(a) no, Canada has not made a declaration recognizing the competence of the committee on the elimination of racial discrimination, as provided for in article 14 of the convention on the elimination of all forms of racial discrimination, CERD; (b) see response to question (a) above; (c) persons alleging discrimination in Canada currently have two other international complaints mechanisms available to them:
(1) as a state party to the international covenant on civil and political rights, CCPR, and its first optional protocol, Canada recognizes the complaint mechanism established thereunder and administered by the human rights committee.
(2) as a member of the Organisation of American States, OAS, Canada is also subject to the American declaration on the rights and duties of man declaration, and to the individual complaint mechanism before the commission regarding the declaration.
In addition, Canada is concerned about the committee’s broad interpretation of article 4 of the CERD. This interpretation is based upon a report commissioned by the committee and adopted in 1983, the Ingles report. This report interprets the requirement in article 4(a) of the CERD to “declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred” to (a) include a prohibition of all ideas based on racial superiority and hatred, and (b) require the imposition of a penalty for the mere act of dissemination, regardless of intent. It is a fundamental principle of Canadian criminal law, as well as the charter, that criminal liability should not be imposed unless someone intends their action.
An interpretation as set out in the Ingles report does not recognize the important balancing that is necessary between the need to protect people from hate speech and the need to also protect the right to freedom of opinion and expression, freedom of peaceful assembly and association, and the right not to be deprived of liberty or security of the person except in accordance with the principles of fundamental justice. Canada supports an interpretation of article 4 that is consistent with all international rights and freedoms as set out in the Universal Declaration of Human Rights. For example, the United Nations human rights committee has on several occasions interpreted article 19 of the International Covenant on Civil and Political Rights as protecting all forms of expression, even hate propaganda. However the human rights committee also held that, as in the Canadian charter, prohibitions of hate propaganda can be justified if certain precise preconditions are met. When restricting freedom of expression we believe it is necessary to be cautious and careful. This is exactly the approach Canadian courts and other international bodies have adopted.