Subcommittee on International Human Rights Committee on May 28th, 2009

[The Vice-Chair, Liberal, Mario Silva]

I'd like to call the meeting to order.

First of all, I want to state that our chair will be here, hopefully, in about half an hour. In the meantime, I'm Mario Silva, the vice-chair of the committee, and I want to welcome both witnesses here.

Just before we do that, I want to know if it is the will of the committee and if we can have some agreement.... We have an individual, Yessica Morales, who is visiting Canada. Maybe we could have Mr. Marston actually speak to the issue and then see if there is consensus within the committee.

Mr. Marston.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Thank you, Mr. Chair.

This young woman's father was a Colombian activist who was murdered by the paramilitary. She is on a tour through Canada. Since the committee has passed the motion to study Colombia, we thought it would be of value to the committee if she were allowed to give us 20 minutes of commentary and take questions at the end of this meeting.

I understand that this is a surprise. I didn't know about her visit until four o'clock yesterday myself. She is being interviewed at the present time by The Toronto Star and would be here probably within half an hour. If at the end of the meeting we could do that, I certainly would appreciate it.

Thank you.

[The Vice-Chair, Liberal, Mario Silva]

Is there agreement from the committee members?

[David Sweet, Conservative, Ancaster—Dundas—Flamborough—Westdale, ON]

Mr. Chairman, are we talking about 20 minutes, or are we talking about 20 minutes with a round of questions? That doesn't leave very much time for the witnesses we have here right now.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

I'm not tied to any particular time.

[The Vice-Chair, Liberal, Mario Silva]

Right now we have two witnesses. That could take us an hour, and we could leave the last half hour, if we wished, to have Ms. Morales speak for about five minutes and then maybe have people ask a few questions of her. Is that agreed to?

It is agreed. We will have her speak.

She is here, Mr. Marston? She is here, and you will get her?

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

She is in the building. Our staff will have her here. She has a representative here right now.

[The Vice-Chair, Liberal, Mario Silva]

Okay, thank you very much.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Thank you.

[The Vice-Chair, Liberal, Mario Silva]

We will begin.

Welcome to the committee. Who will start first? It will be Professor Lamarche first.

Thank you, and welcome.

[Lucie Lamarche, Full Professor, Common Law Section, As an Individual]

Thank you, Mr. Co-Chair.

I would like to thank the members of the committee for their interest and I congratulate them on the welcome initiative taken by the subcommittee, to highlight the importance of this new procedure by the Human Rights Council, the UPR, the Universal Periodic Review. I may sometimes use the acronym UPR myself, rather than the French EPU, and I hope the translators will forgive me.

I read the excellent presentation given by my friend and colleague the Secretary General of Amnesty International, Alex Neve, on Tuesday, and I will be very careful not to reiterate what he said, with which I am in total agreement.

The remarks that follow will focus on the national implications of the Universal Periodic Review procedure. After providing some details to explain the mechanism itself, I will address the central issue of the difficulties reported in terms of monitoring the implementation of human rights at the national level, and conclude with a few recommendations.

I would briefly recall some points relating to the Universal Periodic Review, the UPR, by the United Nations Human Rights Council. Point 5(e) in resolution 60/251, adopted by the United Nations in 2006, describes the UPR as an exercise to evaluate the fulfilment by States members of the United Nations of their human rights obligations. It adds that the review shall be conducted in a spirit of cooperation and dialogue and based on objective and reliable information.

I think it is very important to keep in mind that this new exercise, carried out by peers, is not a substitute for the oversight performed by the independent expert organs under the treaties; rather, it supplements that work. This is an important observation, since the independent periodic evaluation by treaty organs does not leave it up to the State party to choose the recommendations or the roadmap that it intends to follow, while the UPR puts the State in charge of that roadmap, until the next periodic review.

At this point in experience with the UPR, I think it is wise to say that any evaluation of the mechanism itself is premature. We should however recognize that it to its credit it invites the entire international community into the exercise, both to evaluate and to be evaluated.

In fact, the review of the Canadian report that the Working Group of the Human Rights Council carried out was largely based on the compilation produced by the United Nations High Commission on Human Rights, and so no one can claim to be surprised on reading the report produced by the working group as a result of that review. Nor can anyone claim to be surprised at the very active participation in the exercise by civil society organizations, civil society itself having actually become expert in the area of international human rights law.

I do not want to list the salient points in the 68 recommendations in the working group's report here again, except to say that we must agree that certain issues have become pressing and urgent.

Canada therefore cannot claim that it is being asked to consider anything new as a result of these exercises. What distinguishes the UPR is actually "who is saying it" rather than "what is being said". In this case, Canada is being called to account by its peers, and how it responds to that call will also be interpreted and handled by the international community.

The structuring questions that I would like to raise with you today really involve the issue of the implementation of human rights at the national level and the need to cooperate with civil society in that exercise.

We have to recognize that in Canada, relations with the United Nations run on parallel tracks. On the one track we have federal, provincial and territorial departments and agencies, and the famous but nonetheless obscure Subcommittee on International Human Rights does its work and sends its communications to the United Nations.

On the other, we have civil society, which these days, and let us say it again, has readier access to United Nations institutions than it has to the Canadian government itself, when it comes to discussing issues relating to the implementation of human rights in Canada.

This has gone on so long that sometimes it is difficult to keep a straight face, and this problem is not unique to the advent of the UPR on the Human Rights Council landscape. It's a little like a cat and mouse game played out on two planes.

On the first plane, the federal/provincial/territorial human rights committee serves as the drive belt for information to be included in the Canadian report. Then Canadian Heritage edits the report, and, it has to be said, it has an annoying habit of consulting civil society post facto, and not at the outset. It was no different in the case of the report of the Human Rights Council Working Group. What happened was that civil society was invited to contribute in April, rather than before the Canadian report was submitted to the Human Rights Council.

I would reiterate that we may well wonder about this situation, given that we knew, in view of the source of the working group report, that there would be nothing particularly new and that essentially what it involved was submitting information that had already been collected, and recommendations that had already been made by the expert, independent treaty oversight organs, for review by peers. That is the first area of discontent.

Canada is a dualist federation. In this country, human rights instruments do not automatically become part of domestic law. That is the second area of discontent. However, developments in international law, the people's law, mean that the Canadian government can no longer rely on that theory, as if it were running for cover. But really, it is a hiding place with two doors. First, the provinces and territories state their preferences regarding the international obligations they choose to ratify, and then, they throw the ball back into the federal government's court and say they don't have to explain why they are not complying with Canada's international obligations. The most classic case in this regard is the International Covenant on Economic, Social and Cultural Rights, where the ping-pong game between the various levels of government has reached completely counterproductive heights.

This grey zone, which is said to be unique to Canadian federalism, has many consequences, and they are illustrated in the working group's report. One particular example is the withdrawal of the reservations regarding the International Convention on the Rights of the Child. Another is the United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, which has not been ratified; and the protocol to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the recent Convention on the Rights of Persons with Disabilities, or the International Labour Organization Convention concerning Indigenous and Tribal Peoples.

Each of these issues raises questions involving federal, provincial and territorial jurisdictions. Obviously, we have not found ways of communicating that allow us to bring Canada up to the level of contemporary international standards for human rights. "We consult," the federal government says. Well we have been hearing that for a very long time and it is still going on in the same opaque realm as it did in the early 1990s. So that is the second problematic area.

Before giving you my recommendations, I am going to address one final issue. This relates to the follow-up on the Universal Periodic Review, or UPR, that the government is announcing in the Roadmap it is to produce. We should be able to see this next week. What we don't know, however, is whether the Roadmap will provide a permanent follow-up mechanism, or whether we are just going to find ourselves collecting ad hoc proposals or proposals announced today that nothing more is said about until the next Universal Periodic Review. This would be extremely unfortunate.

In a nutshell, what use will be made of the Roadmap? As well, how will the Canadian government use the Roadmap in dealing with other expert, independent organs, in relation to oversight of the treaties it has ratified? In other words, will it make everyone wait from now until the next Universal Periodic Review is held?

Our recommendations focus on two issues, both of which arise out of the same principle. First, it is urgent that open, rational and ongoing dialogue about human rights in Canada be encouraged. This dialogue model will ensure, first, that the situation as it relates to human rights is evaluated, and second, that a consensus is sought regarding the ratification and promotion of new human rights standards. It is an open secret that this type of procedure can come about only if political leadership is expressed and there is a profound statement of its faith in international human rights law. This is not a simple thing, particularly since that leadership has to be expressed not only transversally, but also at several levels, that is, at both the federal and the provincial or territorial levels.

So what are we waiting for, to take two actions that Canadian institutions know are necessary? First, as the Secretary General of Amnesty International said on Tuesday, the conference on the leadership provided by both federal and provincial ministers responsible for human rights should be convened. Second, this mysterious federal/provincial/territorial human rights committee should be opened up and transformed into a permanent, democratic advisory committee, where experts, and I stress that term, from civil society would be consulted not on an as-needed basis, but on an ongoing basis. That would avoid some awful messes. For example, we still don't know exactly why Canada has delayed ratifying the Optional Protocol to the Convention Against Torture. We could cite numerous other examples, including the famous case of the American Convention on Human Rights.

In short, this open space would reshuffle the deck in terms of our understanding of human rights. It could not help but facilitate constructive rather than defensive dialogue in this area. I reiterate that this proposal cannot relieve the provinces and territories of their obligations, and that applies to Quebec on the same basis as the other provinces and territories. The quasi-secret practice of assigning reports to the United Nations to the provincial human rights commissions, and then having them receive ministerial approval before being routed through Canadian Heritage, has to stop. This necessary dialogue also has to be open, at the provincial and territorial levels. In other words, we have to stop allowing or tolerating the practice by other levels of government of referring us to the federal government when it suits them.

The government will undoubtedly be tempted to commit itself to developing performance indicators it can use to better manage its next report for the next Universal Periodic Review.

Indicators are useful, but they do not replace political dialogue. They are also limited by nature. They are no substitute for the requirement that concrete expression be given to human rights.

In conclusion, the UPR provides something new, a little something new. We can still take consolation in the fact that it has reopened dialogue on the question of how to keep human rights issues permanently on the agenda in Canada.

[The Vice-Chair, Liberal, Mario Silva]

Thank you, Professor Lamarche. I completely forgot to mention that because we have only an hour for the meeting, it is best if we limit all witnesses to 10 minutes' speaking time, if possible. Thank you.

Samira Ahmed, you're next.

Thank you.

[Samira Ahmed, Board Member, Canadian Coalition for the Rights of Children]

Thank you.

The Canadian Coalition for the Rights of Children appreciates the opportunity to speak with you about Canada's implementation of international human rights agreements.

My name is Samira Ahmed, and I am a student board member with the coalition, filling in today for Kathy Vandergrift, our chairperson, who is in Vancouver speaking on the rights of the child. I am a law student at the University of Ottawa in the field of international human rights.

When Canada was appointed to the Human Rights Council it pledged to uphold the highest standard in promotion and protection of human rights. I invite you to look at the recent review of Canada's performance under the universal periodic review process.

Over 50 Canadian NGOs registered concerns with a common theme of failure to meet minimal standards. Other UN members from all parts of the world tabled similar concerns about the very basic implementation of human rights treaties in Canada. Canada received over 88 recommendations for action, including many that address general implementation of all human rights agreements. One would expect that after the government heard of this, they would have felt embarrassed and would have actively engaged in improving the situation. Following the review, only one day of consultations was conducted with Canadian NGOs, but it was not entirely a consultation, because no proposals were put on the table as to how the situation could be improved.

Civil society repeated the same things it said before. Canada needs to put in place an effective, transparent, accountable system for implementing its obligations under international human rights treaties. The experience of children's rights is a good example of the need for improvement. Canada was a leader in the development of the Convention on the Rights of the Child. We will celebrate its 20th anniversary this fall.

Canada was to present its third report on the implementation of the convention in January 2009. It is late. It has not yet been presented. There have been no consultations with civil society, as required during the convention. Most important, there has no been reporting on the over 45 recommendations that Canada received during the second review in 2003. This is in spite of a three-year study done by the human rights Senate committee and an excellent report titled “The Silenced Citizens”, which called for major improvements in the way Canada implements the rights of children. We hope this committee will recommend specific improvements for implementing all human rights now, and then take a closer look at children's rights as an example in the light of the upcoming 20th anniversary and Canada's third report on implementation.

The Canadian Coalition for the Rights of Children would like to put forward four proposals for your consideration, the first being structural reform: Reform or replace the continuing committee of officials on human rights at the senior body responsible for implementing, monitoring, and reporting on Canada's human rights obligations. It is obvious from the UPR process that this current structure is not working. The Senate human rights committee came to the same conclusion in 2007 in their report “The Silenced Citizens”. The government's response stated that this committee does not take seriously its responsibility to implement children's rights.

Let me share the coalition's experience with this committee. In 2008 we wrote to them with the simple request to tell us what they had done with the 45 recommendations they had received in 2003. It seemed logical that this would be the starting point to write the third review on the implementation of the convention. What was the answer we got? They would not tell us anything. They would not meet with us. And that was 2008. It is now 2009, the end of May, and we still have not received the third report on the implementation of the convention that was due in January. Not only that, but there has been no consultation with civil society. We still don't know what was done with the recommendations received in 2003, and most of those recommendations were actually repeats of recommendations received in 1995. This does not serve Canada's children well, and it does not serve you well as parliamentarians.

A committee that meets infrequently, in secret, and refuses to tell anyone what it's done or to meet with the people who are affected by the decisions it's talking about flies in the face of what human rights and good government stand for. Ending the secrecy by requiring a regular public reporting will have a transforming effect on the whole system. This should start with public responses to recommendations received from UN treaty bodies within one year of receiving them.

The second recommendation we put forward is to reform the nature and quality of reporting. Implementation reports should be based on outcomes for all people covered in the human rights agreements. Current reports catalogue government programs but tell us very little about the situation of the people they're supposed to help.

Let me give you an example. The one initiative for children cited in Canada's report to the UPR is the national child benefit. This program description sounds great, but in reality, in December, the same month as the report was filed to the UPR, the National Council of Welfare released a detailed report on what people actually receive from government benefit programs, including children, and the conclusion paints a very different picture. Most families on welfare composed of two parents and two children, or one parent and one child, are worse off than they were ten years ago. The report goes on to state that this is a big step backwards in the fight against child poverty.

This is the kind of information you need to know. You need to know the impact the programs and policies have on children. You need to know the truth about the situation of people in Canada. That is what rights-based reporting can give you. Officials continue to tell us that federalism is the challenge. I would suggest that rights-based reporting for outcomes affecting people could be a part of the solution, because it would provide us with useful information on outcomes for intended beneficiaries of government initiatives, or the realities that need to be addressed. It would allow you to assess programs to see if they are benefiting the people they are intended for and make adjustments if needed.

The federal government is responsible for Canada's implementation of human rights agreements. One of the effective tools it could use without violating provincial jurisdiction is regular rights-based reporting on the real situation of people across Canada, in relation to the full range of issues addressed in human rights agreements.

The third recommendation we would like to put forward is to adopt a continuous improvement model for monitoring and implementation of international agreements. A continuous learning and improvement model is preferable to the current approach, which is a defensive report submitted every five years that deals with the same issues every five years. This involves very few consultations with young people or civil society organizations that are working with children. When implementation is something we are dealing with regularly, we share information and strategies for improvement in our discussions. Then there is less need to be worried about accountability.

A continuous improvement model would include early response and more preventative approaches, which are consistent with the promotion of human rights. The Convention on the Rights of the Child, for example, explicitly calls for cooperation between government and non-governmental organizations to realize the rights of children. A cooperative, continuous improvement strategy would be more effective and less adversarial than the current approach of debating the same or similar issues before the UN committee every five years.

The last recommendation we'd like to put forward is to use children's rights as a case study. Canada and this committee have an opportunity for improvement with the current report on the implementation of the Convention on the Rights of the Child. It is also a strategic opportunity, given that the twentieth anniversary of the convention is approaching in the fall.

Canada claims to be the leader in children's rights, but is falling behind in other countries in the implementation on the Convention on the Rights of the Child. The Canadian Coalition for the Rights of Children encourages this committee to take a specific focus on the rights of children following this general study on human rights.

I have with me a summary fact sheet of the 45 recommendations that were received by the Canadian government in 2003. They're broken down into ten key areas that could make a great difference for young people in Canada. If Canada wants to remain an international leader in children's rights, then it needs to examine its own record in the ten areas. A closer look at Canada's third report by this committee could provide a good opportunity to understand the interface between practices within Canada and the international human rights agreements. The coalition welcomes the opportunity to work with you in improving the way Canada implements international human rights obligations for the sake of our children first, and also for the international reputation of our country.

Thank you.

[The Vice-Chair, Liberal, Mario Silva]

Thank you very much.

Given the fact that we only have about a half an hour left, I'm going to ask if it's okay with the members to limit it to five minutes, and only one round.

Mr. Kennedy.

[Gerard Kennedy, Liberal, Parkdale—High Park, ON]

Thank you.

I have a similar question for both of you. I think the underlying problem here is that the rights discussion quickly gets rarefied and disconnected. Madame Lamarche is recommending an open dialogue, and you're looking for relevant continuous improvement to replace the.... This is a heavy means of going about things, and it's easy for people to not take this process seriously. I'm not suggesting that applies to this committee or the government, but it kind of floats away. I guess I'm wondering what other countries have done to make the rights discussion more real.

To give you a concrete example, I ran food banks in this country for 13 years. Children and families went without food through no fault of their own. There is no real visceral recognition that this condition exists in this country, yet you don't have to go very far down the list of rights to see some basic security rights that people should have, including food, shelter, and so on.

Have other countries done better at centring the relevancy and having that open dialogue?

Ms. Ahmed, by the way, please convey my greetings to Ms. Vandergrift. We worked together in Edmonton years ago.

Has anyone brought this out of the committees and reports and into where the public cares?

[Lucie Lamarche]

Thank you for the question.

Two examples come to my mind. The first one is Brazil. Brazil has a continuous process, where institutions as well as civil society representatives are involved all the time. So there isn't this big rush six months before producing any report whatsoever, either dedicated to an expert committee, or now in the case of the Human Rights Council procedure. There's the idea that there is a continuous discussion and we're always ready for conclusions; it doesn't mean we never have anything to celebrate. Brazil is not a small country, and it is a federation, so it's interesting in that regard.

The other example is South Africa. It has a mixture of human rights institutions and civil society networks that work on a permanent basis, which means that at the end of the road, representatives of both parties agree to agree, and agree to disagree. You don't need to be in Geneva to have this “confrontational moment” and then come back home to move to another set of human rights. The idea of permanency and continuity is closely linked to the real meaning of consultation and accountability.

I think the Canadian government has always promoted the idea that at the moment a report is transmitted to civil society, it has been consulted. Consultation means that you have to be informed of what's at stake and aware of the facts, and can come together on conclusions. Parliamentary accountability also means accountability to civil society, and there are existing and working examples that are not very expensive. The idea is to open the institution and get the process.

[Gerard Kennedy, Liberal, Parkdale—High Park, ON]

Thank you.

Ms. Ahmed, is there anything you'd like to add?

[Samira Ahmed]

Other countries have implemented a child commissioner at the federal level to help monitor children's rights. It allows for more dialogue with children and integration into the curriculum so children are more aware of their rights. Then they can report and know that there's somebody they can go to if there is a rights-based issue with children. It can help with accountability and dialogue to have somebody continuously available to allow for change in the process. Countries like U.K. have implemented that system.

[Gerard Kennedy, Liberal, Parkdale—High Park, ON]

Thanks very much.

[The Chair, Conservative, Scott Reid]

We are out of time on that question. Thank you.

Madame Thi Lac.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

Thank you, ladies, for being with us this afternoon. Your presentations were interesting. I am going to start by asking you a question.

You referred to treaties that you say it is important that the government sign, including the treaty against torture. Do you not believe that the government is making mistakes at this point? As well as not signing certain important treaties, we have reached the point where treaties that have already been signed by Canada are no longer being honoured.

Take the Omar Khadr case, we know he was a child soldier. Canada is a signatory to the agreement on child soldiers. As well as not honouring that treaty, we are also seeing Canada challenging judgments in the courts and also not honouring resolutions adopted by Parliament in this regard.

I would like you to address that subject. How can we counteract that? As well as not signing new treaties, we have reached the point where we are not honouring treaties we have signed.

[Lucie Lamarche]

The case of the Optional Protocol to the Convention Against Torture is a little baffling. It is rare to see a case that starts out as rumour and then becomes logical, because, we are told, we don't know precisely why some provinces would object, in particular, to the requirements relating to prison inspection. This is a very uncomfortable situation, in terms of democracy, because we don't know. If we know, we might be able to concede to some of the reservations expressed by certain provinces, but we don't know. The confusion defies both logic and Canada's international commitments, and that in itself is a failure and an affront to the promotion of human rights.

On the question of the treaties that have been ratified, the protocols to the International Convention on the Rights of the Child and the Convention itself are good examples. I do not have a magic formula that would instil greater respect for human rights conventions in the Canadian government, but we can say this. Is this not proof that we must give this new tool, the Universal Periodic Review, the complete attention it requires, and do the same in terms of monitoring the treaties that have been ratified? So it is an additional tool, not a substitute tool. As good optimists, we can hope that two oversight mechanisms rather than one will at least facilitate dialogue regarding violations of existing treaties, although the dialogues are different in nature. In the case of the Universal Periodic Review, Canada is in dialogue with the international community of States. In the case of the Convention on the Rights of the Child, for example, the dialogue is with a committee of independent experts. We must therefore look to this new combination as our hope for higher compliance rates.

You are right, Mrs. Thi Lac, when you say that for some time we have not had particularly glowing results in Canada in this regard.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

Do you think this is a question of political power or political will, at this point?

[Lucie Lamarche]

I think we can't separate the political will from the tools available. We are looking at the introduction of a new tool. But the Canadian government's Roadmap cannot disregard compliance with obligations it has agreed to or undertaken by treaty. So we must not lose sight of the monitoring and oversight mechanisms set out in instruments that have been ratified. The idea of ongoing dialogue is not a new requirement, it is a heightened requirement, because even more methods are being made available to States and civil society to ensure that Canada fulfils its obligations.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

You referred to a conference of the provinces, the Quebec nation and the territories, that could be held to develop an ongoing dialogue in order to bring pressure to bear.

Do you think this tool could be used by the provinces, the territories and the Quebec nation to put pressure on the federal government to implement a permanent tool in relation to children's rights?