Subcommittee on International Human Rights Committee on June 16th, 2009

[The Chair, Conservative, Scott Reid]

I call the meeting to order.

This is the 26^th meeting of the Subcommittee on International Human Rights of the Standing Committee on Foreign Affairs and International Development.

Today we are starting a study of human rights commissions. We have two sets of witnesses before us today. First, we have David Langtry, deputy chief commissioner of the Canadian Human Rights Commission. He is accompanied by Sébastien Sigouin, who is director of the policy and international relations division, and Monette Maillet, who is director and senior counsel of the legal advisory services at the Human Rights Commission. They will be followed by Alan Borovoy, from the Canadian Civil Liberties Association.

I just want to alert members from all parties to the obvious time constraints it puts on us within a window of one and a half hours. I'm going to have to be pretty ruthless in keeping our questions and responses short in order to allow both sets of witnesses to be heard from fully. What I propose is that we have a single round of questions, rather than the normal two rounds after each set of witnesses. Even so, it's going to be tight, and I ask for everybody's cooperation.

That being said, I welcome our witnesses.

I would ask, Mr. Langtry, that you please feel free to start. Thank you.

[David Langtry, Deputy Chief Commissioner, Canadian Human Rights Commission]

Thank you, Mr. Chairman.

Good afternoon. I thank the subcommittee for inviting the Canadian Human Rights Commission to participate in your discussion of policies and practices of human rights commissions internationally and in Canada.

I am David Langtry and I am Deputy Chief Commissioner of the Canadian Human Rights Commission, or CHRC. With me today are Monette Maillet, Senior Counsel and Director of Legal Advisory Services, and Sébastien Sigouin, Director of Policy and International Relations.

We welcome this opportunity to provide you with an overview of the role and mandate of the commission and to describe our practices and work both domestically and internationally.

Perhaps the best way for me to explain the role and mandate of the commission is to read an excerpt from section 2 of the Canadian Human Rights Act: “The purpose of this Act is to extend the laws in Canada to give effect...to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have”--without discrimination. This sets out the mandate our commission pursues in all our work in helping to create a Canada with dignity, respect, and equality for all.

The commission itself consists of two full-time members, me and Chief Commissioner Jennifer Lynch, and four part-time members, together with 190 staff. An important aspect of our work is dealing with complaints of discrimination. Most complaints are in the employment context, and about one-third are about discrimination based on disability.

Experience has shown that often the best way to resolve human rights disputes, most of which occur at the local level, on the shop floor or in an office, is to bring the parties together to work out their differences. That is why the CHRC provides a robust system of alternative dispute resolution. ADR is offered at every stage of the process, and it is often successful.

Of course, not all complaints can be resolved in this way. The remaining cases go through the statutory process of investigation and a decision by the commission. About 86% of the time complaints are resolved or closed at the commission. The balance of complaints are referred to the Canadian Human Rights Tribunal, which is a completely independent hearing body, apart from us.

While perhaps best known as a complaints-screening body, the commission fulfills another extremely important function--that is, serving as a catalyst for advances in human rights. We perform an education and outreach function. We work with employers to help them integrate human rights into daily practice and prevent discrimination before it happens. We develop research, policies, and tools, and give advice to Parliament.

In the 30-plus years since its creation, the commission has contributed to making positive changes in Canadian society. Many of you will know of some of the precedent-setting cases that have made a huge difference for communities seeking equality: VIA Rail, which provided accessibility for persons with disabilities who travel on trains; Sangha, which confirmed that discrimination on the basis of over-qualification can be discrimination on the basis of race; Vaid, which confirmed that human rights law applies to the House of Commons; and Multani, which clarified the interplay between human rights and security.

As society and the law evolve, new human rights issues constantly arise and the CHRC contributes to resolving them.

Our act has been amended on several occasions to meet the changing needs of society, such as including sexual orientation as a ground of discrimination, and establishing the responsibility of employers to accommodate, to the point of undue hardship, the special needs of employees resulting from, for example, their religious requirements or disability.

A highlight of 2008 was the repeal of section 67 of the act, the section that excluded matters falling under the Indian Act. The passage of Bill C-21 was a milestone in the development of human rights law in Canada, and the commission applauds the cooperation shown by parliamentarians in working to reach a consensus on the legislation, which finally gives first nations peoples access to the same level of fundamental human rights protection that most Canadians take for granted.

Repeal of this section was just a first step. The commission is now working in close collaboration with first nations organizations to build a human rights system that reflects and respects aboriginal peoples' cultures and traditional laws.

An issue of particular and recent controversy regards section 13 of the act, which deals with hate messages. In response to concerns about section 13, the commission undertook a comprehensive policy review. The results of the review are detailed in the special report to Parliament that was tabled in both Houses last Thursday. As you know, your colleagues on the Standing Committee on Justice and Human Rights have agreed to conduct a study on section 13. We welcome and look forward to having that informed debate.

I would now like to tell you about the international aspect of our work and some recent developments on that front.

In the early 1990s the CHRC chaired an international initiative that led to the adoption in 1993 by the United Nations General Assembly of a set of standards for national human rights institutions. These standards came to be known as the Paris Principles. The Paris Principles serve as the internationally recognized benchmarks to assess the composition, mandate, and performance of a national human rights institution. Since their adoption, the Paris Principles have provided guidance to governments from around the world in establishing national human rights institutions that are independent and pluralistic.

An independent, rigorous, and transparent accreditation process gives substance and credibility to human rights institutions. There are 88 national human rights institutions worldwide that are now accredited in accordance with the Paris Principles, and 65 of these have the highest status, A status, including the Canadian Human Rights Commission. All of these institutions are members of the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights, or the ICC.

In 2007 the CHRC was elected as chair of the ICC for a three-year term. Under our leadership, the ICC has matured significantly as an organization. The ICC is working to provide a role for national institutions in corporate responsibility and has been very effective in promoting the role of national human rights institutions at the United Nations.

At the regional level, the CHRC has played a leading role in the development of the Network of National Human Rights Institutions of the Americas. This network has provided its members with a wide range of capacity-building and information-sharing services, ranging from the role of NHRIs in promoting and protecting the rights of indigenous peoples or the rights of persons with disabilities to human rights and security measures through to education and to prevention of torture. More recently the CHRC has effectively promoted a role for NHRIs at the Organization of American States that is similar to the one they have at the UN.

A reflection of the commission's international work at home has been its participation in the universal periodic review of Canada. It made a submission to the United Nations Human Rights Council to contribute to the first part of the review, which took place in February 2009, and intervened before the council at the conclusion of the review in June.

With this I conclude my remarks. We welcome the opportunity to answer your questions.

[The Chair, Conservative, Scott Reid]

Thank you very much.

We'll start with questions from the Liberal Party.

I believe Mr. Silva will go first.

[Mario Silva, Liberal, Davenport, ON]

Thank you.

We were just trying to figure out who the chair was, because Jennifer Lynch couldn't make it today to the meeting, which is unfortunate. First of all, congratulations on your chairmanship. I think that's great. It's good for Canada as well.

I want to ask two questions in relation to the international scene. One is that we've just had the universal periodic review for Canada. I wanted to know whether you can comment on that and on whether there's a role as well for the commission to play in some of the possible implementation of the periodic review recommendations that came forward.

Number two is the fact that you also mentioned the Organization of American States. Now, the Inter-American Commission on Human Rights is very well known, and very prominent individuals have raised some serious issues of human rights. They also did a credible amount of good work on reports. I think of the report on forced disappearances, for example. I'm wondering whether the commission as well does work similar to that of the Organization of American States and the human rights reports that they do, and whether that is distributed. Their reports are very well distributed, and it's very well respected internationally.

Can you comment on those two issues, please?

[David Langtry]

Yes. Thank you.

I'll deal first with the UPR, and then I would ask to Mr. Sigouin to answer in terms of the Organization of American States, since he is the one who has been doing most of the work with the OAS.

Regarding the UPR process, indeed the Canadian Human Rights Commission welcomed that process, and as chairs of the ICC, we did conduct regional workshops internationally to assist national human rights institutions to participate in that process.

We welcome the opportunity and the fact that all member states would be under the review. As you know, Canada certainly had supported that process. We did provide a submission in February, as I had mentioned the five-page submission. This was not solely by the Canadian Human Rights Commission, but we consulted as well with all of the provinces through the Canadian Association of Statutory Human Rights Agencies. So we engaged with all ten provinces and three territories, as well as with 60 NGOs, in developing our submission. We did that through Rights and Democracy. So we made the submission. As I mentioned, of course, we attended and intervened last week.

We think it is a good process, and certainly I believe our experience is that it opened the door to greater dialogue and engagement with civil society and the government as far as our role in terms of any follow-up work. Yes, we certainly have offered to be part and parcel should we be given the mandate by Parliament to do any kind of follow-up or reporting work that may be in terms of any of Canada's obligations and response to recommendations.

On the OAS, I'll ask Sébastien to respond.

[Sébastien Sigouin, Director, Policy and International Relations Division, Canadian Human Rights Commission]

Thank you very much, Mr. Silva, for your question.

With regard to the Inter-American Commission, you are correct that it's an institution with lots of credibility. In fact, we are hosting next week a delegation of two senior officials from the Inter-American Commission, who are coming to the Canadian commission for three days to learn of our own experience and complaints process learned from our expertise. This is part of a project funded by CIDA.

As you know, the strengthening of the inter-American human rights system is a priority for the Government of Canada. As part of that process, it was felt that the Canadian commission could contribute to this process to the inter-American system by sharing its expertise with the Inter-American Commission.

We are, of course, a different kind of entity from the Inter-American Commission, but we do provide reports on the human rights situation in Canada. Mr. Langtry mentioned the UPR, the universal periodic review. We also provide independent reports through what is called at the UN the treaty reporting process, which is that Canada, as a member of this or that human rights treaty, has to provide periodic reports. As part of that process, we also provide reports to the UN on the specific issue, whether it's discrimination against women or any racial discrimination or any other human rights issue that Canada has adhered to through a treaty.

[Mario Silva, Liberal, Davenport, ON]

Thank you.

Do I have any more time?

[The Chair, Conservative, Scott Reid]

You have one minute and 45 seconds.

I should have mentioned that everybody has seven minutes, but that's with the answers.

[Mario Silva, Liberal, Davenport, ON]

Just on the mechanics of the operations between the commission and the tribunal, is it the tribunal that handles most of the difficult cases and the commission less? If you make a petition, do you have to make it first to the commission, and then go to the tribunal? You can't make it directly to the tribunal, I believe.

[David Langtry]

That's correct. The tribunal hears any cases that are referred to it by the Canadian Human Rights Commission. We do not make a decision on the merits of the case. We are a screening body. So when we receive complaints, we consider them, and we may decide that we will not deal with the case because it may be beyond our jurisdiction, it may be out of time, or there may be alternate proceedings that are available. If we decide to deal with it, then we make a decision to either dismiss it or to refer it to the tribunal for a hearing.

We do not make a finding that discrimination occurred. That is done in the open hearing at the Canadian Human Rights Tribunal, which is separate and apart from us.

[Mario Silva, Liberal, Davenport, ON]

Thank you.

[The Chair, Conservative, Scott Reid]

Thank you.

Monsieur Dorion.

[Jean Dorion, Bloc, Longueuil—Pierre-Boucher, QC]

Mr. Langtry, congratulations on your presentation. It is interesting. You mentioned that the commission has A status accreditation under the Paris Principles.

Are there B status accreditations? Actually, specifically, what are the criteria used to judge the work, the performance, the composition and so on of the various commissions?

[David Langtry]

Yes, thank you for that question.

The A status is, as I mentioned, the highest status. There are 88 of those. We also have B status at the ICC, which are near to being Paris Principles-compliant but don't fully meet each of the requirements in the Paris Principles. They're accorded a B status, which means that they do not have standing at the Human Rights Council. All A-status national human rights institutions have full status to appear and speak to every agenda item at the Human Rights Council. We also have some with C status, and they're basically not Paris Principles-compliant at all.

So an application for accreditation is made by a national institution and it is then referred to the subcommittee on accreditation, which is a subcommittee of the ICC. It considers the application, it is reviewed by the national institutions unit of the Office of the High Commissioner for Human Rights in Geneva, and an analysis is done. Each applicant has to provide material to substantiate its annual reports, its budget, a description of its activities. Field officers of the UN will also provide information and input. The subcommittee on accreditation meets twice a year to consider the applications and reach a decision, a recommendation that is given to the ICC to either accept or reject the recommendations.

The subcommittee consists of one representative of each of the four regions that ICC is broken down into--the Americas, Asia-Pacific, Africa, and Europe. Canada is one of the four members of the subcommittee on accreditation.

[Jean Dorion, Bloc, Longueuil—Pierre-Boucher, QC]

Can you give specific examples of the kinds of criteria used to judge commissions?

[David Langtry]

Basically, the Paris Principles--which we can certainly provide to you--are a set of standards to make sure that a commission is, for example, independent of government, so it's not an arm of government and it can act independently. It has to be national in scope; so the provincial and territorial commissions would not be eligible for accreditation, only the Canadian, as a national organization, would. It must have a broad mandate, rather than a narrow, specific interest. It must be autonomous in terms of its budget and have adequate funding in order to resource it. The appointment process is to be pluralistic, open, transparent, and without undue interference. There are a number of rules like that to ensure that they have a broad enough mandate.

A fundamental requirement is that the commission has to be founded in legislation or in the constitution. There has to be a sound legal framework. So it's not a committee that's simply established by motion; it has to have a legislative base.

[The Chair, Conservative, Scott Reid]

You still have three minutes.

[Jean Dorion, Bloc, Longueuil—Pierre-Boucher, QC]

I will be brief, then, given that there is not a lot of time left.

Among people interested in human rights, there is a whole debate that has economic and social rights on one side and rights of other kinds, such as personal freedom, on the other side.

Can you tell us a little about your own view of things? Can you summarize your thinking on the matter for us?

[David Langtry]

Yes. Interestingly, as you may be aware, all provinces and territories have some degree of social condition, either expressly stated, or an aspect of social condition. The Canadian Human Rights Act does not have a social condition provision in it. In our annual report in 2003, we urged and recommended that social condition be added to our mandate. Of course, the mandate decision is that of Parliament.

Just recently, last year, we conducted a fairly extensive study on social condition. Professor Wayne MacKay was engaged to conduct the research. His recommendation, with a lengthy and well-reasoned report comparing various jurisdictions in Canada, does recommend that the mandate of the commission be expanded to include social condition.

That research is presently being considered by us. We have posted the research on our Internet and we've certainly invited submissions from the public on that. We'll then be making a determination in terms of what, if any, recommendations we might be making to Parliament.

[Jean Dorion, Bloc, Longueuil—Pierre-Boucher, QC]

Thank you very much.

[The Chair, Conservative, Scott Reid]

Thank you, Mr. Dorion.

Mr. Marston, please.

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

Well, as is usual, by the time the first sets of questions are being asked, I have about nine more that are blossoming.

First of all, I want to say congratulations on the work you do. It's important work.

On the UPR front, and when you read the UPR of Canada, a number of countries expressed concern for our reluctance to adopt OPCAT. I wouldn't mind your comments on that. I also would love to have a copy of your presentation on the UPR. I think it's very important.

My first question is, on the UPR evaluation of Canada's human rights record, what were the most significant issues, in your opinion?

[David Langtry]

That's an interesting question. I would have to say that certainly in our submission on the UPR we had highlighted aspects of social equality and social condition, but we had also particularly focused, if I might say, on aboriginal issues. We made specific reference.

By the way, we will be more than pleased to provide you with a copy of our submission.

We noted with regret that Canada had not concurred with or signed onto the United Nations Declaration on the Rights of Indigenous Peoples. As well, we had noted our work in terms of the United Nations Convention on the Rights of Persons With Disabilities.

The aboriginal one is a particular issue for us. I can say that from the Canadian Human Rights Commission the number one priority stated within our commission is our work on the implementation of the repeal of section 67. We've established a national aboriginal office in Winnipeg that is specifically geared towards the implementation of the repeal of section 67.

As you may of course be aware, the transition period for the full implementation of Bill C-21, the act to repeal section 67, is a three-year period. It was June of last year when it passed. There are two more years before it has full application to aboriginal authorities, but it does have immediate effect as against the Government of Canada, so we are receiving complaints, and obviously there may be a significant volume of cases coming in the next two years. That is why it has really been a focus of our activity.

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

I will just go a bit further on that point. None of us can avoid seeing in the media over the last few days stories of Manitoba and the aboriginal communities being hit hard by swine flu. I suspect that as they dig through the causes for that, the overcrowding and some of the issues raised in the UPR will surface.

I'm pleased to hear Mr. McKay's consideration of the fact that the commission should be looking at the social conditions. Our belief, of course, is that part of a human right is not to live in poverty, and there's almost a predetermination of the poverty levels in Canada by the way our system functions. That's going to take a much deeper look, but I have what is a potentially loaded question.

I talked to one of my staff today. He's an American by birth. He came to Canada, which shows an improvement in his judgment. We talked about the absolute freedom of speech in the U.S., and of course in Canada the commission and the tribunal have had the issue of the Maclean's situation and other such things. I'd like your comments on that balance that you try to strike between people's rights in regard to what they perceive as hate literature or hate media and the absolute right of freedom of speech.

[David Langtry]

Thank you. Certainly it has been the position of the commission.

As you know, we did table a special report to Parliament last Thursday, which we're pleased to provide to you as well. It really talked about the balancing, in saying that in virtually all jurisdictions there is a balance. While there is the fundamental right of freedom of expression, that does not trump other fundamental rights. In other words, they are all put on an equal footing. The courts, in interpreting that, have often talked about the need to balance, and when there are competing rights, to ensure that this is there.

As you may be aware, we had engaged Professor Moon to do a study on section 13 as well. Certainly in our special report to Parliament we have recommended that Professor Moon's report as well be given full consideration. On balance, after consideration of Professor Moon's recommendation and our broad consultations with those who wanted to make submissions and our own consideration of it, and having regard for the Supreme Court of Canada's decision in Taylor and Keegstra, as an example in 1990, as well as Parliament's amendment of our act in 2001 as part of the Anti-terrorism Act to specifically include hate on the Internet as being part of our mandate, our report for consideration by Parliament recommends that both regimes be maintained, with some modifications, to clarify the definition of “hate”. It has always been our commission's view that it is only in the extreme cases that the matter should proceed further, and hence a decision in the Maclean's case. As you know, our commission dismissed that complaint, did not send it to tribunal. In fact, there have only been in our existence 17 cases that have been heard by the Canadian Human Rights Tribunal, out of any of those that came before us.

So what we're saying is that we have been adopting the Taylor test in our analysis at the commission level and only sending on those more extreme cases. We have also recommended, to clear any uncertainty, that Parliament amend our act to make it very clear that it's only those very narrow and most extreme cases that should be within our jurisdiction. Therefore, we would also be able to more clearly dismiss those cases that come before us that don't meet that threshold under section 41 of our act, which allows us to fairly quickly make a decision that it's beyond the jurisdiction of the commission, rather than having to go through a full investigation.