ‘National Housing Strategy: What Is the Strategy?’ <
Social Rights Advocacy Centre, ‘Historic Recognition of the Right to Housing in the National Housing Strategy Act’ Social Rights Advocacy Centre (nd) <
ccpr/c/can/co/6 (13 August 2015) s C: Business and human rights.
Order in Council pc 2019–299 (8 April 2019) <
Business and Human Rights Resource Centre (n 202).
Preamble, Child, Youth and Family Services Act, 2017, s.o. 2017, c. 14, Sched. 1.
Accessible Canada Act sc 2019, ch 10.
ibid preamble and art 5.
Divorce Act rsc 1985, ch 3 (2nd Supp.), s 2(1)(b).
Cole v Cole 2011 onsc 4090.
See crpd art 12 (Equal recognition before the law) in particular.
Council of Canadians with Disabilities, ‘Open Letter: Recognising Two Important Rights Milestones of 2018’ (21 December 2018) <
Council of Canadians with Disabilities, ‘Review of Canada’s Accession to the UN op-crpd’ (16 March 2017) <
Council of Canadians with Disabilities, ‘Canada and the crpd Archives’ <
Council of Canadians with Disabilities, ‘crpd – 10 Facts Canadians Should Know’ <
Jennifer Ashawasegai Windspeaker, ‘UN to Do the Job that Canada Will Not’ (2012) <
Link to previous Canadian Coalition for the Rights of Children (ccrc) reports: <
Janice Dickson, ‘Nova Scotia Advocates to Tell UN Committee of Women’s “Non-State Torture” in Canada’ The Star (19 November 2018) <
Persons Against Non-State Torture <