Raising Awareness. Influencing Positive Change.

Canada is the most open, inclusive and culturally diverse society in the world, yet people continue to face discrimination every day. Raising Canadians’ awareness of human rights issues and influencing positive and lasting societal change requires consistent and concerted efforts from a vast network—non-governmental organizations, advocacy groups, parliamentarians, labour unions, employers, legal bodies, academics, members of the media—in addition to human rights commissions.

The Commission works with several members of this extensive network to find ways to address existing challenges and identify and respond to emerging issues. Through proactive research initiatives, policy development and targeted awareness initiatives, the Commission advances the common objective of the entire human rights network: to improve the lives of people in Canada by fostering a society in which everyone experiences the equality and dignity guaranteed by our laws.

Human Rights Challenges in Canada

Canada continues to face many human rights challenges. The Commission has chosen to highlight three issues: the rights of Aboriginal peoples, the rights of persons with disabilities and race relations. The rights of Aboriginal peoples are of special concern to the Commission given the recent repeal of section 67 of the Canadian Human Rights Act. Disability and race are highlighted because they are, respectively, the first and second most frequent grounds for complaints filed with the Commission.

Aboriginal peoples in Canada

Aboriginal peoples in Canada experience some of the most pressing human rights challenges facing our country. Disadvantaged in education, health status, and overall quality of life, Aboriginal peoples experience higher rates of unemployment and have income levels well below the Canadian average. This group also represents one of the youngest and fastest growing populations in the country.

The challenges are enormous and the scale of issues to confront is vast and often technically complex, yet progress has been made. Through the efforts of Aboriginal communities and the federal and provincial governments, Canada has changed laws, established important legal precedents, resolved land claims, and acknowledged injustices of the past.

The Canadian Human Rights Act was amended in 2008 to extend full human rights protection to persons living under the Indian Act. Full equality before the law is a critical step in advancing Aboriginal rights; however, it is only a first step.

The Indian Act

The Indian Act was created in 1876 to outline the government’s exclusive jurisdiction over “Indians and lands reserved for Indians,” and to establish who is entitled to Indian status. For 133 years, the Act has remained relatively unchanged. The Indian Act is outdated and continues to be criticized for being discriminatory and paternalistic. A more modern approach to governance that recognizes First Nations’ inherent right to self-government is long overdue.

Prior to 1985, an Indian woman who married a non-Indian man lost her status. On the other hand, an Indian man who married a non-Indian woman maintained his status and his wife and children also gained status. Parliament introduced Bill C-31 in 1985 in order to, among other things, remove this discriminatory provision from the Indian Act. In April 2009, the British Columbia Court of Appeal, in McIvor v. Canada, found that a residual form of discrimination remained with respect to the ability to pass on status to the next generation. The Court declared certain status provisions unconstitutional as they violate the equality provision of the Canadian Charter of Rights and Freedoms.

Following the McIvor decision, the Government of Canada expressed its intention to introduce legislative amendments in 2010. While this is welcome, amendments based solely on the McIvor decision may not be broad enough to address all potential forms of discrimination relating to status and band membership.

With the repeal of section 67, the Commission now has jurisdiction to accept complaints related to the Indian Act. The Commission has begun to receive complaints and is anticipating that they will cover a broad range of issues such as status, band membership, education, and housing.

Creating a more modern approach to governance that recognizes First Nations’ inherent right to self-government will take time. In the meantime, the Government of Canada should, in dialogue with First Nations, the Commission and other relevant bodies, review the Indian Act’s provisions and relevant policies and programs. Such a review would identify the necessary steps to ensure compliance with the Canadian Human Rights Act and the equality provision in the Charter. The alternative—addressing these issues on a case-by-case basis—has been and will continue to be costly, confrontational and time consuming.

The United Nations Declaration on the Rights of Indigenous Peoples

In 2007, after decades of negotiations, the United Nations General Assembly adopted the Declaration on the Rights of Indigenous Peoples by a vote of 143 to 4. Canada, with Australia, New Zealand and the United States, was one of four nations opposed (in April 2009, Australia reviewed its position and affirmed its support).

This was an unfortunate outcome given Canada’s commendable record in acknowledging Aboriginal rights and its leadership throughout the 22-year drafting process. The Government of Canada has outlined its reasons for not supporting the Declaration. The Government expressed concern that the Declaration might not fully accord with the norms and precedents that have been established through judicial decisions and negotiations on land claims and self-government. Yet, the Declaration does provide deference to existing good faith agreements between states and their indigenous peoples.

On April 8, 2008, Canada’s House of Commons passed a resolution to endorse the Declaration as adopted by the United Nations and called on Parliament and the Government of Canada to “fully implement the standards contained therein.” This resolution is welcome; however, a formal endorsement of the Declaration is at the discretion of the Government.

The Government’s refraining from expressing its support is perceived by many key stakeholders as calling into question Canada’s commitment to advancing the rights of Aboriginal peoples. The Commission urges the Government of Canada to join the growing international consensus in support of the Declaration.

Violence against Aboriginal women

Young Aboriginal women are five times more likely than other Canadian women to die as a result of violence. The Native Women’s Association of Canada has documented the stories of 520 Aboriginal women who are missing or have been murdered in the last 30 years. Although each woman’s story is unique, many struggled with poverty, addiction and domestic abuse, or were victims of the residential school system. In several cases, families who went to authorities to report their loved ones missing were met with indifference.

Some progress is being made to address this pressing issue. Programs to prevent violence have been initiated. Law enforcement agencies, now aware of the issue, are better trained to take it more seriously. The Native Women’s Association of Canada is working to make the public aware of the issue and to urge governments at all levels to take action.

In responding to Canada’s 2009 Universal Periodic Review, many of the United Nations Human Rights Council’s recommendations called for a concerted effort to better protect Aboriginal women against violence, with particular emphasis on addressing their low socio-economic status and the impacts of discrimination.

A comprehensive response to this crisis requires action by all levels of government. The Commission calls on the federal government to strengthen its leadership role by ensuring national coordination and enhanced programming.

Overrepresentation of Aboriginal people in prisons

Chief Justice Beverley McLachlin called the overrepresentation of Aboriginal peoples in federal prisons a “deeply rooted, endemic social problem.” There are many factors that contribute to the perpetuation of a criminal cycle—poverty, substance abuse, health issues (including mental illness), cultural insensitivity and urbanization of the Aboriginal population. These factors were highlighted in the 1999 seminal Supreme Court decision R. v. Gladue.

After reviewing numerous reports on Aboriginal people and systemic discrimination in the criminal justice system, the Court concluded that the findings “cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it... The drastic overrepresentation of Aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem.” Taking into account the principles of restorative justice, the Court also found that all reasonable and available sanctions other than imprisonment must be considered for all offenders, with particular attention given to the circumstances of Aboriginal offenders.

Ten years have passed since the Gladue decision and the situation continues to worsen. Aboriginal incarceration rates are now almost nine times the national average. The number of federally incarcerated Aboriginal women increased by 131% from 1998 to 2008. Canada’s Correctional Investigator has documented that systemic barriers continue to exist in federal corrections. These include Aboriginal offenders being released later in their sentence, classified as higher risk and being more likely to have their conditional release revoked than non-Aboriginal offenders.

Many observers have argued that proposed federal sentencing reforms, such as mandatory minimum sentences, will exacerbate an already troubling human rights situation.

People with disabilities

In Canada, as elsewhere, the history of how society has treated people with disabilities is discouraging. Not so long ago, many people with disabilities were institutionalized, few were employed, and their active participation in society was greatly restricted. Much has changed. Canada was one of the first countries in the world to provide constitutional protection against disability discrimination. Attitudes and practices are changing although there is still considerable work to be done before persons with disabilities achieve full equality.

The Convention on the Rights of Persons with Disabilities

The United Nations Convention on the Rights of Persons with Disabilities marked a turning point in the struggle for the full recognition of the rights of the 650 million people with disabilities.

The Convention recognizes that persons with disabilities are sailing against a powerful headwind. Ensuring that they are entitled to equality, dignity, autonomy, independence and respect goes beyond treating everyone the same. It requires the removal of barriers that prevent persons with disabilities from full participation in society.

Canada looks forward to ratifying the Convention in 2010. Canada is in a good position to implement the Convention and assist other countries, particularly in the developing world, in making it a reality in the day-to-day lives of ordinary citizens.

Noble intentions must be followed by the requisite actions. In this respect, the implementation and monitoring provisions are critical as they provide a mechanism for calling countries to account for implementing the Convention. Article 33 of the Convention requires each country to:

... maintain, strengthen, designate or establish ... one or more independent mechanisms ... to promote, protect and monitor implementation ... (and) shall take into account the principles relating to the status and functioning of national institutions for protection and promotion of human rights.

The Government of Canada has not yet made a decision on how this provision will be implemented. Given its mandate, independence, international accreditation, and years of experience, the Commission would welcome the government’s designation to serve in this role.

Removing barriers

The 2006 Census data shows that employment rates and income levels for persons with disabilities are far below those for other Canadians and a disproportionate number live in poverty. Despite employment equity programs, many qualified people with disabilities have trouble finding work.

Even though ramps and accessible washrooms are now commonplace, many people with disabilities still encounter barriers daily. For example, accessible transportation is still an issue. The 2007 Supreme Court decision in the VIA case, which dealt with the purchase of railroad cars that were not accessible to wheelchairs, clearly established the obligation of transportation providers to ensure fully accessible services. Barriers also continue to restrict peoples’ ability to access new technologies, including telecommunications and new banking and purchasing methods; to join the workforce; and to communicate with government and service providers.

One of the most pressing issues in the area of disability is the failure of Canada to develop a comprehensive system of disability supports: the web of programs, services, tax and income programs, that are the necessary underpinnings for supporting people with disabilities to live in the community, get a good education, and enter the workplace.

Policy experts have observed that the disability support system is often disjointed and uncoordinated across the country. An example of this is the lack of portability from one province to another. Through years of effort and patience, persons may put together the various supports they need, such as attendant care and mobility aids. Yet they must start all over again if family or work requires them to move to another province.

Another example is the variation in the criteria for financial assistance from province to province. One possible mechanism to address this problem may be a federal Guaranteed Income Supplement similar to the one that is currently provided for seniors.

Solving these problems and others will require long-term and concerted effort by all levels of government. The federal government could move this process along, using existing Federal/Provincial/Territorial mechanisms, to provide much needed leadership and a national perspective.

Race relations

Canada is one of the most tolerant and diverse countries in the world. Canadians have recognized the need to accommodate cultural, linguistic and religious differences.

Canada’s population is diversifying rapidly. The proportion of Canadians belonging to a visible minority group has tripled in the last 25 years. In 2006, visible minorities comprised 16.2% of the population of Canada, a proportion expected to reach 20% by 2017. This diversification contributes to a richer Canada with a stronger social, economic and cultural future.

Economic integration

Economic integration is a key pathway to social and cultural integration. Recent data and research demonstrates that income levels are significantly lower and unemployment rates are higher for immigrants than for other Canadians. People who have been in Canada 10 to 15 years are almost twice as likely as other Canadians to live below Statistics Canada’s low-income cut-off.

The reasons for this are complex and cannot be blamed solely on racial discrimination. Nevertheless, racial discrimination still occurs in Canada and must be addressed. An issue of particular concern is the disconnect between education and employment. Minority communities may achieve consistently higher than average educational results, but they do not translate into access to professional and skilled employment with wages that match.

Problems with the recognition of foreign degrees contribute to this disconnect. Statistics show that 54% of recent immigrants have a university degree (compared to 22% of native-born Canadians). However, many have difficulty finding employment in their former professions, despite critical shortages, because their qualifications are not recognized in Canada.

The federal and provincial governments, in collaboration with regulatory bodies, have invested considerable effort to address this complex issue. These efforts are commendable and the Commission urges the federal and provincial governments to give continued attention to this ongoing challenge.

National security and human rights

The 9/11 attacks gave rise to a new security environment dominated by the threat of terrorism. A recent security breach, involving an airline passenger’s alleged attempt to detonate explosives onboard, reminds us that issues of domestic and international security are a continuous key concern. These new security realities engage Canada, like other nations, in considering the relationship between national security and individual human rights. The introduction of security measures that would not have been contemplated ten years ago does have an impact on the individual rights enshrined in the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act.

Issues of national security and human rights often place the two in conflict and imply that greater security leads to an erosion of rights. In a democratic, pluralist society, both must coexist. The need to ensure national security while protecting human rights is and will continue to be an important challenge for governments and their security agencies. The challenge becomes especially daunting since there are few precedents or established patterns of human rights abuses or discriminatory practices to inform the security policies and practices of the future.

As new security measures are developed, it will be important to consider the following questions in order to comply with human rights legislation: Is the measure necessary? Does evidence show that it has the desired effect? Is there an adverse impact on human rights and, if so, is this justified? Are there less discriminatory ways of achieving the same objective?

Behavioural profiling, which aims to screen individuals on the basis of observed behavioural characteristics, is one measure that may raise human rights questions in the future. If properly done, profiles can be useful in reducing the number of individuals identified for further enquiry. Criteria used should be based on intelligence. If any criterion is linked to a prohibited ground of discrimination, its use should be justified and documented.

There is no evidence to support the use of racial or ethnic profiling and most law enforcement and security agencies have established policies against this type of profiling. However, few are collecting data on the discretionary decisions made by their front line personnel. Only through documenting and monitoring these decisions can information be gathered as to whether or not inappropriate profiling is occurring. This information provides the base from which an organization can learn and adapt in order to create a culture where protecting human rights is an integral part of its daily business.

Given its mandate, the Commission is an important partner in human rights protection. Since 2006, the Commission has sponsored four research reports exploring various aspects of national security and human rights. It works with security agencies within the government to develop evidence-based approaches that respect human rights. It will continue to develop the knowledge base in this area and provide advice and expertise to better meet the challenges ahead.

The National Aboriginal Initiative

The repeal of section 67 of the Canadian Human Rights Act (CHRA) has created the opportunity to advance human rights for all Aboriginal people across Canada.

The Commission is actively engaged in a comprehensive strategy to work with Aboriginal communities to prepare for 2011, when the provisions of the CHRA become fully applicable to First Nations governments.

The Commission’s strategy has two distinct objectives. The first is to provide knowledge and support so that communities can better recognize, respond to, and manage human rights issues. The second is to ensure that the Commission’s complaint process is accessible, effective and culturally sensitive to Aboriginal peoples.

The Commission has undertaken this work by seeking input from key groups and by holding more than 25 information sessions across the country—including a technical briefing at the Assembly of First Nations’ Annual General Assembly to raise awareness of the CHRA.

The three national Aboriginal organizations whose members are most affected by the repeal—the Assembly of First Nations, the Native Women’s Association of Canada, and the Congress of Aboriginal Peoples—are also working closely with the Commission and providing important advice and perspectives.

The Commission also surveyed a crosssection of Aboriginal groups (including women’s groups; and national, regional and local organizations) to learn about their needs for awareness and training on the Canadian Human Rights Act and the role of the Commission. The survey indicated higher levels of awareness around international human rights instruments, and only medium-level awareness of the Commission and the CHRA.

Over 70% of survey participants indicated a desire for future human rights training, and look to the Commission as a partner in this regard. To raise awareness, a number of barriers must be addressed: the fiscal and human resource limitations of Aboriginal communities; geographic challenges in reaching isolated communities; and cultural and linguistic differences. The survey also identified the need for culturally relevant educational materials and training and dialogue sessions.

With the Native Women’s Association of Canada, the Commission is developing a plain language guide to assist people in understanding the principles in the CHRA and Commission processes. A second, more detailed guide is being developed to assist First Nations managers and their organizations to understand and apply the CHRA in the workplace.

The Commission is also studying dispute resolution approaches already being used in First Nations communities, and determining how these approaches can be more broadly of assistance in resolving human rights disputes that would otherwise come to the Commission as complaints.

Some Aboriginal organizations operating or administering programs and services under the Indian Act have expressed an interest in developing or refining internal processes and are working with the Commission to create pilot projects. The results of these projects will contribute to the development of a learning guide and best practices for others who may choose to develop their own internal processes.

The overall result of these activities is a better understanding of the unique human rights challenges facing Aboriginal people, leading to strategies for how the Commission can both provide support within Aboriginal communities for better management of human rights issues where they arise, and also adapt its own processes to reflect Aboriginal culture and values.

Links & Resources

Universal Periodic Review Submission National Aboriginal Initiative resource page Canadian Human Rights Commission Policy on Drug and Alcohol Testing Balancing Individual and Collective Rights: Implementation of Section 1.2 of the Canadian Human Rights Act The Commission’s Address to the Human Rights Council during Canada’s Universal Periodic Review Report of the Working Group on The Universal Periodic Review (68 Recommendations) Canada’s Universal Periodic Review Response to the 68 Recommendations R. v. Gladue, [1999] 1 S.C.R. 688 McIvor v. Canada (Registrar of Indian and Northern Affairs), 2009 BCCA 153