HUMAN RIGHTS COMMITTEE CONSIDERS REPORT OF CANADA

The Human Rights Committee has considered the fifth periodic report of Canada on how that State party is implementing the provisions of the International Covenant on Civil and Political Rights.

Introducing the report, Alan Kessel, Legal Advisor at the Department of Foreign Affairs of Canada, said Canada was a crucible of many of the thoughts and aspirations of those who had worked to build the human rights culture that had been built up since the inception of the Covenant, with many treaties and conventions, which had moved the international community to think about human rights as a way of life. The Canadian Charter of Rights and Freedoms protected the right to equality before and under the law, and to the equal protection and equal benefit of the law, without discrimination, and the rights and freedoms therein were guaranteed equally to men and women.

In preliminary concluding remarks, Christine Chanet, Chairperson of the Committee, said time had been insufficient, but it had been a very intensive debate. All the questions raised over the two days had been formulated in a legally-based manner, even if they were on economic, social and cultural rights. There was now a procedure for follow-up of pending issues, and this would cover the definition of terrorism, as was the case also in Canada, which was following-up the matter at the Governmental level. This was a very broad-ranging and difficult definition, and this was perhaps somewhat dangerous, as obligations and duties were inherent in it. With regards to discrimination in Canada, under article 67 of the Covenant, it seemed that Canada had returned to the starting point, so there was a need for follow-up. The absolute ban and prohibition on torture was not negotiable. Canada was bound by the treaty to comply with its international commitment in its entirety.

Other Committee Experts raised questions and asked for further information on subjects pertaining to, among other things, why Canada would resist the proposition that all Aboriginal communities and groups were peoples and instead viewed them as minorities and whether this was linked to collective land rights; other issues related to land rights including the powers of tribes over lands that had been granted to them; issues related to the non-binding interim measures requests from the Committee; issues linked to the definition of terrorism and terrorist activity and what was the religion of those against whom action had been taken in pursuance of the Anti-Terrorism Act and the granting of security certificates; and what actions had been taken to ensure compliance with the provisions of the Covenant pertaining to correctional issues.
The Committee will issue its formal, written concluding observations and recommendations on the report of Canada towards the end of its session which will conclude on 3 November 2005.

The Canadian delegation also included representatives of Justice Canada, Human Resources and Skills Development Canada, Public Safety and Emergency Preparedness Canada, Citizenship and Immigration Canada, Indian and Northern Affairs, Canadian Heritage, the Ministry of the Attorney General, the Department of Justice, the Ministère des relations internationales (Québec), and the Permanent Mission of Canada to the United Nations Office at Geneva.

Canada is among the 155 States parties to the International Covenant and as such it is obligated to submit reports on its performance aimed at implementing the provisions of the treaty. It is also one of the 105 States parties to the Optional Protocol to the Covenant.

The Committee will reconvene in public at 11 a.m. on Wednesday 19 October, to begin its consideration of the second periodic report of Paraguay (CCPR/C/PRY/2004/2).


Report of Canada

The fifth periodic report of Canada says that Canada subscribes to the principles set forth in the International Covenant on Civil and Political Rights. Article 1 of the Covenant is implemented without discrimination as to race, religion or ethnic origin. All Canadians have meaningful access to government to pursue their political, economic, social and cultural development. The Government of Canada acknowledges the Human Rights Committee’s request for further explanation of the elements that make up Canada’s concept of self-determination as it is applied to Aboriginal peoples, and will present information on this specific issue at the oral presentation of this report.

In its previous concluding observations, the Committee recommended that human rights legislation be amended to guarantee access to a competent tribunal and effective remedy in all cases of discrimination. The Government of Canada emphasizes that the Canadian Human Rights Commission and Tribunal have a broad mandate with respect to complaints alleging discrimination. The Canadian Human Rights Act also provides for a range of remedies at the tribunal's disposal. While Canadian women have made many gains in achieving formal equality, full substantive equality has yet to be achieved. Over the last few years, the federal government has introduced a series of measures that have steadily developed support for low and modest income families with children.

The Supreme Court of Canada had decided that assurances that the death penalty will not be imposed by the State requesting extradition are constitutionally required by section 7 of the Canadian Charter of Rights and Freedoms in all but exceptional cases. Eliminating systemic violence against women is a priority for the Government of Canada. The Canadian approach has been to facilitate legitimate freedom of movement, while working toward comprehensive domestic and international policies to prevent the kinds of criminal activities which exploit individuals and erode the integrity of border control systems. The Anti-Terrorism Act contains rigorous safeguards to uphold the rights and freedoms of those affected by it.


Presentation of Report

ALAN KESSEL, Legal Advisor at the Department of Foreign Affairs of Canada, said Canada was a crucible of many of the thoughts and aspirations of those who had worked to build the human rights culture that had been built up since the inception of the Covenant, with many treaties and conventions, which had moved the international community to think about human rights as a way of life. It was particularly proud of the experiment that it was living, which was a continuing challenge, forcing Canada to hold up a mirror to its life.

The report described significant measures taken to implement the Covenant during the period of January 1995 to April 2004. The Canadian Charter of Rights and Freedoms protected the right to equality before and under the law, and to the equal protection and equal benefit of the law, without discrimination, and the rights and freedoms therein were guaranteed equally to men and women. The purpose of the equality guarantee was to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoyed equal recognition at law and who were equally deserving of concern, respect and consideration. Over the last few years, Canada had made significant progress with respect to various equality and non-discrimination laws and policies.

The Charter also provided a constitutionally entrenched right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Eliminating systemic violence against women and children was a priority for the Government. Any and all violence against women was unacceptable in Canadian society; in particular the high rates of violence against Aboriginal women highlighted an urgent problem that demanded Government action. Canada saw no contradiction between protecting security and protecting human rights. The Anti-Terrorism Act, which provided additional tools to deter, disable and prosecute terrorists, was carefully tailored to respect the Charter.

One of the main human rights challenges facing Canada was ensuring the full and equal enjoyment of all human rights by Aboriginal Canadians. Policies had been developed by the Government, which was engaged in negotiating agreements with Aboriginal communities to resolve land claims, to implement Aboriginal rights, and to provide for Aboriginal self-government. Canada wished to express its appreciation for the work of the Committee, whose role in monitoring implementation of the Covenant by State parties was indispensable in ensuring the full and effective enjoyment of civil and political rights. Canada was also committed to extending human rights and human security throughout the world.

Questions by the Committee Experts

A series of questions were submitted in writing by the Committee Experts in advance of the meeting, to which the delegation responded.

Right to Self-Determination

Responding to the written questions, the delegation said Canada, at the United Nations Working Group on the Draft Declaration on the Rights of Indigenous Peoples, had expressed various views. Canada had repeatedly stated its strong support for a strong declaration. The Government suggested the right to self-determination accorded with a number of other principles, including the political, constitutional and territorial integrity of the democratic state. The exercise of this right depended on negotiations between the Aboriginal members and the Government. The right of self-determination was aimed to promote harmonious government. The right should not be construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination, and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind, the delegation said.

The Government believed that the understanding of the right to self-determination was evolving, but there was no consensus yet on the extent of the right, nor to whom it applied, the delegation said. The Committee should view the written submission to this effect. The Government of Canada attempted to support the objective of resolving the practical questions on how groups living in an existing democratic state could fulfil their economic, social and political objectives whilst remaining part of the State in the domestic context through programmes and policies and special measures and in participation in the United Nations Working Group on the draft declaration, which contributed to the development of international law on this point.

The Government of Canada was committed to pursuing a collaborative approach to policy renewal with Aboriginal people and national Aboriginal organizations, the delegation said. The substantial work on policy renewal was expected to begin over the course of the coming year with appropriate involvement of Aboriginal rights holders, National and Provincial Aboriginal organizations, and provincial and territorial Governments. The Government was taking active steps to promote the equal participation of Aboriginal women in the negotiation of self-Government agreement and land claim (modern treaty) negotiations. Many provinces and territories encouraged the participation of Aboriginal women in the negotiation of self-government agreements and any agreement relating to Aboriginal people.

Constitutional and Legal Framework within which the Covenant is Implemented

In 1999, the delegation said, the Minister of Justice had announced the establishment of an independent panel to conduct a review of the Canadian Human Rights Act, the report of which was released in 2000, containing 165 recommendations on various issues. The Government of Canada was committed to the promotion and protection of human rights, and modernising human rights legislation was a complex task, which the Government took very seriously. The recommendations of the Review Panel had made a significant contribution to Canada’s understanding of the protection of human rights and were an important consideration in developing strategy.

On action that had been undertaken to address the Committee’s concern about the inadequacy of remedies for violations of articles 2, 3 and 26 of the Covenant, the delegation said all individuals in Canada, according to the Charter, and regardless of race, national or ethnic origin, colour, religion, sex, age, mental or physical disability or any analogous ground, were to be considered equal, and the Governments should not discriminate on any of these grounds in laws or programmes, the delegation said. Both men and women were equally protected under the Charter. The Canadian Human Rights Act provided protection from discrimination related to employment, or to the provision of goods, services, facilities or accommodation that were customarily available to the general public in areas of federal jurisdiction.

The Government of Canada always gave careful consideration to interim measures requests from the Committee, and would respect them where it was possible to do so. The delegation noted that Canada usually acted in accordance with the interim measures requests issued by human rights bodies, and was committed to do so in the future, although the decision whether or not to act in accordance with an interim measures request would necessarily be made on a case-by-case basis. Canada was also of the view that interim measures requests were non-binding on States.

Counter-Terrorism Measures and Respect of Covenant Guarantees

A core provision of the Anti-Terrorism Act was the Criminal Code definition of terrorist activity. The definition, which had two components, applied to activities inside or outside Canada, and satisfying either constituted a terrorist activity. The first component of the definition was defined in part as an act or omission committed in or outside Canada that would be an offence under the major international instruments that applied to terrorist activities; the second part provided a general definition of terrorist activity. The legislation did not target any particular group, and political, religious or ideological activities were not criminalized in and of themselves. A review of the Anti-Terrorism Act had begun in 2004.

The Anti-Terrorism Act provided for a recognisance with conditions, which was a measure that was intended to assist peace officers to disrupt terrorist attacks. The use of the recognisance with conditions was only available under strictly defined conditions, and was subject to numerous procedural safeguards. From 2001 to 2004, it had not been used by federal authorities. If a person was arrested either with or without a warrant by a peace officer in order to bring him or her before a judge for a decision as to whether a recognisance with conditions should be imposed, section 10 of the Canadian Charter of Rights and Freedoms would apply. A person could not be convicted of a criminal offence on the basis of evidence to which that person did not have full access.

Prohibition of Discrimination, Gender Equality, Equality in and before the Law

The Government intended to repeal section 67 of the Canadian Human Rights Act. In recognition that the section excluded a significant sector of the population from the protection of human rights, it had introduced an amendment to repeal the exclusion clause and include an interpretive clause allowing measures that took into consideration the needs and aspirations of Aboriginal communities. The federal Government was committed to ensuring that Aboriginal women who lived on reserves were treated fairly and equitably with regard to the division of matrimonial property on the break-up of their relationship.

Several studies had been carried out in Canada with respect to racial and ethnic minorities and which assisted in assessing the situation of African-Canadian communities, and addressing issues facing these communities in the elaboration of policies and programmes. Despite similarities in education, there were disparities in earned income and employment rates.

Right to Life and Prohibition of Torture and Cruel, Inhuman or Degrading Treatment

The Government of Canada supported an initiative to build the capacity to undertake a multi-pronged approach to address the issue of violence against Aboriginal women, including undertaking research to assess the extent and causes of racialised and sexualised violence; implementing a national public education strategy; and ensuring an independent evaluation to measure progress and modify timelines, priorities and next steps. To improve the situation of Aboriginal women, Ministers had agreed for the third year in a row to take joint and/or individual Government action: on access to programmes and services, public education and awareness, capacity-building and policy enhancement according to their respective priorities and needs.

To date, no reliable method for counting the number of people who were homeless in Canada had been identified, and therefore Canada did not have any accurate national statistics. The very nature of homelessness meant that counting the people affected was difficult. Homelessness seemed to have increased visibly in urban centres, but no one was sure how many people lived on the streets or in substandard shelter. A National Homelessness Initiative had made some progress, and identified some challenges.

Compliance with all of its international obligations was a cornerstone of Canadian foreign policy and its values. Canada also had an obligation to protect the right to life and security of those within its borders, and part of this responsibility was to take action against those individuals who were in Canada or attempted to enter Canada who presented a risk to national security or the security of persons. Canada was considering augmenting in this respect the alternatives to removal that were currently at its disposal for addressing security concerns. Criminal prosecutions were a possibility, provided that available evidence could meet the standards applicable in criminal proceedings and that the safety of persons who could testify against the accused was not at risk.
Questions Posed Orally

Committee Experts then asked various questions and made comments on a number of topics, including why Canada would resist the proposition that all Aboriginal communities and groups were peoples and instead viewed them as minorities and whether this was linked to collective land rights; other issues related to land rights including the powers of tribes over lands that had been granted to them; whether Canada had ever contemplated using the New Zealand model with regards to the Aboriginal inhabitants; remedies for violation of the non-discrimination articles and violations of human rights legislation in the case of non-adjudication of a case; issues related to the non-binding interim measures requests from the Committee; and effective remedies to abuses of power with regard to terrorism in the context of the issuance of a certificate of deportation which could put a person at risk of torture.

Response to Oral Questions

Responding to these oral questions and others, Mr. Kessel said regarding the commitment of Canada to the treaty body system and the human rights culture to which it was committed and had contributed to over the last 50 years, Canada was strongly committed to the United Nations, the Committee, and the legal status of the various covenants. On Canada’s participation and interaction with non-governmental organizations (NGOs), there was a constant, living body of interaction every day of the week, with more formal sessions between the Government and the NGOs which were the foot soldiers that the Government relied on to help them understand on the ground realities and the implementation of human rights issues at that level.

On questions related to Aboriginal issues, the delegation said on the issue of the recognition of Aboriginal collectivities as people, the Government of Canada believed that the understanding of the right to self-determination was continuing to evolve. There was no State practice to refer to which clarified the extent or the scope of this right, or to whom it applied. Its application to people living in democratic states was being discussed in the Working Group on the drafting of the convention on the rights of indigenous peoples, where Canada had advocated and supported a text that was universally applicable while respecting the integrity at many levels of democratic States. There was a fiduciary relationship between the Crown and Aboriginal peoples, but there was no fiduciary duty to ensure the participation of women in negotiations. In Canada, Aboriginal and Treaty Rights were recognised and affirmed in the Constitution, and were provided the highest level of protection, and could not be infringed without justification.

With regards to the criteria for judicial control of the decision of the Canadian Commission for follow-up to a complaint on human rights in Canadian law, the Commission could either refer this to the courts or not. It was up to the Commission to decide, as it had discretionary powers in this regard. However, its decision could be appealed against in the Federal Court, which could intervene if the Commission had committed an error in law, for example by not respecting its duty to act in a fair way. On alternatives to the Commission, it was possible for a complainant, if their complaint has not been referred, to address an ordinary court on the question of a violation of the rights mentioned in article 15 of the Canadian Charter. On setting up a body to evaluate whether Canada was fulfilling its international obligations, this issue was currently under review by the Government.

The Anti-Terrorist Act carefully targeted terrorists, and not on any religious, ideological or political activity in particular, the delegation said. The words of the definition helped to define terrorist activity away from any form of criminal activity involving violence. The motivational aspect recognised the unique nature of terrorism as having effects beyond those of singular crimes, as it had a unique political and ideological dimension and aimed to create apprehension of harm. The definition served as an additional safeguard, and could help prevent convictions for actions that had no political or ideological dimension. The Government was open to suggestions of refinement, and had listened to the concerns of Canadians in this regard, and had made amendments to clarify the safeguards in the Act in order to ensure the safety and integrity of Canadians, whilst protecting their values and lives. As to implementation of the Act, the Royal Canadian Mounted Police and other governmental services did not tolerate racial profiling, and had announced this publicly. Investigation could only take place if individuals appeared to be contravening the laws of Canada.

With regards to security certificates and the effective remedies in the context of the certificate process, the delegation said that judicial review of the reasonableness findings were limited to questions of law and jurisdiction. The Federal Court had articulated the notion of reasonableness and its application. In further defining the notion of reasonableness and needs to believe standards, the requirements that came close to evidence standards did not require that a designated Judge acknowledged the existence of facts, but that a bona fide belief that a serious possibility based on credible evidence existed. The Supreme Court had noted that removal to torture was not approved by international law, but defining rights under the Canadian Charter were in accordance with constitutional justice. No individual had been removed from Canada on the basis of the balancing approach. There was no Government of Canada policy of sub-contracting torture. The evidence did not show any pattern of complicity of Canada with the detention of Canadians abroad.

Liberty and Security of the Person, and Treatment of Prisoners

Canada had concerns about young people serving time with adults, and it was for this reason that it had strengthened the protections against this in the new youth justice legislation, which came into effect in 2003. The clear rule was that a young person, who was anyone under eighteen, who was serving a youth sentence would never serve it with adults. A youth with an adult sentence could only be placed in an adult facility if a judge pronounced that it was in their best interests or if they would imperil the safety of others, the delegation said. There was no one under the age of 18 in an adult corrective institution.

Canada did not currently detain individuals for immigration purposes, whether asylum seekers or others, in federally operated correctional facilities, the delegation said. Although detention for immigration purposes fell under federal jurisdiction, in such cases the provisions of the statutory regime in effect for the care and treatment of inmates in that jurisdiction applied. Protocols existed for representatives of the United Nations High Commissioner for Refugees to monitor detention conditions for detainees who were seeking refugee status in Canada. Detention was a serious matter, which was only used when no other course of action would serve. The detention of minors was not precluded, but detention was only used as a last resort, and the best interests of the child were considered by decision makers. There was a designated representative for all minors who were subject to any proceedings before the Immigration and Refugee Board.

Right to Freedom of Opinion and Expression, Right of Peaceful Assembly

The ability of the police in Canada to make large-scale preventative arrests of protesters was very limited. The Charter guaranteed the right to liberty of all Canadian citizens, as well as the right to protection against arbitrary detention or imprisonment, the delegation said, and no one could be deprived of their liberty or rights except on grounds provided for by law and subject to statutory procedures. The police did not have the power of preventative arrest of a person except with respect to terrorist activities where there were reasonable grounds to suspect that a person was about to commit a terrorist act.



Right to Freedom of Association

With regards to the right to engage in trade union activities in the context of agriculture, some provinces did not exclude agricultural workers in their Labour Relations Act. Some continued to monitor the issue, but had no plans to include farm workers, the delegation said. Some provinces had raised concerns that the definition of the concept of collective bargaining applied by the ILO was too broad.

Protection of the Child

On the topic of how the State party ensures the provision of the National Child Benefit to all low-income families, regardless of province, the Benefit represented a key element of the Government of Canada’s approach to address child poverty, the delegation said. Through it, the Government worked in partnership with provincial and territorial Governments to provide income support, as well as benefits and services for low-income families and their children. An approach combining flexibility and partnering had served to support the objectives of the Benefit, and had helped to significantly reduce the number of children living in low-income families across Canada.

Right to Take Part in Public Affairs

The Government of Canada was committed to building a federal public service that was representative of all Canadians, the delegation said. The most recent statistics showed that women, Aboriginal persons and persons with disabilities were employed in the federal public service at a higher rate than their participation in the overall labour force; however, despite continued gains, the representation of persons in visible minority groups continued to lag behind their labour market availability.

Rights of Persons Belonging to Minorities

Land claim negotiations between the Government of Canada and the Lubicon Lake Indian Nation were currently at an impasse, the delegation said. On action adopted by the State party in order to remedy the discriminatory effects of the Indian Act against Aboriginal women and their children and in particular to address the issue of second and third generation loss of reserve membership, the delegation said that while there had been progress, the membership sections of the Indian Act remained unchanged over the course of the period covered by the report. Moreover, the reference to the issue of the second and third generation was misleading. In terms of progress, a consultative process with First Nations, Inuit and Metis had been under way over the past year.

The Aboriginal Languages Initiative supported community and home initiatives for the revitalisation and maintenance of Aboriginal languages, leading to an increased number of speakers, the expansion of the areas in which Aboriginal languages were spoken in communities, and inter-generational transmission of the languages, the delegation said. It was delivered through collaborative efforts of the Department of Canadian Heritage, and three national Aboriginal organizations and their affiliates.

Dissemination of Information Relating to the Covenant

The Human Rights Programme of the Department of Canadian Heritage informed the public about the Committee’s concerns and recommendations by posting the concluding observations on its website, and it sent them to federal, provincial and territorial Governments for further distribution, the delegation said. The public was also informed about Canada’s appearances before treaty bodies by posting the Head of Delegation’s statement on the website once it had been delivered. It was not general practice to distribute treaty body documents directly to Members of Parliament. A Senate Standing Committee on Human Rights had been established to look at issues pertaining to human rights and to review the machinery of Government dealing with Canada’s international and national human rights obligations.

Oral Questions Posed by Experts

Committee Members asked other questions and made comments on varied topics, including the equality of women, cuts in welfare and the poor conditions for women and children, in particular in British Columbia which had many cuts in its social programmes; issues linked to the definition of terrorism and terrorist activity and what was the religion of those against whom action had been taken in pursuance of the Anti-Terrorism Act and the granting of security certificates; what type of measures had been adopted or were planned in response to the recommendations submitted by the Canadian Human Rights Commission on women detainees, and what actions had been taken to ensure compliance with the provisions of the Covenant pertaining to correctional issues; and the policies that applied to promote and advance Inuit languages.

Response by Delegation

Responding to these and other questions, Mr. Kessel said that the delegation was happy to have provided answers, and would do so in writing for all questions so that the Committee could view them more at leisure. With regards to the question on security certificates, an immediate clarification on the types and names of individuals who had been subject to these was available, and the delegation said that since the certificate process had been in place over 20 years, there had been 27 certificates issued in total. Security certificates were an exceptional measure and were issued to protect for reasons of national security, and were always based on the threat, which provided the justification for collecting the data. They included left- and right-wing extremists. Further answers would be provided soon.

Mr. Kessel said that many of the questions were related to economic, social and cultural rights. While it was useful that some of these issues were touched upon as tangential, the more extensive response that the Government had given on these topics had gone to the appropriate committees, such as in the case of questions on children. From the point of view of those who had helped design the instruments that they were now responding to, the idea was that there would be no overlap. Those who were looking at new models of the treaty body system had noticed this as a rather worrying phenomenon.

Preliminary Remarks

CHRISTINE CHANET, Chairperson of the Committee, said she wished to thank the delegation, which had been very expert, and had provided very detailed, precise replies to the questions, both written and oral. Time had been insufficient, but it had been a very intensive debate. Following the last comment, it was true that some matters could be duplicated, certainly as regards subject matter, but in the Human Rights Committee it rarely happened that the questions arose in any way other than a very-legally based manner. All the questions raised over the two days had been couched in such terms, even if they were on economic, social and cultural rights.

There was now a procedure for follow-up of pending issues, and this would cover the definition of terrorism, as was the case also in Canada, which was following-up the matter at the Governmental level. This was a very broad-ranging and difficult definition, and this was perhaps somewhat dangerous, as obligations and duties were inherent in it. The definition had had to exclude matters such as strikes. With regards to discrimination in Canada, under article 67 of the Covenant, it seemed that Canada had returned to the starting point, so there was a need for follow-up. The absolute ban and prohibition on torture was not negotiable. The delegation had raised the issue of the balance struck by the Supreme Court between the security of the state and the rights of individuals. A number of Experts had said it was not possible to strike such a balance. Canada was bound by the treaty to comply with its international commitment in its entirety.

It was up to the State to adhere to the temporary measures as stipulated by the Committee. There was a series of issues that would be subject to follow-up, in addition to the very important point of article 1 of the Covenant, and the way in which Canada understood this article. Ms. Chanet thanked the delegation, saying that the additional information was eagerly expected.