HUMAN RIGHTS COMMITTEE BEGINS CONSIDERATION OF CANADA'S FOURTH PERIODIC REPORT

HR/CT/529
26 March 1999

Human Rights Committee
Sixty-fifth Session
1737th Meeting (AM)




Secretary of State for Status of Women, Multiculturalism;
Highlights Government's Partnership with Civil Society
in Guaranteeing Rights


Despite a complex framework of legislation, Canada had found that it did not guarantee, de facto, the civil and political rights of its citizens, the Human Rights Committee was told this morning, as it began its consideration of Canada's fourth periodic report on its implementation of the International Covenant on Civil and Political Rights.

Hedy Fry, Secretary of State, Multiculturalism and the Status of Women, said that efforts to guarantee those rights must be combined with a supportive infrastructure of public policy and programmes that sought partnership with, and was informed by, civil society through non- governmental organizations, the private sector and institutions. Whether it was Canada's campaign against racial discrimination or the promotion of equal rights for gays and lesbians, partnership with relevant organizations was a key component of Canada's actions.

In assessing Canada's report, this morning, there was general agreement among Committee experts that it did not adequately address the issue of selfdetermination. Elizabeth Evatt, expert from Australia, said the Canadian report did not deal with article 1 of the Covenant, which concerns selfdetermination, in great detail. How did Canada distinguish between the selfdetermination referred to article 1 of the Covenant and self- government, which was referred to quite frequently in the report? she asked.

Nisuke Ando, expert from Japan, said the term self-determination, in the context of the current report, had a particular Canadian nuance. He questioned what Canada meant by that phrase in relation to article 1 of the Covenant.

Abdelfattah Amor, expert from Tunisia, said the concept of self-determination should have been more developed in the Canadian report, as it was an issue that had been discussed a great deal internationally. It was particularly relevant in a Canadian context, because it had a special meaning. While it was a dynamic context that was functional, its content and scope could vary, with regard to data and balance of power.

Claire Beckton, of the Canadian delegation, in a response to questions from the Committee, said international law was not self-executing in Canada and could not form the basis of action in court. However, human rights treaties were playing an increasing role in Canadian jurisprudence.

The experts from Germany, France, United Kingdom, Finland, Poland, Colombia, Lebanon, Argentina, Mauritius, Italy and Israel also commented and posed questions to the Canadian delegation.

The following members of Canada's delegation responded to questions raised by the Committee: Ross Hynes; Christian Deslauriers; Daniel Therien; George Tsai; and Rob Watts.

The Committee will meet again at 3 p.m. to continue its consideration of the Canadian report.

Committee Work Programme

The Human Rights Committee met this morning to begin consideration of the fourth periodic report of Canada (document CCPR/C/103/Add.5) which covers the period 1990 to 1994. Under article 40 of the International Covenant on Civil and Political Rights, every State party has undertaken to submit reports to the Committee upon implementation of the Covenant. According to the article, the report should include information on the measures the States parties have adopted and the progress made in accordance with the relevant rights of the Covenant.

The report analyzes Canada's efforts to implement the Covenant, with, on an article-by-article basis: general comments; legislative developments; the response of Canada to specific concerns expressed by the Human Rights Committee to earlier reports; and a description of the way the Covenant has been used in interpreting the Canadian Charter of Rights and Freedoms. A section describing measures adopted by the governments of Canada's ten provinces and two territories is also included.

The report states that renewed efforts for constitutional reform culminated with a new constitutional accord in 1992. This new agreement - the Charlottetown Accord -- received the support of the Federal Government, the governments of all provinces and territories, and the leaders of the country's four national aboriginal associations. Of particular
significance in the context of human rights was the proposal for the recognition of Quebec as a distinct society within Canada, and of the inherent right to selfgovernment of Canada's aboriginal peoples. In a national referendum held in October 1992, however, most Canadians -- aboriginal and non-aboriginal -- voted against the proposed constitutional
reforms.

The rights of the aboriginal peoples in Canada remain of particular importance to the Government, the report goes on to say. The Constitution Act of 1982 recognizes and affirms the "existing aboriginal and treaty rights of the aboriginal peoples of Canada." After the 1993 federal election, the Canadian Government expressed its intention to act "on the premise that the inherent right of self-government of the aboriginal peoples of Canada is an existing aboriginal and treaty right." Ongoing discussions continue with the aboriginal people on the implementation of the inherent right of selfgovernment.

In 1991, the report says, the Royal Commission on Aboriginal Peoples was established to "investigate the evolution of the relationship among Aboriginal peoples, the Canadian Government and Canadian society as a whole". The Commission was charged with proposing specific solutions for developing a new relationship between Canada's aboriginal and non- aboriginal peoples based on "trust, understanding and mutual respect". Its final report was due by 1996.

The issue of self-government had led to the coming into force, in 1993, of the Nunavit Act. This provided for the establishment, by 1999, of the territory of Nunavit in the eastern Arctic where the Inuit make up the large majority of the population. It also provided for a transition process, although several of the provincial governments -- for example, Newfoundland - had not yet implemented legislation on the issue.

Other initiatives included: consultations with aboriginal peoples before Canada ratified the Convention on the Rights of the Child; giving aboriginal communities responsibility for correctional services for aboriginal criminal offenders through the implementation of the 1992 Correctional and Conditional Release Act; and comprehensive land claim agreements, with seven major land claims settlements reached across northern Canada since 1990. Also, discussion and settlement on land claim agreements had also been ensured by the establishment of provincial and governmental commissions to investigate these claims.

During 1992 to 1994, the report continues,the Official Languages Regulations were enacted to define, in a very precise manner, the linguistic duties of federal institutions in their communications with members of the public and, in 1994, the Canadian Government announced that key federal institutions would be required to develop business plans in
consultation with minority language communities which would also cater to their needs.

The report also notes that the province of Manitoba had undertaken extensive legislation, especially regarding Articles 24 to 27 of the Covenant. The justice system had been revised to accommodate the cultural and social values of Aboriginal peoples, two Aboriginal schools had been established -one elementary and one high school -- and Treaty Land Entitlement negotiations continue between the federal government, the provincial government and the Treaty Land Entitlement Committee, which represents 19 Aboriginal bands in Manitoba.

The report states that the Canadian Charter of Rights and Freedoms relied on the limitations as contained in the Covenant for upholding those issues relating to public health, public safety, public order, and the rights and freedoms of others. However, the Charter, a part of Canada's Constitution and applies to all governments in Canada, is not a direct incorporation of the Covenant into domestic law. There are differences in both structure and substance. However, the rights recognized in the Covenant are protected in Canada by a combination of constitutional, legislative and other measures. Also, the following three provisions in the Constitution provide remedies for violations of human rights: recourse to a court if an individual feels his Charter rights have been violated; the exclusion of evidence if there is a violation of Charter rights; and the ruling that any law inconsistent with the Constitution is of no force.

The report notes that provision had been made for the enjoyment of equal rights for both men and women in the Canadian Charter of Rights and Freedoms. Legislation had been established to advance the position of women in Canadian society. Also, in accordance with the requirements of Article 26 of the Covenant, the Government had placed emphasis on the elimination of violence and sexual harassment against women. As a tangible measure, a public awareness and community action campaign on violence against women was launched in 1994.

In addressing article 13, Canada's Charter of Rights and Freedoms states that decisions made by immigration officials should be "consistent with the principles of fundamental justice where they affect an individual's life, liberty or security of the person". So, as a guarantee of this right, in 1993 a new law was established that provided for amendments to be made to the Immigration Act. That allowed for the addition of two other classes of persons to seek landed immigrant status. Also, the government has created a class of immigrant status for those who might face extreme danger on returning to his or her country of origin. Also, a 1995 Immigration Plan advocated the reunification of immediate family members.

On its compliance with aspects of the rights of the protection of the family and children, the report states that a number of initiatives had been undertaken. Tax initiatives, which included the new Child Tax Benefit system, had been introduced and contained measures for especially poverty- stricken families. Steps had also been taken to enable those persons with family responsibilities to work. The Women's Bureau of Human Resources Development Canada had distributed information on the Canada Labour Code and other issues pertaining to their rights.

The report goes on to say that child prostitution, described as a recurring problem, is being addressed by the Police and Security Branch of the Department of the Solicitor General. Another group of persons, the FederalProvincial-Territorial Working Group, was established in 1992 to examine the adequacy of legislation concerning prostitution. The health of the child also received special attention through the introduction, in 1994, of the Canada Prenatal Nutritional Programme, which aimed to tackle infant mortality rates and provide parent support, among other matters.

With regards to the rights of the child in the juvenile justice system, the Government of Canada had modified legislation to allow for: transfer to an adult prison if a child was recognized as not being able to rehabilitate in the youth facility; and retention in custody of a juvenile if there were reasonable grounds for the belief that he or she could cause serious harm to another person upon release. A further modification provided for a person under eighteen years to be eligible for parole after he/she has served a period of five to ten years for a murder conviction.

Another priority of the Canadian Government, according to the report, was ensuring equal treatment of all persons as outlined in Article 26 of the Covenant. Several categories of persons were provided for under the country's legislation, among them disabled persons, women, aboriginal peoples, immigrants and refugee claimants, and employees. Some measures implemented to deal with issues pertaining to equal rights were: in 1991, a Special Committee of the House of Commons began examination of the provisions and operations of the Employment Equity Act, which culminated in the amendment of the Act in 1994; and the establishment of the National Strategy for the Integration of Persons with Disabilities, which culminated with the enactment of an Act, in 1992, to improve the lives of disabled person in the areas of access to transportation, acquisition of citizenship, the ability to testify in criminal courts, and access to the electoral process, among others.

In Canada the rights of thought, conscience and religion as defined in Article 18 of the Covenant were guaranteed, the report states. The problems the country faced involved ritual abuse during religious ceremonies and rituals. A Final Report of the Canadian Panel on Violence against Women described the situation as one which urgently required
recognition. The report defined this ritual abuse, especially of women, as "severe physical, sexual, psychological and spiritual abuse of a systematic nature, in combination with symbols, ceremonies, or group activities with a religious, magical or supernatural connotation".

Statement

HEDY FRY, Secretary of State, Multiculturalism and Status of Women, Canada, said her country was a diverse society. While that was a source of strength, it was also a challenge. Every jurisdiction in the State had enforceable human rights charters or codes designed to combat discrimination in such areas as unemployment, accommodation and the provision of goods and services. Those laws applied to both the private and public sectors. They provided effective enforceable remedies for the victims of discrimination. Nevertheless, Canada faced challenges in ensuring that its people could enjoy the same rights and freedoms. That was achieved through federal/provincial agreements that sought to find a common social and economic framework to meet the needs of a rapidly
evolving society.

She said despite a complex framework of legislation, Canada had found that it did not guarantee, de facto, the civil and political rights of its citizens. It must be combined with a supportive infrastructure of public policy and programmes that sought partnership with, and was informed by, civil society, through non-governmental organizations, the private sector
and institutions. Whether it was Canada's campaign against racial discrimination or the promotion of equal rights for gays and lesbians, partnership with relevant organizations was a key component of Canada's actions. Canada had an official multiculturalism policy since 1971, which was enacted to give effect to the principles of respect and mutual
understanding between the country's diverse cultures.

She said that because of its diverse society, Canada was concerned about a perceived increase in hate crimes and had taken measures to accelerate the fight against such crimes. In 1996, the Canadian Race Relations Foundation came into effect. Action had and was being taken to improve police training in that area, to expand broad-based campaigns to support community action and to strengthen legislation in consultation with the
provinces and territories. Efforts also included an amendment to the country's Criminal Code to allow for increased sentences where hate was an aggravating factor. The rapid spread of hate propaganda on the Internet called for creative domestic and international solutions. That was a challenge.

She said Canada was a country still in the process of achieving the fullest civil and political rights for each of its citizens. It strived to achieve goals outlined in the International Covenant on Civil and Political Rights through: a federation of different jurisdictions; a diverse and inclusive society of cultural, religious, ethnic and racial differences; shared common values of integration rather than assimilation; and by balancing the rights of the individual and the group with the greater good of society.

"We recognize that those values bring with them specific challenges", she said "the challenges of finding solutions to the different barriers that individuals and groups face in attaining full civic participation". That required honing the tools and skills of accommodation and respecting the differences and peaceful solutions to the society's conflicting needs.

Response to Questions

Responding to specific questions that had been posed by the Committee, Ms. FRY informed the Committee of a new approach being taken toward the inherent right for aboriginal self-government. She said that under Nunavit, all residents are able to vote. The vast central and Arctic regions would become the new aboriginal territory. Changes over the next 20 years were announced late last year. A progress report would be
presented to the Human Rights Committee.

ROB WATTS, (Canada), stated that the inherent right policy was recognized by the Constitution of Canada. It was based on the premise of self- government. Under that policy, aboriginals would continue to be citizens of Canada. Also, the Canadian Charter of Rights and Freedoms would be applied to the inherent right policy. Federal, provincial and aboriginal laws must be in harmony.

Self-government and aboriginal jurisdiction were integral to the preservation of aboriginal culture. The policy would apply to aspects of language, membership, health and social services. However, law-making would remain with the federal and provincial governments in such areas as divorce, administration of justice, environmental protection and fisheries management. There were now over 80 self-government negotiations across
Canada.

The Indian Specific Claims Commission had two major functions, enquiries and mediation, he said. That was the only branch of self-government that would be under constant scrutiny by enquiry. An impartial third party would assist the parties involved. Other programmes under the inherent right policy included the accelerated implementation of new housing, water, health and public safety projects. Respect for the language was also important, for which the government was designing appropriate programmes. Canada had also committed $3.5 million towards the implementation of healing strategies for those suffering from sexual and other abuse.

CLAIRE BECKTON (Canada), responding to a question on aboriginal rights, said that in recent years the country's Supreme Court had recognized and affirmed aboriginal rights. To prove an aboriginal right, a group must establish that the activity claimed as a right was a custom or tradition endemic to that society and culture before the advent of the European
power. Responding to a question on Manitoba, she said that the territory had reviewed its justice system. The possibility of creating a native justice system, a charter and a separate criminal code seemed to be outside of its authority.

GEORGE TSAI (Canada), answering a question on asylum, said anyone seeking asylum in his country had the right, at their own expense, to use their own counsel. Asylum seekers had access to legal advice financed by the relevant authorities. The provinces received transfer payments from the Federal Government for social and health programmes. Those payments covered legal assistance in the case of asylum and immigration.

DANIEL THERIEN (Canada), addressing judicial review, said that process was executed by the Federal Court based on criteria that was easy to satisfy; in other words, an arguable case. To ensure an effective judicial review system, the Federal Court also heard requests on weekends and evenings.

Ms. BECKTON, responding to a question on Canada's constitutional legal framework, said that the country's extradition law was a two-phase process. A Canadian judge would consider the sufficiency of evidence and whether the extraditable crime was a crime in Canada. It was then up to the Minister of Justice to decide whether a person would be extradited. If the person being extradited faced torture or inhumane treatment by the requesting State, that would be taken into consideration on the Canadian side.

Ms. FRY said Canada's report on human rights instruments was prepared in close collaboration with territorial or provincial authorities. The provinces were responsible for submissions related to communications regarding their jurisdictions.

The amendment to the Canadian human rights process had increased the independence of the country's Human Rights Commission by granting it the power to table its reports with Parliament. The Commission was designed to administer human rights law. Canada's Human Rights Tribunal also submitted its annual report to Parliament independent of the Commission.

Ms. BECKTON, replying to a question raised on the constitutional amendments of 1997, said that changes made were in full compliance with the Covenant. She added that international law was not self-executing in Canada and could not form the basis of action in court. However, human rights treaties were playing an increasing role in Canadian jurisprudence.

Ms. FRY said that gender equality was provided for under Canada's Charter. Equality, as interpreted by the Canadian government, meant equality of results. To achieve that, measures had to be taken to heal historical disadvantages. That applied to discrimination by race, disabled persons and other segments of the population, as well. A broad-based
approach was taken. Implementation of programmes and specific commitments for implementing legislation in that area were linked to the 1995 Fourth World Conference on Women held in Beijing. To ensure the success of that initiative, data and analytical methods were being added to monitoring mechanisms.

The Government was also making efforts to ensure that women were participating more in the country's political process, she said. Women themselves had identified funding and the difficulty of breaking into maledominated networks as major obstacles to their increased participation. It must be noted, however, that in 1993 the Canadian Government managed to double the number of women in the House of Commons, to 60 out of 301 seats. There were also 31 women appointed to the Senate.

In response to the question the Human Rights Committee asked about complaints on the part of 82,000 federal employees and their unions regarding wage discrimination, she said that pay equity was indeed a priority of the Government. Since 1998, the Government had already paid over $1 billion to remedy the wage gap. She also informed the Committee that the Minister of Justice would soon be announcing a review of the country's Human Rights Act, including the Indian Act Exemption. She noted that it was very important to determine if human rights applied to the concepts in self-government.

Ms. BECKTON said relevant sections of the Charter dealt with the right to freedom of association. Canadian courts had not been reluctant to ensure that the political area was open to all points of view. Open participation must involve the notion that all persons were equal.

CHRISTIAN DESLAURIER (Canada) said that in Quebec all citizens had the same rights recognized by the Charter. It protected freedom of expression and prohibited discrimination against minority language. The law and regulations were adopted in French and English, both with the same status. All people could speak in the courts in those languages. There was complete English education available for all levels in educational
institutions. Englishspeaking people had access to civil and other services. English-speakers had their own cultural network; for example, on television, on radio, in churches and so on.

ROSS HYNES (Canada) said that in Ontario the 1995 final report on systemic racism made several recommendations concerning the special investigations unit responsible for investigating police actions. On 1 January of the current year, a special investigation unit was established that said the failure of a police officer to comply with the rules would be considered misconduct.

Response by Experts

ELIZABETH EVATT, expert from Australia, said the report did not deal with article 1 of the Covenant in great detail. How did Canada distinguish between the self-determination referred to in article 1 of the Covenant and the self-government referred to quite frequently in the report? she asked. It was still unclear whether a violation of Covenant rights was a matter for consideration in the instance of a failed application for refugee status. Similar questions arose with regard to the deportation of immigrants. Could it be claimed that removal from the country would put a person at risk of any violation of rights set forth in the Covenant?

She wanted clarification on the role played by the Canadian Commission on Human Rights in disseminating information on human rights instruments. Regarding the issue of women's rights, to what extent did the discrepancies in economic resources between men and women affect women's rights in Canada? she asked. Were funds made available to women to challenge discriminatory aspects of Canadian law? In addition, what activities were being taken to guarantee equality for aboriginal women?

MARTIN SCHEININ, expert from Finland, said there was a sound basis for making Canada a model for all societies. However, the issue of selfdetermination and self-government was a relevant one. The report addressed self-government, but not self-determination. He asked if it was part of Canada's policy for aboriginals to extinguish their rights to lands and resources in order to enter into new agreements. Could the delegation also assure the Committee of possible interim measures for protection in certain deportation or extradition cases?

ROMAN WIERUSZEWSKI, expert from Poland, reiterated the view that the reference to article 1 of the Covenant was missing from the report. He asked what the Government's position was in that respect and the main problems faced in the implementation of that article. Information assessing the effectiveness of Canada's Human Rights Commission was needed.

How did that body provide meaningful remedies to human rights problems?

ECKART KLEIN, expert from Germany, said that one could get the impression from the report that the story of the situation of the aboriginal peoples is a success. However, the report itself had referred to the situation as remaining a most pressing human rights issue. It was satisfactory only on an abstract level. Nothing much had been done in terms of implementation.

On another matter, he enquired on the nature of the remedies available, in accordance with article 2 of the Covenant, for a discriminatory act against a victim in the private sector. Should the Canadian Human Rights Commission deny it was a violation, was there insufficient recourse for an appeal? What was the advantage of the Human Rights Commission and how did Canada see compliance with the question on rights to judicial representation? He also requested a definition of Canada's concept of torture. Was it true that the Government was expelling or extraditing persons despite the risk of torture to the individual, if a national security interest was involved? Did Canada, therefore, have the right to balance the danger of torture of the individual against State interest?

Lord COLVILLE, expert from the United Kingdom, enquired about the right to self-determination and self-government, and requested an explanation on how the Government proposed to deal with problems that would arise out of the old treaties that had been made with the aboriginal peoples.

CHRISTINE CHANET, expert from France, expressed the opinion that the report dealt with the Charter, rather than with the Covenant itself. It did not comply with the objectives of the Human Rights Committee. She said there was an obvious lack of remedies in accordance with article 2. The province of Quebec was closer to the requirements in accordance with the article. She also referred to the refugees and foreigners presently in detention in Canada, adding that the process of detention could sometimes be indefinite, lasting up to two or three years. What body was set up to decide the rights of those persons?

PILAR GAITAN DE POMBO, expert from Colombia, wanted more precise information on the new relationship between the Government of Canada and the indigenous people. What progress had been made vis-a-vis territorial claims?

NISUKE ANDO, expert from Japan, said the term self-determination, in the context of the current report, had a particular Canadian nuance. What was it that Canada meant by that phrase in relation to article 1? Clarification was also needed on the traditional customs of aboriginal groups vis-a-vis the Covenant. When Covenant rights were contradicted by aboriginal customs, what was the Government's position? Also, the problem
of the ritual abuse of women and children needed more elaboration.

ABDELFATTAH AMOR, expert from Tunisia, said he would like to have heard something about the concept of self-determination. That should have been more developed in the Canadian report, as it was an issue that had been discussed a great deal internationally. It was particularly relevant in a Canadian context, because it had a special meaning. While it was a dynamic context that was functional, its content and scope could vary, with regard
to data and balance of power. He also wanted to know whether there were precise and constant criteria on expulsion decisions.

Concerning freedom of religion, he cited the Order of the Sun Temple, which was handled in a certain way in Canada. He enquired about the judicial follow-up to that and commented on the Canadian media's coverage of the issue. While freedom of the press had to be protected, caution had to be exercised with regard to a free press that was used without subtlety. When there was a lack of subtlety, was there not a risk of persecution of religious minority groups that were not part of religious orthodoxy? Regarding successional rights, he asked whether the personal status of women depended on or adhered to religion or Canadian law.

ABDALLAH ZAKHIA, expert from Lebanon, enquired whether Canada had a policy of parity, as practised in Scandinavian countries, and suggested that it could be a good method for creating equality. He noted that there had been a retrogression in Ontario on human rights issues in the closure of certain public services. He wondered why the authorities in Ontario had not conducted an inquiry into the death of Dudley George, an aboriginal activist.

HIPOLITO SOLARI YRIGOYEN, expert from Argentina, also made remarks on the death of Dudley George, in 1995, and requested some clarification on allegations of intimidation by both the police and the Prime Minister of Ontario. He also asked about the results of the investigation of the murder of a Somali youth in the United Nations Mission compound a few years ago. In a reference to the referendum on the independence of Quebec, he requested that the delegation give an explanation on the position of the Federal Government. Was it neutral or in favour of the referendum? he asked.

RAJSOOMER LALLAH, expert from Mauritius, wondered whether Canada would change its policies with regard to extradition if it could not be given assurances that the persons to be extradited would not face torture.

FAUSTO POCAR, expert from Italy, also noted that the report did not address the Covenant. He stated that, while it gave a good explanation of what the Charter was doing, that was not always in compliance with the requirements of the Covenant. He requested a response from the delegation on the Government's concept of torture and its compatibility with international standards and requirements.

DAVID KRETZMER, expert from Israel, referred to the fact that special privileges were granted to the Catholic and Protestant churches in Canada. This, he said, was not in compliance with the requirements of the Covenant, as stated in the rights under article 27.