4.1.1 Formal Acceptance

Canada is a party to seven of nine core UN human rights treaties: International Convention on the Elimination of All Forms of Racial Discrimination (cerd),⁵² International Covenant on Civil and Political Rights (ccpr),⁵³ International Covenant on Economic, Social and Cultural Rights (cescr),⁵⁴ Convention on the Elimination of All Forms of Discrimination against Women (cedaw),⁵⁵ Convention on the Rights of the Child (crc),⁵⁶ Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (cat)⁵⁷ and Convention on the Rights of Persons with Disabilities (crpd).⁵⁸ In addition, Canada has adopted all substantive Optional Protocols of the UN human rights system: the Second Optional Protocol to ccpr (op2-ccpr) (2005), the Optional Protocol to the crc on the Involvement of Children in armed conflict (2000), and the Optional Protocol to crc on the Sale of Children, Child Prostitution and Child Pornography (op-crc-sc) (2005). However, Canada is not a party to the International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families (cmw), nor to the Intentional Convention for the Protection of All Persons from Enforced Disappearance (ced).⁵⁹

Canada recognises the competence of four treaty bodies (ccpr,⁶⁰ cedaw,⁶¹ cat⁶² and crpd)⁶³ to accept and review individual complaints.⁶⁴ However, Canada has not adopted the optional mechanism for individual communications under cescr (op-cescr) or the crc (op-crc).⁶⁵ In Canada’s 6th report for the upr (2010), the federal government stated that it would need to ensure that F-P-T laws, policies and programmes meet the obligations of op-cat before deciding on whether to join the treaty.⁶⁶

Decisions regarding the formal acceptance of the core human rights treaties are an executive prerogative and much of the deliberation has taken place at the ccohr behind closed doors.⁶⁷ For this reason, the motivations behind Canada’s decisions to ratify the core treaties are not well-documented. Dominique Clément has argued that Canada’s participation in treaty negotiation and ratification was part of the federal government’s strategy to strengthen the Canadian confederation.⁶⁸ The federal government developed the ccohr to consult provinces and territories on the implementation of international human rights obligations that would affect provincial and territorial laws and powers.⁶⁹

Non-ratification of cmw and ced: Canada is not a party to the International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families (cmw) or the Intentional Convention of the Protection of All Persons from Enforced Disappearance (ced).⁷⁰

A 2006 report commissioned by the United Nations Educational, Scientific and Cultural Organisation (unesco) identified possible reasons for Canada’s objection to cmw.⁷¹ At the time, the Canadian government’s general stance was that migrant management was an area that should remain entirely within the purview of states. In Canada’s view the rationale behind cmw, which seeks to harmonise the ‘attitudes of states through the acceptance of basic principles concerning the treatment of migrant workers’, were inconsistent with its immigration policies, which favour priority access to migrants who are highly educated and skilled in areas of demand.⁷² There does not seem to be any clear change to Canada’s migration policy and treatment of migrants as a result of the existence and development of this treaty. While temporary labour migrants make important contributions to Canadian society and pay taxes, governments in Canada do not fund many basic services for these workers.⁷³ As a result, many temporary workers lack basic access to health and other social services to which they would have been entitled under the treaty.

Canada officially stated during the 2009 upr that it would not become a party to ced.⁷⁴ Canadian law professor Amir Attaran argued that Canada’s reported involvement in cases of enforced disappearance in Afghanistan may be a possible reason for its refusal to join ced.⁷⁵ The disappearance of indigenous women and girls is of ongoing concern in Canada.⁷⁶ Despite not ratifying ced, Canada has supported Asia’s first anti-disappearance law.⁷⁷ Moreover, the Chair-Rapporteur of the Working Group on Enforced or Involuntary Disappearance, Mr Bernard Duhaime, is a Canadian national.⁷⁸

4.1.2 Reservations Entered

Canada has entered three reservations with respect to provisions of crc and crpd. Canada maintains the right to not apply the provisions of article 21 of crc regarding permission to adopt a child ‘to the extent that they may be inconsistent with customary forms of care among aboriginal peoples in Canada’.⁷⁹ Canada also accepts the general principles of article 37(c) of crc regarding the dignified treatment of children, particularly in cases of detention, but ‘reserves the right not to detain children separately from adults where this is not appropriate or feasible’.⁸⁰ Moreover, Canada’s reservation with respect to article 12 of crpd preserves the right to use decision making that is not subject to regular review by an independent authority where such decision making would otherwise be subject to review.⁸¹ In the first and latest cos (2017) for crpd, the Committee expressed concern that Canada’s reservation to article 12 of crpd may contradict the object and purpose of the Convention.⁸²

4.1.3 General Attitude of State towards UN Treaty System

Canada regards the UN treaty bodies as legitimate authorities on human rights issues and is responsive to communications, recommendations and inquiries they release, as these processes are covered by mainstream media and affect the domestic and international perception of the country and the government of the day.

4.1.4 Level of Awareness

The level of awareness of the UN treaty system varies across the different actors in Canadian society. Knowledge of the treaties and the work of the treaty bodies among public servants will depend on whether their work requires experience in, or exposure to, international human rights law. Members of standing committees on human rights (for instance, the Standing Senate Committee on Human Rights) will generally have a very strong command of international human rights law.⁸³ There is little mention of the core UN human rights treaties in many of the current government’s priority policies and programmes. For example the Trudeau administration (2015-) has made numerous public statements regarding his government’s commitment to women’s rights and is behind initiatives such as establishing gender parity in the executive branch of government.⁸⁴ His government also launched Canada’s first national action plan on gender violence and announced an investment of approximately 3,8 billion by the G7 to support education for women and girls in conflict areas at the 2017 G7 Summit in Canada.⁸⁵ However there is no mention of cedaw in such announcements, in the Parliamentary record, or in media interviews with the Prime Minister and other senior federal officials. In fact, the cedaw cos regarding Canada’s 8th and 9th periodic review (2016) identified the Convention’s lack of visibility in Canada as a major issue.⁸⁶ Public bodies may not see their work as involving the implementation of Canada’s international human rights obligations, especially when the rights in question are thought to enjoy full protection under the Charter.

ngos and civil society: Awareness and the use of the treaties among ngos and civil society largely depend on the scope of their mandate and their target stakeholders. Examples of ngos interacting directly with the treaties include the Canadian Coalition for the Rights of Children (ccrc), which has established a monitoring mechanism for Canada’s compliance with the crc and endeavours to be an active participant in the upcoming 5th and 6th periodic review of Canada.⁸⁷ Generally, the treaties have been used by ngos in parliamentary hearings, including before the Standing Committee on Human Rights, as well as in letters, briefs, and petitions to federal cabinet ministers and parliamentarians. Some treaties feature prominently in the advocacy and outreach efforts of some ngos. This is particularly the case for the relatively recent crpd. For example, the Council of Canadians with Disabilities has produced a range of thorough and accessible articles, guidebooks, and other materials on the substantive aspects of crpd.⁸⁸ These materials discuss Canada’s accession to crpd⁸⁹ and op-crpd,⁹⁰ provide guidance on how Canada can implement crpd by involving the disability community at various steps in the process,⁹¹ and report quick facts on the crpd for the general public.⁹² The treaty has also been used in numerous ngo campaigns for Persons with Disabilities Day on 3 December.⁹³ ngos have also used the treaty in litigation before tribunals and courts. However, given the limited likelihood of making a successful legal argument on the basis of the core human rights treaties, they are more likely to be invoked for advocacy and legal reform purposes than as part of litigation strategies.

Legal community: Awareness and the use of the core treaties and protocols appear to be localised among lawyers with expertise in international human rights law. International human rights law is taught at all 24 law faculties in Canada but is currently a required course only at one law faculty (the University of Moncton). Dedicated undergraduate programmes in human rights are offered at St Thomas University in New Brunswick and at the University of Winnipeg in Manitoba.⁹⁴

Media: Coverage of the UN treaty system is typically ramped up during a review of Canada and is featured on major Canadian media outlets such as cbc/Radio-Canada, Le Devoir, The Globe and Mail, and Torstar. These media reports will often highlight areas where Canada needs to improve based on recommendations, inquiries, or communications issued by the treaty body, particularly when they relate to known and ongoing issues in Canadian society. For example, domestic and foreign media have widely reported on the cedaw Cttee’s 2015 report for Canada, which calls for a national inquiry into the issue of missing and murdered indigenous women and girls in Canada.⁹⁵ This report and the Committee’s work more generally have been mentioned by the media in its coverage of the tragic cases of Tina Fontaine⁹⁶ and Cindy Gladue,⁹⁷ among others. The media also provides focused analysis and critical commentary on specific law and policy issues related to Canada’s treaty performance. For example, media-driven discussions on racism in Canada occasionally mention cerd and provide readers with statistical data for context, such as detailed statistics on hate crime, while identifying solutions for different levels of government to take to meet the demands of the treaty.⁹⁸ The media will also occasionally feature stories on civil society organisations and community leaders that are invited to attend treaty body sessions for Canada’s periodic review. However, reporters occasionally make errors in covering UN review mechanisms. For example, they might confuse the HRCttee with the Human Rights Council, particularly its special procedures, or reveal gaps in the understanding of the difference between the High Commissioner’s technical assistance, political, and expert bodies.

General public: The general public is aware of the existence of some of the core treaties but there is low awareness of the specialised mandate of the treaty bodies and conflicting views about whether ratified treaties legally bind Canada. Popular media certainly helps in engaging the public’s interest in the UN human rights system, which may enhance the indirect or symbolic impact of the treaties on Canadian society. However, media reports regarding Canada’s review before a treaty body seldom provide background information that would help the public contextualise the treaty body’s work within the framework of the UN human rights system. For example, a 2015 cbc report⁹⁹ covered a HRCttee hearing regarding ccpr and alleged human rights violations by Canada-based resource companies without drawing the link between ccpr and the HRCttee to point out the Committee’s specialised mandate in monitoring the treaty. Nevertheless, there are particular thematic initiatives by the government to increase awareness and knowledge of Canada’s human rights treaty obligations and the work of the treaty bodies. The federal government has funded Cape Breton University to implement a high school level children’s curriculum focused on teaching children’s rights and crc through art.¹⁰⁰ The New Brunswick Child and Youth Advocate’s work offer an annual summer course on crc in conjunction with the University of Moncton.¹⁰¹ Moreover, the opening of the Canadian Museum for Human Rights in 2014 may indirectly spur greater public awareness of the UN treaty system.

Local researchers citing the treaties in their work: Mentions of the core treaties by local researchers vary considerably by treaty. ccpr appears to be cited more than any other treaty.¹⁰² By contrast, to our knowledge, there are three works by local researchers dealing exclusively with cescr,¹⁰³ three others that focus in part on cescr,¹⁰⁴ and one that deals exclusively with cerd.¹⁰⁵ Media reports occasionally cite local researchers who are able to provide views on Canada and the human rights treaties and, in some cases, researchers write media features to update the public on the outcome of the communications and actions by treaty bodies.

4.1.5 State Reporting

Reporting obligations: As of 30 June 2019, Canada has submitted 51 reports for periodic review before the treaty bodies, including reports for the optional protocols op-crc-ac and op-crc-sc. Canada has only submitted two periodic review reports on time, both for cerd. Canada is, on average, one year and five months late in submitting its reports for review. Canada’s tardiest submission was their tenth report to cerd, which was submitted five years and three months late. While Canada currently has four reports overdue, it has never failed to submit a report to a treaty body for periodic review.¹⁰⁶

The situation regarding tardy submissions has improved in the case of cerd: Canada’s most recent report (13th report) was only four months late, compared to its 12th (one year and one month late) and 10th report (five years and three months late). The situation regarding submissions for cedaw has become progressively worse: Canada’s 1st report was five months late and its 3rd, 4th, 5th, and 6th reports were late by seven months, eight months, two years and two months, and three years and six months, respectively. The reporting statistics for other treaties have either been too inconsistent to outline a clear trend or, in the case of crpd, op-crc-ac and op-crc-sc, there is too little data available with only one report submitted for each treaty.

Preparation of reports to UN treaty bodies: Canada’s reports to the UN treaty bodies are prepared by Canadian Heritage in collaboration with the provinces and territories.¹⁰⁷ Canadian Heritage receives technical assistance from the Department of Justice, Global Affairs Canada, Employment and Social Development Canada, and Statistics Canada.¹⁰⁸ This is a somewhat unusual setup internationally, given the primacy of the role of justice or foreign ministries in this process.

Dissemination of reports: Global Affairs Canada is primarily responsible for presenting Canada’s reports for periodic review to the UN.¹⁰⁹

nhri reports under treaties: The Canadian Human Rights Commission (chrc) is invited by the Canadian government to provide input on reports and in fact contributed to Canada’s reports for periodic review under cerd, ccpr, cescr, cat and crpd.¹¹⁰

Alternative reports by ngos and csos: ngos and civil society organisations may be invited by the federal government to take part in the preparation of Canada’s reports.¹¹¹ However, these organisations typically prefer to submit independent alternative reports.

Alternative reports for cerd addressed the issues of systemic discrimination against minorities and indigenous peoples; racial profiling by police and other figures of authority; immigration policies and practices that are contrary to the treaty; and the overrepresentation of certain minorities and indigenous people and in prisons.

Key themes and topics covered in alternative reports to the HRCttee include the incomplete implementation of the treaty at the domestic level; violence and discrimination against (indigenous) women and children; torture in the process of intelligence gathering; the use of solitary confinement; refugee and migrant rights; 2slgbtqqia rights; deportation to torture; indefinite detention and detention of children; corporate accountability for human rights violations; and a shrinking space for civil society advocacy and dissent.

Alternative reports to cescr cover issues regarding the full domestic legal implementation of cescr; the defunding of programmes promoting economic, social, and cultural rights; restrictions on the political activities of charities through the Income Tax Act; the participation of poor people in social and political life; violence against women and indigenous peoples; the lack of a living minimum wage, decent and stable employment and pay equity; measures to deny refugees access to social supports; health care for undocumented migrants; the right to housing; the right to food; and the right to health.

Core issues discussed in alternative reports to the cedaw Cttee include violence against (indigenous) women and girls; the disproportionate number of (indigenous) women in maximum security prisons; the rights of sex workers; the gender wage gap; the economic empowerment of women; and discrimination at the intersection of race, economic, and legal status.

Key themes and topics covered in alternative reports to the cat Cttee include the lack of media coverage on the use of solitary confinement and national security measures; the greater risk of indigenous people being subjected to deathly violence by the state; and the non-ratification of op-cat.

Alternative reports to the crpd Cttee feature several joint submission and frame core issues in relation to provisions of crpd, the Canadian Charter of Rights and Freedoms, and other relevant domestic and international instruments. The alternative reports touch on several key issues, including the lack of incorporation of crpd into domestic law; intersectional discrimination (article 5 of crpd); involuntary detentions in psychiatric institutions; sexual assault of pwds; unemployment or precarious employment and its disproportionate effect on pwds; and issues at the intersection of disability and medical assistance in dying (MAiD).

There are no submissions to the crc Cttee available in the UN treaty body database for the time period of this study.

4.1.6 Domestic Implementation Process

Jurisdiction over matters covered by the core treaties and the responsibility for implementing cos and treaty body recommendations is divided between the federal, provincial, and territorial governments.¹¹² Canadian Heritage coordinates implementation efforts between these different levels of government. The federal government will consult and cooperate with other levels of government in cases where the implementation of cos and treaty body recommendations falls within provincial or territorial jurisdiction. However, there is no formal mechanism to monitor human rights implementation across levels of government or force compliance.

4.1.7 Treaty Body Membership

Candidates are nominated for treaty body membership through Global Affairs Canada. The nomination of a candidate is a ministerial decision.

Canada has nominated one member to cerd, Mr Ronald St John MacDonald, who was elected to sit on the Committee from 19 January 1972 to 19 January 1976.¹¹³ No other Canadian has been elected since.¹¹⁴ Given Canada’s minimal presence on the Committee throughout its history, it is unlikely that membership has had a notable impact on the role of the treaty at the domestic level.

Four individuals have been elected for membership on the HRCttee. Mr Walter Tarnopolsky was elected to serve on the HRCttee from 1976 to 1983. Ms Gisèle Côté-Harper was elected to serve on the HRCttee from 1983 to 1984.¹¹⁵ She was re-nominated but not re-elected for membership. Mr Maxwell Yalden was elected to serve on the HRCttee in 1996 and remained a member until 2006.¹¹⁶ In March 2016 Ms Marcia VJ Kran was elected to serve on the HRCttee.¹¹⁷ Ms Kran is the first Canadian member of the HRCttee in 10 years. She was re-elected to serve on the HRCttee in 2020.¹¹⁸ Canada’s participation in the treaty body has had a notable impact on the role of the treaty at the domestic level. For example, the ccpr may have influenced Mr Tarnopolsky contributions to the drafting of the Canadian Charter.¹¹⁹

One Canadian, Ms Marie Caron, served as a member of the cedaw Cttee from 1982 to 1988 but was not re-nominated. An alternative report submitted to the Committee in 1997 raised concerns about the fact that Canada had not nominated a woman to any treaty body for several years.¹²⁰ From 2008 to present, Canada has not nominated anyone to the cedaw Cttee.¹²¹ The general lack of initiative to nominate a candidate for cedaw Cttee membership undermines the Trudeau government’s (2015-) official position that women’s human rights are a special focus for his administration.

Professor Peter Thomas Burns was elected to serve as a member of the cat Cttee in 1987, was made Chairperson in 1998, and held that position until 1999.¹²² To date, no Canadian has been elected as a member on cescr or the crc Cttee,¹²³ and no Canadian has been elected or nominated to the crpd Cttee.¹²⁴ A Canadian national, Mr Bernard Duhaime, is the current Chair-Rapporteur (2014-) of the ced Cttee.

4.2.1 Incorporation and Reliance by Legislature and Executive

The executive branch of government possesses the legal authority to negotiate, sign, and ratify treaties. Given that Canada has a dualist legal order, treaties ratified by the executive require implementing legislation before they can be considered to be part of domestic law and applied by national courts as such. Canada has not directly incorporated into its domestic law any of the core UN human rights treaties that it has joined. Moreover, ‘there is no formal or public process in Canada that is dedicated to following up on the observations, findings, and recommendations of these bodies with respect to Canada’s human rights performance’.¹²⁵ Canada’s general position is that its domestic laws already provide effect to the obligations of the treaty and thus do not require dedicated legislation for their implementation.¹²⁶ In reality, what results is a reliance on an arguably incomplete patchwork of domestic legislation giving partial effect to Canada’s human rights treaty obligations.

4.2.2 Reliance by Judiciary

Given that human rights treaties are not directly incorporated into Canadian law, the treaties generally have no direct application or legal effect before a Canadian court. However, the Supreme Court of Canada has held and reaffirmed that the Canadian Charter of Rights and Freedoms ‘should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified’.¹²⁷

4.2.3 Impact on and through Non-state Actors

Legal community: A probable reason why we see relatively little explicit treatment of the core human rights treaties in Canadian decisions is because they cannot give rise to a cause of action per se in Canada. Therefore, law practitioners are more likely to rely on the Charter and other relevant domestic human rights instruments to make a legal claim in court.

ngos and civil society: Well-established human rights ngos have a high awareness of the core treaties and the capacity to undertake information-sharing sessions with other organisations in their collaborations with treaty bodies. The core treaties (most often ccpr) have been used by ngos in parliamentary hearings, as well as in letters, briefs, and petitions to federal cabinet ministers and other parliamentarians. ngos have used the treaties in litigation before tribunals and courts but the most consistent use of the core treaties is through alternative reporting to the UN treaty bodies in preparation for Canada’s periodic review or through knowledge sharing and other collaborations with other civil society actors. Alternative reports sometimes include the authoring organisation’s dialogue with federal, provincial or territorial governments regarding issues raised, and some reports will also recommend questions for the treaty body to pose to the Canadian delegation.

4.2.4 Impact of State Reporting

Generally, it is difficult to assess whether Canada has effectively implemented the cos because of serious, cross-cutting issues tied to knowledge management and a lack of self-critical assessment in Canada’s reports. Canada’s reports tend to identify initiatives that purport to fulfil Canada’s treaty obligations, often without indicating how these initiatives will be implemented or whether past initiatives have been implemented and adequately monitored. The result is a series of reports that detail government initiatives without conducting a retrospective analysis of whether the overall situation is ameliorating, has stayed the same, or is becoming worse.

Treaty bodies have also noted persistent and serious issues with Canada’s implementation of recommendations made in the cos. One recommendation that is consistently disregarded is the need for Canada to legislatively implement its human rights obligations under the treaties. There are also great difficulties with monitoring implementation of cos because there are relatively few state follow-ups to cos. Given that there is no streamlined and dedicated mechanism for monitoring the implementation of recommendations contained in cos, one of the few ways to monitor Canada by way of cos is by looking for recurring or repeat issues, which could signal that those have not been (fully) addressed.

4.2.5 Impact of Individual Communications

Canada has accepted the complaints procedures of ccpr, cat and cedaw. The relevant untbs made a total of 38 findings of violation against Canada, 28 of ccpr, 9 of cat and one of cedaw. All but nine of these findings (8 of ccpr and one of cat) were adopted after 30 June 1999. There is very little information available that would allow us to assess how Canada generally responds to the views of treaty bodies in communications, given that there are only two follow-ups to communications recorded and they are under ccpr.

Canada’s legal system does not give legal effect to the treaty bodies’ communications because none of the core treaties have been directly incorporated into domestic law. Moreover, the social and political effect of the treaty bodies’ communications is weakened by the lack of a ‘formal and public process’ at the domestic level for follow-up on communications, as well as cos, early warning measures and urgent procedures, inquiries, and other findings and recommendations of the treaty bodies.¹²⁸ Nevertheless, Canada’s policy is to respect decisions arising from communications, as they go hand-in-hand with Canada’s treaty obligations.¹²⁹

Moreover, while the federal government represents Canada on the international stage, under the constitution of Canada, it is the responsibility of provincial governments to implement treaty obligations that fall under the exclusive powers of provincial legislatures.¹³⁰ Problems arise when provincial laws, policies, programs or actions put Canada in a situation of non-compliance because there is no clear mechanism to compel a province to honour Canada’s human rights treaty commitments.¹³¹

4.2.6 Impact of cerd Early Warning Measures

Past cerd early warning measures have alerted Canada to the need to engage in meaningful consultation with indigenous peoples where resource development projects affect aboriginal and indigenous treaty rights.¹³²

4.2.7 Impact of Inquiries

Canada allows the cedaw Cttee to undertake inquiries pursuant to articles 8 and 9(2) of op-cedaw. The Committee launched an inquiry into the issue of missing and murdered indigenous women and girls (mmiwg) in Canada in 2012.¹³³ While Canada’s initiative to establish a national inquiry on this issue was viewed by the cedaw Cttee as a positive step, the cedaw Cttee noted with concern that Canada had not put forward a formal plan to implement 37 other recommendations stemming from the Committee’s inquiry.¹³⁴

5.1.1 Incorporation and Reliance by Organs of State

Treaty incorporation into domestic law and policy: Canada’s reports to the cerd Cttee cover laws and programmes intended to address racial discrimination, advance substantive equality, improve the conditions of marginalised individuals and groups, and give legal effect to the treaty. The Canadian Multiculturalism Act directly references cerd in the Preamble.¹³⁵ The Act recognises multiculturalism as a fundamental tenet of Canadian society.¹³⁶ Article 4 cerd is reflected in amendments to the Criminal Code that address hate propaganda offences and aim to combat racial violence.¹³⁷ The Canadian Human Rights Act (1977) prohibits racial discrimination at any stage of the employment cycle or in the provision of government or private goods and services under federal jurisdiction.¹³⁸ Additionally, the Employment Equity Act requires federally regulated entities to advance employment policies and practices that increase the representation of four designated groups: women, persons with disabilities, indigenous peoples, and visible minorities.¹³⁹ The Federal Contractors Programme is intended to provide equal employment opportunities to the four designated groups and applies to employers with 100 employees or more that have been granted a federal contract of $1 million or more and are provincially regulated.¹⁴⁰ The Legislated Employment Equity Programme requires federally regulated entities to report annually on the number of individuals from the four designated groups in their workplace and the steps they have taken to achieve more equitable representation.¹⁴¹ Notably, cerd was not referenced in Canada’s or Nova Scotia’s current anti-racism strategies or Ontario’s Anti-Racism Act.¹⁴²

Allocation of budget in light of the treaty requirements: Canada’s 21st and 22nd reports to cerd cover investments into programmes at the federal and provincial levels targeting discrimination and diversity as well as reparations for injustices linked to systemic racism.¹⁴³ In 2015 Ontario invested $752 800 over three years in an initiative to reduce the dropout rate of Somali youth in Toronto high schools.¹⁴⁴ In 2012 British Columbia introduced the Aboriginal Post-Secondary Education and Training Policy Framework and Action Plan to increase the number of degrees or certificates awarded to indigenous learners by 75 per cent by 2020–2021.¹⁴⁵ The plan includes $25,1 million in funding from 2012 for supporting education and career advancement initiatives between indigenous communities and public post-secondary institutions; $4 million in annual funding to eleven public post-secondary institutions to put in place an Aboriginal Services Plans for Indigenous learners; and a $4,3 million contribution starting in 2012 to support indigenous students experiencing an immediate financial need.

Québec has also implemented measures to close the gap in levels of education between indigenous and non-indigenous students.¹⁴⁶ From 2012–2016, $125 000 per year was allocated to indigenous friendship centres to assist Quebec students who are indigenous and living off-reserve.

The federal government is working to make reparations for past injustices surrounding the legacy of the Indian residential school system through the Indian Residential Schools Settlement Agreement (2006).¹⁴⁷ As of December 2015, Canada has paid over $1,62 billion in reparations (Common Experience Payments) to 79 302 recipients.

Canada’s 2018 endorsement of the UN International Decade for People of African Descent (2015–2024) was backed by a cad 214 million investment in the 2018 federal budget for ‘initiatives designed to remove racial barriers, promote gender equality, combat homo-and trans-phobia and enhance the quality of life of black Canadians’.¹⁴⁸

5.1.2 Reliance on Treaty by Domestic Courts

cerd has received explicit treatment in three milestone Supreme Court of Canada cases: R v Keegstra,¹⁴⁹ Canada (Human Rights Commission) v Taylor¹⁵⁰ and R v Zundel.¹⁵¹ In R v Keegstra the Supreme Court considered the provisions of cerd in interpreting the scope of section 2(b) (freedom of expression) of the Charter. The Court found that the protection provided to freedom of expression by cerd article 5(viii), interpreted in conjunction with article 2, does not cover expression advocating racial or religious hatred.¹⁵² In Canada v Taylor cerd is mentioned as evidence that the international community’s commitment to eliminating discrimination ‘extends to the prohibition of the dissemination of ideas based on religious or racial superiority’.¹⁵³ In R v Zundel, the Court found that article 4 of cerd emphasized the goal of ‘preventing the harm caused by calculated falsehoods which are likely to injure the public interest in racial and social tolerance’, covered by the now-repealed section 181 of the Criminal Code.¹⁵⁴

5.1.3 Impact on and through Non-state Actors and Independent State Institutions

ngos and civil society: ngos and civil society in Canada have used cerd in innovative and informative ways that take advantage of the reach of social media. Organisations that work on equality, diversity, and inclusion issues, such as the National Women’s Association of Canada (nwac) and the Ontario Council of Agencies Serving Immigrants (ocasi), share the treaty body’s findings and reports with the public across social media platforms. Organisations also often solicit support from other civil society groups to conduct knowledge sharing for the periodic review process. These organisations also use cerd treaty body reports and cos as a benchmark to assess Canada’s performance under the treaty, make direct demands, and, where appropriate, bring shame on different levels of government for their lack of progress.¹⁵⁵ Overall, Canadian civil society is generally well organised and systematic in applying pressure at the international and domestic levels on issues related to racial discrimination in Canada.¹⁵⁶

Academics: To our knowledge, only one article by a local researcher dealt exclusively with the treaty.¹⁵⁷

National human rights institutions: The Canadian Human Rights Commission (chrc) has made two submissions to cerd.¹⁵⁸

5.1.4 State Reporting and Its Impact

Pertinent issues in cos: The cos for the combined 21st to 23rd periodic reports of Canada pointed to unresolved issues from previous state reports and addressed growing concerns regarding Canada’s overall performance in meeting the obligations of cerd.¹⁵⁹ The cerd Cttee reiterated its concern from the 12th report regarding the lack of comprehensive data on the ethnic composition of Canada’s population and the representation of minority groups in political life in Canada.¹⁶⁰ This has prevented the Committee from properly evaluating the attainment of civil, political, social, and cultural rights in Canada by minority groups.

The cerd Cttee also recalled its General Recommendation (No 23 (1997)) on the rights of indigenous peoples and restated its previous recommendation that Canada suspend all permits for the Site C dam in British Columbia.¹⁶¹ It also urged Canada to undertake a full review of the project in cooperation with indigenous peoples to ensure that developers seek free, prior and informed consent from indigenous peoples affected, respect indigenous treaty obligations in the course of development, and identify alternatives to the destruction of indigenous land that may result from the project.¹⁶²

Regarding developing issues, the cerd Cttee also pointed to a lack of a renewed national plan against racism since the previous plan ended in 2010, and a lack of an anti-racism legal framework to meet the requirements of article 4 of cerd.¹⁶³ Lastly, the Committee also called on Canada to address racial profiling by police and security agents, specifically through amendments to the Anti-Terrorism Act and other relevant laws.¹⁶⁴

Canada’s engagement with cos: Regarding the possibility of racial profiling in immigration detention, Canada states that its policy is to use detention ‘only as a measure of last resort, in limited prescribed circumstances and only after alternatives to detention have been considered’.¹⁶⁵ The government also stated that access to periodic review of detention and other safeguards protected detainees from arbitrary detention through the periodic review of their detention.¹⁶⁶ Canada deferred responding to the Committee’s recommendations for follow-up on the Site C dam project, explaining that it would instead address this concern in its response to a cerd Early Warning Urgent Action request.¹⁶⁷

5.1.5 Individual Communications and Their Impact

There are no individual communications and no inquiries lodged under cerd. While Canada does not recognise the competence of cerd treaty body to accept and review individual complaints, there have been several cerd early warning urgency actions (ewua) that would be ripe for submission as individual communications were Canada to recognise the cerd complaint mechanism. cerd ewua reports cover development projects that are being carried out without meaningful consultation with the indigenous peoples affected. This activity could potentially undermine pre-existing aboriginal and treaty rights.

5.1.6 Impact of Other Measures

The cerd early warning measures have been used a total of seven times (15 August 2008; 13 March 2009; 27 May 2016; 3 October 2016; 13 December 2016; 17 May 2017; 13 December 2019). cerd early warning measures were exercised by the Committee to alert Canada to the following:

1. –the continuance of the Site C dam project and the approval of the Trans Mountain Pipeline Extension project and the Coastal Gas Link pipeline without free, prior and informed consent by indigenous peoples affected (2019);¹⁶⁸
2. –alleged violations of the rights of indigenous women in the village of Lote Ocho in Guatemala by employees of a Canada-based resource company (2016);¹⁶⁹
3. –the undermining of the indigenous land rights of the Secwepemc Nation and the St’át’imc Nation in British Columbia (2016, 2017);¹⁷⁰
4. –absence of certainty regarding the land rights over Lubikon Lake Nation territory and the North Central Corridor Pipeline extending through the territory (2016, 2008);¹⁷¹
5. –the expansion of development projects in indigenous territories without informed consent and the extinguishing of traditional land rights in favour of private interests (2009).¹⁷²

5.1.7 Brief Conclusion

Canada’s reports and follow-up submissions to the cos continue to avoid addressing ongoing issues that impede the Committee’s work across reporting cycles, such as the lack of comprehensive statistics on the country’s ethnic composition. Moreover, despite Canada endorsing the UN Declaration on the Rights of Indigenous Peoples (undrip), the free, informed, and prior consent of indigenous peoples remains an unresolved and contentious issue in the country. At the time of writing, only British Columbia has passed legislation to implement the Declaration.¹⁷³

5.2.1 Incorporation and Reliance by Organs of State

Incorporation of treaty into domestic law: In April 2001 the federal government established the Standing Senate Committee on Human Rights to identify measures needed to fully implement its obligations under ccpr after the HRCttee expressed concern that there may be gaps between the protection of civil and political rights under the Charter and relevant federal, provincial, and territorial (F-P-T) laws.¹⁷⁴ Following the Senate Committee’s first report (13 December 2001), a federal Deputy Ministers Committee (October 2002) was established for Canadian governments to more effectively coordinate and share in the responsibility for implementing Canada’s international human rights obligations.¹⁷⁵ Since then, a Senior Officials Committee on Human Rights (sochr) and the Forum of Ministers on Human Rights (fmhr) have also been established as part of this effort (see part 1).¹⁷⁶ Despite its incomplete incorporation into domestic law, ccpr was considered in the drafting of the Charter.¹⁷⁷ ccpr has also had a stated influence on the Canadian Multiculturalism Act; the Preamble to the Act references Canada’s international obligations under ccpr.

Policies related to the treaty: Policies related to the treaty were mandated by the federal government as a response to the HRCttee’s recommendations following the country’s 5th¹⁷⁸ and 6th¹⁷⁹ (latest) periodic reports to the Committee. The HRCttee paid particular attention to article 2 of ccpr (equal rights and effective remedies) and recommended that human rights legislation be amended to guarantee access to an effective remedy in all discrimination cases.¹⁸⁰ In response the Canadian Human Rights Commission (chrc) introduced process reforms in May 2003 aimed at reducing its chronic backlog of cases.¹⁸¹ These reforms include using alternative dispute resolution in all stages of the complaints process and referring select cases to the Canadian Human Rights Tribunal.¹⁸²

5.2.2 Reliance on the Treaty by Domestic Courts

In Canadian Foundation for Children, Youth and the Law v Canada the Supreme Court of Canada engaged with the Preamble and article 7 of ccpr, and the views expressed by the HRCttee, to find that the ccpr does not require state parties to categorically ban corporal punishment of children, since it permits ‘corrective force that is reasonable’.¹⁸³

The extradition case, USA v Burns, references ccpr but ultimately finds that the Charter requires Canada to seek assurances that the death penalty will not be imposed by the country requesting extradition ‘in all but exceptional cases’.¹⁸⁴ Similarly, the Court in Suresh v Canada found that deportation to torture is prohibited – barring exceptional cases – by article 7 of ccpr (prohibition on torture), but ultimately relied on section 7 of the Charter (life, liberty and security of the person) in arriving at the decision.¹⁸⁵ Also in this case, the HRCttee’s General Comment 20 was used to inform the Court’s interpretation of the principles of fundamental justice in section 7 of the Charter.¹⁸⁶

5.2.3 Impact on and through Non-state Actors

ngos and civil society: ngos generally cite ccpr in their alternative reports to the HRCttee for their periodic review of Canada.¹⁸⁷

Academics: ccpr appears to be cited more than any other major human rights treaty in Canadian textbooks and journal articles.¹⁸⁸ This may be due to the particular emphasis on civil and political rights in Canada, and the fact that the individual complaints mechanism under the Optional Protocol (op1-ccpr) has been well utilised with respect to Canada.

5.2.4 State Reporting and Its Impact

Pertinent issues in Concluding Observation recommendations: The cos to Canada’s 6th report expressed concern in several areas. The HRCttee recommended that Canada consult indigenous people to seek their free, prior and informed consent whenever government resource projects may affect aboriginal and indigenous treaty rights.¹⁸⁹ The HRCttee also expressed concern regarding the alleged human rights abuses committed by Canada-based resource companies operating abroad and recommended the establishment of an independent mechanism with the capacity to undertake complaints about such abuses.¹⁹⁰ The HRCttee also expressed concern about the gender pay gap in Canada, which disproportionately affects low-income women; the differing or non-existent pay equity legislation at the F-P-T levels; the underrepresentation of women in leadership positions in the public and private sectors; and the failure to guarantee equal employment and advancements opportunities within the private sector.¹⁹¹ The HRCttee noted with concern the conditions in Canada’s correctional facilities and, in particular, the high level of overcrowding; the use of segregation for extended periods; reports of suicides in corrections facilities and insufficient support for inmates with mental-health issues.¹⁹² Lastly, the Committee expressed grave concern about the continued high incidences of domestic violence in Canada, specifically against indigenous women and girls and women of colour.¹⁹³

Implementing recommendations in cos: A general comment regarding the implementation of Concluding Observation recommendations to the 6th periodic report is that only a select few recommendations are given attention in the follow-up procedure.¹⁹⁴ Those that are addressed receive only partial implementation. Canada recognised its ongoing duty to consult and accommodate indigenous communities where the government contemplates action that might adversely affect aboriginal treaty rights.¹⁹⁵ An important tool to this end is the Updated Guidelines for Federal Officials to Fulfil the Duty to Consult (March 2011).¹⁹⁶ Provincial governments have also established similar policies and guidelines for their officials to fulfil the duty to consult.¹⁹⁷ Regarding the resolution of land and resource disputes with indigenous peoples, Canada has implemented a specific claims policy meant to encourage reconciliation through negotiated settlements rather than litigation.¹⁹⁸ Canada committed to developing a new federal reconciliation framework informed by the recommendations (‘calls to actions’) of the Truth and Reconciliation Commission of Canada for addressing the legacy and impact of Canada’s Indian Residential Schools system as well as the principles of undrip.¹⁹⁹ However, the national reconciliation framework remains a work in progress and Canada has yet to legally adopt the undrip at the federal level.²⁰⁰ In January 2018 the Minister of International Trade announced the establishment of a Canadian Ombudsperson for Responsible Enterprise.²⁰¹ However, this measure may not fully address the HRCttee’s call for an independent mechanism with investigatory power. Local human rights groups have expressed concern that the Ombudsperson lacks independence and the power to obligate companies to comply with Ombudsperson investigations and recommendations.²⁰²,²⁰³ Regarding the level of engagement of Canada with the outcome of follow-up procedures, only one follow-up to cos is found in the UN treaty body database.²⁰⁴ This demonstrates a low level of engagement with the outcomes of the periodic reporting for ccpr.

5.2.5 Individual Communications and Their Impact

There have been 138 individual communications and no inquiries lodged under ccpr.²⁰⁵ The HRCttee found violations in respect of 28 communications concerning Canada, 8 covered in the previous study, and 20 adopted since 30 June 1999.²⁰⁶ Some individual communications brought before the HRCttee have received media attention and have led to law and policy change. For example, the case of Sandra Lovelace led to changes to the Indian Act ‘that seek to restore the legal rights of many status Indian women’.²⁰⁷ Lovelace lost her legal Indian status under the Indian Act because she married a ‘non-Indian’ and was prevented by the government of Canada from returning to her home reserve. The HRCttee concluded that Canada had violated her cultural minority rights, under article 27 of ccpr.²⁰⁸

In the more recent case of Toussaint v Canada, the HRCttee concluded that irregular migrants’ right to life and equality under ccpr covers access to essential health care services.²⁰⁹ Nell Toussaint entered Canada in 1999 and developed a serious health condition in 2008 before she could complete the process to regularise her immigration status. Due to her irregular status Toussaint was denied access to essential healthcare services available through Canada’s Interim Federal Health Programme. The HRCttee concluded that the right to life may impose positive obligations on governments, in addition to the negative obligation to not discriminate based on regular and irregular migration status. The HRCttee requested that Canada review its legislation to make sure that irregular migrants have access to essential health care in such circumstances.²¹⁰ Canada disagreed with the views of the Committee and expressed that it would ‘not be taking any further measures to give effect to those views’.²¹¹

5.2.6 Follow-Up to Individual Communications

There has been very low engagement on the part of Canada with the procedures for follow-up before the HRCttee. Canada has submitted one follow-up progress report on individual communications (ccpr/c/101/3) containing information received since October 2010. The two cases recorded in this single follow-up are Dumont and Hamida.²¹²

Dumont dealt with a violation of articles 2 and 14 of ccpr. In 1991 the Court of Québec found Mr Dumont guilty of sexual assault and sentenced him to 52 months in prison. Mr. Dumont appealed the decision, which was upheld. Prior to Mr. Dumont’s appeal, his alleged victim formally attested that she was mistaken about the assailant’s identity, yet this was not raised at appeal. Mr Dumont spent 34 months in prison before his conviction was reversed, and was not compensated in accordance with the Québec Guidelines on Compensation for Wrongfully Convicted and Imprisoned Persons.²¹³ In 2011 the HRCttee concluded that Canada should provide Mr Dumont with an effective remedy, including financial compensation, and take the appropriate steps to avoid similar violations in the future. Mr Dumont maintains that the out-of-court financial settlement he received does not constitute an effective remedy. This follow-up dialogue is considered ongoing by the treaty body.

Hamida dealt with an expulsion order requiring Mr Hamida to return to Tunisia. Mr Hamida argued that the order violated article 7 (prohibition against torture), in addition to article 2 of ccpr. The HRCttee’s follow-up recommended a reconsideration of the order with a view to obligation under ccpr to avoid exposing individuals to the risk of torture and other cruel and inhumane treatment. This follow-up dialogue is considered ongoing by the treaty body.

5.2.7 Brief Conclusion

Canada’s periodic and follow-up reports tend to cherry-pick recommendations to address; and of those, most receive only partial implementation. Nevertheless, there are moments demonstrating that Canada generally recognises the legitimacy and authority of the HRCttee. In August 2019 Canada delayed the deportation of Mr Abdilahi Elmi, a former Somali refugee and foster child, at the United Nations’ request so that the HRCttee could review his case. In response, a spokesperson for the Minister of Public Safety stated that ‘[i]nterim measures requests from the HRCttee are always considered by Canada’.²¹⁴

5.3.1 Incorporation and Reliance by Organs of State

In the cos to Canada’s 6th periodic report, the cescr Cttee has expressed concern that the lack of available legal mechanisms in Canada for upholding economic, social, and cultural rights might disproportionately affect disadvantaged and marginalised individuals and groups, including indigenous peoples, the homeless, and persons with disabilities.²¹⁵ The Covenant, unlike the Canadian Charter of Rights and Freedoms, explicitly guarantees the right to work and safe and fair working conditions;²¹⁶ the right to strike and belong to a trade union;²¹⁷ the right to an adequate standard of living;²¹⁸ the right to paid maternity leave and social security;²¹⁹ and the right to benefit from cultural and scientific developments.²²⁰ To close the rights gap between the Charter and cescr, the Committee has requested that Canada actively engage with indigenous peoples and other relevant stakeholders to broaden the scope of the Charter to explicitly include economic, social, and cultural rights.²²¹

Laws and policies related to the treaty: While not in direct response to the treaty, reforms to the Criminal Code aim to better protect target groups – particularly women and children – from domestic violence (article 10 of cescr).²²² An Act to amend the Canadian Human Rights Act,²²³ extends protection under the Act to first nations registered under the Indian Act by admitting complaints made under the Indian Act that were previously inadmissible.²²⁴ The federal Employment Equity Act seeks to achieve equitable representation in federal workplaces for four designated groups: women, aboriginal persons, persons with disabilities, and members of visible minorities.²²⁵ This helps to promote the progressive realisation of the right of all to gain a living by work under article 6 of cescr.²²⁶ Government statistics on the representation of designation groups in the federal government and the private sectors show a gradual improvement in the employment situation of the four designated groups since the Act took force in 1986.²²⁷

Civil society played a major role in successfully petitioning the federal government to include this provision in the National Housing Strategy Act. After the release of the National Housing Strategy, which signalled the federal government’s intention to make housing a right under Canadian law, 1 100 signatories penned a letter to Prime Minister Trudeau urging the government to do so.²³⁰

The National Housing Strategy itself refers to a ‘human rights-based approach to housing’ and the UN Sustainable Development Goals.²³¹

5.3.2 Reliance on the Treaty by Domestic Courts

The Supreme Court of Canada in Health Services and Support v British Columbia relied on cescr for guidance in interpreting the scope of collective bargaining rights under section 2(d) of the Canadian Charter of Rights and Freedoms.²³² In Saskatchewan Federation of Labour v Saskatchewan, the Court held that cescr is relevant to interpreting the Charter with respect to the right to strike. The majority opinion emphasized that Canada’s obligations under article 8(1) of cescr, ‘clearly argue for the recognition of the right to strike within s. 2(d) [of the Charter]’ (freedom of association).²³³ The dissenting opinion emphasized that article 8(2) of cescr did not prevent a state from imposing lawful restrictions on the right to strike, and that there is ‘no clear consensus under international law that the right to strike is an essential element of freedom of association’.²³⁴ Although they provide interpretative guidance, rights protected under cescr have not formed the basis of successful Charter challenges as the Charter does not explicitly protect economic, social, and cultural rights. Advocates have used the section 7 right to life, liberty and security of the person to ‘read in’ economic, social, and cultural rights. The most recent case to invoke section 7 on the basis of a violation of social, economic and cultural rights was the Ontario Court of Appeal ruling in Tanudaja v Canada (Attorney-General).²³⁵ The applicants sought a declaration ‘that the failure of Canada and Ontario to have implemented effective national and provincial strategies to reduce and eliminate homelessness and inadequate housing violates the applicants’ and others’ rights to life, liberty and security of the person contrary to s.7 of the Charter’.²³⁶ The Ontario Court of Appeal deemed the issue non-justiciable.²³⁷

5.3.3 Impact on and through Non-state Actors

ngos and civil society: We have not come across examples of ngos using cescr in advocacy campaigns or other awareness-raising projects. However, ngos such as Canada Without Poverty periodically update stakeholders on their engagement with the cescr Cttee.²³⁸ The most common use of the treaty by ngos has been in the context of submitting alternative reports to the Committee for the periodic review of Canada.²³⁹

Academics: To our knowledge, only three academic articles by local researchers deal exclusively with cescr and Canada.²⁴⁰ There have been recent articles that focus in part on the Covenant and Canada: a 2015 article on the right to housing;²⁴¹ another on monitoring women’s socio-economic equality under cescr;²⁴² and a third on the justiciability of social and economic rights in Canada.²⁴³

National human rights institutions: The chrc submits its own report to treaty monitoring bodies and for the upr. According to the UN treaty body database, the chrc made two submissions to the Committee (February 2016 regarding Canada’s 6th periodic report²⁴⁴ and February 2015, also regarding Canada’s 6th periodic report).²⁴⁵

5.3.4 State Reporting and Its Impact

The key issues detailed in the 6th and latest cos include the consistent lack of full domestic implementation and application of cescr in domestic law; the low levels of development assistance (0,24 per cent of Canada’s gross national income (gni) which is less than half of the internationally-recognised target of 0,7 per cent); the lack of meaningful consultations with indigenous peoples regarding government resource development; ongoing socio-economic disparities between indigenous and non-indigenous peoples; and the overrepresentation of women and minorities in part-time and low-wage labour.²⁴⁶

Canada’s engagement with cos: There are no follow-up procedures for cos on record, which makes it very difficult to assess whether cos have been implemented by Canada.

5.3.5 Brief Conclusion

The absence of follow-up procedures for cos on record makes it difficult to accurately assess Canada’s implementation of cescr Cttee recommendations. At the same time, key issues detailed in the 6th and latest cos are still negatively impacting cescr adherence. Canada’s official development assistance still makes up less than half of the internationally recognised target of 0,7 per cent.²⁴⁷ There still exists a wide wage gap and other socio-economic disparities between indigenous and non-indigenous peoples. A 2017 study by the Conference Board of Canada revealed that indigenous people with a high school diploma earned 15 to 19 per cent less than non-indigenous people with the same level of education.²⁴⁸ Available statistics for Canada also illustrate serious disparities between men and women in the job market. Statistics Canada reports that Canadian women earn on average 4,13 cad less per hour than men.²⁴⁹ The gap is attributed to women being more statistically likely to work part-time, sacrifice paid hours to attend to family obligations, work lower-wage jobs, among other factors.²⁵⁰

On a more positive note, Canada has committed to implementing a national housing strategy, a recommendation made by the cescr Cttee in cos to the 6th report. However, Canada’s lack of follow-up procedures to the cos make it difficult to attribute the national housing strategy to the Committee’s recommendation.

5.4.1 Incorporation and Reliance by Organs of State

The cedaw Cttee has expressed similar concerns related to the treaty not being justiciable in Canada because it has not been incorporated into domestic law.²⁵²

Nevertheless, certain guarantees in cedaw have been reflected in constitutional and statutory protections and policies. The Canadian Charter of Rights and Freedoms includes an explicit prohibition on discrimination based on sex.²⁵³ Moreover, under the Canadian Human Rights Act, the Canadian Human Rights Commission may investigate claims of discrimination in federally regulated spheres and refer cases for adjudication to the Canadian Human Rights Tribunal. Moreover, each province and territory has its own anti-discrimination legislation that applies to non-federal spheres and prohibits discrimination in employment and the government provision of goods and services.

Other relevant legislation and programmes identified by Canada in its combined 8th and 9th periodic reports include the Zero Tolerance for Barbaric Cultural Practices Act (2015), to protect girls and women from forced marriage and bans a foreign national or permanent resident from Canada for practising polygamy;²⁵⁴ the Protecting Canadians from Online Crime Act (2014);²⁵⁵ the Family Homes on Reserves and Matrimonial Interests or Rights Act (2013; amended in 2014);²⁵⁶ the Protection of Communities and Exploited Persons Act (2014) to outlaw profiting from prostitution;²⁵⁷ the Gender Equity in Indian Registration Act (2011);²⁵⁸ the Action Plan to Address Family Violence and Violent Crimes against Aboriginal Women and Girls (2014);²⁵⁹ the National Action Plan to Combat Human Trafficking (2012);²⁶⁰ and the Federal Framework for Aboriginal Economic Development (2009).²⁶¹

5.4.2 Policies

As with legislation, Canada’s policies may contemplate core treaties such as cedaw but it is generally difficult to establish this link in a cause-and-effect way, even based on Canada’s written submissions to the cedaw Cttee. The Canadian Feminist Alliance for International Action Canada (fafia/afai Canada) has been persistent in pressuring the federal government to implement a national gender equality plan.²⁶² In June 2017, Canada launched ‘It’s Time: Canada’s Strategy to Prevent and Address Gender-Based Violence’, a national plan to tackle gender-based violence.²⁶³

5.4.3 Resource Allocation

Canada’s combined 8th and 9th periodic reports also outline budgetary allocations in light of the treaty’s obligations. The 2018 federal budget included $100,9 million over five years, and $20,7 million per year ongoing, to implement the national gender equality plan.²⁶⁴ This included the establishment of the Gender-Based Violence Knowledge Centre within Status of Women Canada (now Women and Gender Equality Canada), which aims to better distribute resources across different levels of government and promote more coordinated action on gender-based violence.

5.4.4 Reliance by Domestic Courts

There is no significant reliance on cedaw by the Supreme Court or by lower courts and tribunals. The vast majority of cases mentioning cedaw have come before the Immigration and Refugee Board of Canada (irb) and the federal courts and involved women who have been denied asylum in Canada or are seeking a stay of deportation in order to avoid the threat of violence by a partner in their country of origin. In these cases, cedaw is mentioned merely to establish whether the treaty has been ratified by the country of origin so as to determine whether the country of origin offers protection to women against domestic violence.

5.4.5 Impact on and through Non-state Actors and Independent State Institutions

ngos and civil society: ngos generally cite cedaw in alternative reports to the cedaw Cttee for the periodic review of Canada. cedaw is also consistently cited by Human Rights Watch and Amnesty International in their reports on Canada.²⁶⁵ In 2011 the Native Women’s Association of Canada (nwac) and fafia Canada requested that the cedaw Cttee conduct an inquiry into the murders and disappearances of indigenous women and girls in Canada, given that the federal government in power at the time did not seem inclined to undertake such an inquiry.²⁶⁶ nwac, fafia and other public interest groups were instrumental in coordinating with the Committee to successfully pressure Canada to launch the National Inquiry into Missing and Murdered Indigenous Women and Girls (mmiwg) in 2015. In addition, ngos that work on issues related to women’s rights in Canada consistently make submissions to the Committee for the periodic review of Canada.²⁶⁷

National human rights institution: The Canadian Human Rights Commission has submitted one independent report (September 2016) to the Committee with regard to Canada’s 8th and 9th periodic reports.²⁶⁸

5.4.6 State Reporting and Its Impact

Pertinent issues in cos recommendations: The cos regarding Canada’s 8th and 9th periodic reports considered unaddressed issues from previous cos such as the particularly low public awareness of cedaw in the country and the dearth of government initiatives to improve awareness;²⁶⁹ insufficient steps to render cedaw justiciable;²⁷⁰ and the crisis of access to justice in Canada and its distinct effect on women.²⁷¹ It also urged Canada to consider, going forward, a whole-of-government national strategy to address gender-based violence against women;²⁷² the persisting discrepancy in pay between men and women, in part linked to the lack of accessible child-care and other social supports;²⁷³ the conduct of Canada-based resource extraction companies operating abroad and its particular impact on women and girls;²⁷⁴ and provisions of the Indian Act which continue to unduly discriminate against indigenous women, as reflected in decisions rendered by the HRCttee.²⁷⁵

Implementation of cos: In the cos for Canada’s 6th and 7th period report,²⁷⁶ the cedaw Cttee urged Canada to examine the reasons for failing to investigate cases of missing and murdered indigenous women and girls (mmiwg) as part of a formal national inquiry and to determine whether this issue is symptomatic of systemic discrimination based on gender and race.²⁷⁷ In response in its follow-up to cos, Canada explained it was providing funding to the nwac Sisters in Spirit initiative ($5 million over five years (2005–10)) to conduct research and education pertaining to the underlying factors contributing to gendered racism and violence against indigenous women and girls.²⁷⁸ The nwac and the Royal Canadian Mounted Police have established an information-sharing arrangement regarding mmiwg. The nwac has also established a collaboration with the Department of Justice to develop a protocol for service providers (e.g., police, social workers) who work with indigenous women and girls affected by crime.²⁷⁹ Canada’s follow-up to the cos regarding the 6th and 7th periodic reports did not provide, as requested by the cedaw Cttee, a firm commitment toward establishing a national inquiry into the issue of mmiwg. In response, the cedaw Committee launched its own inquiry into the matter.

5.4.7 Individual Communications and Their Impact

The cedaw Cttee found Canada in violation in one communication, Cecilia Kell v Canada,²⁸⁰ and declared a further three complaints inadmissible.²⁸¹ In Kell, the Cttee found a violation of articles 1, 2 and 16 of cedaw. The matter concerned Kell, an indigenous woman, who had been evicted from her home by her abusive partner.²⁸² Kell filed an individual complaint, claiming that Canada ‘failed to ensure that its agents refrain from engaging in any act or practice of discrimination against women, when they removed [Kell’s] name from the lease without her consent’, and therefore violated article 16 of cedaw. The Committee recommended that Canada provide Kell housing and financial compensation and take proactive steps to ensure that indigenous women who face domestic violence have adequate and effective access to justice. There are no follow-up reports to communications for cedaw found in the UN treaty database.

5.4.8 Impact of Inquiries

Canada allows the cedaw Cttee to undertake inquiries pursuant to articles 8 and 9(2) of op-cedaw. The Committee launched an inquiry into the issue of missing and murdered indigenous women and girls in Canada in 2012 followed by an official state visit in 2013.²⁸³ The cedaw Cttee’s 2015 inquiry report²⁸⁴ concluded that Canada violated several rights under cedaw and was required to ‘take appropriate measures to modify or abolish not only existing laws and regulations, but also customs, practices and stereotypes that constitute discrimination against women’,²⁸⁵ to exercise due diligence and ‘strengthen its institutional response’ to prevent, address, and provide reparations for violence against indigenous women (articles 2(c), 2(e) and 15(1));²⁸⁶ and ‘ensure that aboriginal women are protected against discrimination committed by public institutions’ (articles 2(c), 2(d), 2(e) and 15).²⁸⁷

In response to these findings of grave violations of cedaw, the Committee issued 38 recommendations to ‘be considered and implemented as a whole’.²⁸⁸ The Trudeau administration (2015-) committed $54 million over more than a three-year period to the National Inquiry on Missing and Murdered Indigenous Women and Girls (mmiwg).²⁸⁹ The inquiry called on over 2 000 witnesses across the country to give testimony and concluded with a report on the findings. The inquiry and its associated report call on F-P-T and indigenous governments to implement 231 ‘imperative’ changes that need to be undertaken by society as a whole to address violence against indigenous women and girls and 2slgbtqqia persons.²⁹⁰

While Canada’s initiative to establish a national inquiry on this issue was regarded by the cedaw Cttee as a step forward that satisfied one of the 38 recommendations stemming from the Committee’s inquiry, the cedaw Cttee noted with concern that Canada had not provided a concrete plan to carry out the Cttee’s other recommendations.²⁹¹ The UN High Commissioner for Human Rights has also put pressure on Canada to develop a national mmiwg action plan to fully implement the recommendations of the National Inquiry.²⁹²

5.4.9 Brief Conclusion

Canada’s follow-up to the cos regarding the 6th and 7th periodic reports did not provide, as requested by the cedaw Cttee, any firm commitment toward establishing a national inquiry into the issue of mmiwg. After the cedaw Committee launched its own inquiry into the matter in 2012,²⁹³ the Trudeau administration (2015-) later committed $54 million over more than a three-year period to the National Inquiry on mmiwg.²⁹⁴ While this was regarded by the cedaw Cttee as a step forward, the Committee remained concerned that Canada had not provided a concrete plan to action 37 outstanding recommendations stemming from its 2012 inquiry.²⁹⁵

5.5.1 Incorporation and Reliance by Organs of State

Treaty incorporation into domestic law: Canada relies on an incomplete patchwork of constitutional and statutory protections, policies, and programmes to implement cat, including the Canadian Charter of Rights and Freedoms, the Criminal Code, the Immigration and Refugee Protection Act, the Extradition Act, and the Corrections and the Conditional Release Act.²⁹⁶ However, some provisions of cat have been specifically incorporated in Canadian law. The Convention’s definition of torture is directly referenced in the Immigration and Refugee Protection Act’s definition of a ‘person in need of protection’ as it applies to the principle of non-refoulement.²⁹⁷ The criminal offence of torture, established in section 269.1 of the Criminal Code, aims to replicate the definition of torture in article 1 of cat. Moreover, section 269.1(4) of the Criminal Code excluding evidence obtained by torture except as evidence that it was obtained through torture mirrors the ‘exclusionary rule’ in article 15 of cat.²⁹⁸

Policies based on/related to cat: There have also been several policy developments through court rulings and acts of legislature which indirectly rely on the provisions or general principles of cat. In 2014, the Supreme Court of Canada in Kazemi Estate v Iran recognised the prohibition of torture as a peremptory norm of international law.²⁹⁹ Following a 2015 Federal Court of Canada decision,³⁰⁰ unsuccessful refugee claimants originating from designated countries now have the right to appeal initial determinations made against them by the Refugee Appeal Division of the Immigration and Refugee Board.³⁰¹

5.5.2 Use of the Treaty by Domestic Courts

In Kazemi Estate v Iran, the Supreme Court of Canada held that while any acts of torture committed by Canada ‘would breach international laws and principles that are binding on Canada’, these acts would ultimately be deemed illegal under the Criminal Code and contrary to the Charter section 12 prohibition of cruel and unusual treatment or punishment.³⁰² The Kazemi decision demonstrates the extent to which provisions of cat are relied on as a guide for the interpretation of Canadian law rather than as a source of legal remedy per se. In France (Republic) v Diab the Ontario Court of Appeal interpreted article 15 of cat in finding that extradition should not be authorised where there is a significant risk that the requesting state will use torture to obtain evidence from the extradited person.³⁰³ The Alberta Court of Appeal’s decision in United States v ‘Isa, also interpreted article 15 of cat to highlight the inadmissibility of evidence obtained by torture.³⁰⁴

5.5.3 Impact on and through Non-state Actors and Independent State Institutions

Legal community: cat has received treatment in reports or findings by ombudsman and human rights institutions, civil liberties associations, and civil society organizations. The subjects of these reports range from the treatment of inmates in corrections facilities and the failure to conduct legally mandated inspections of these facilities under the norms set out by cat; to coordinated efforts between civil society and the cat Cttee to stop the forced sterilisation of (indigenous) women; and Canada’s reluctance to adopt op-cat, despite stating that it would do so.³⁰⁵

ngos and civil society: The cat mechanisms and processes have also been appealed to by concerned citizens turned advocates. Nurses Linda MacDonald and Jeanne Sarson appeared before the cat Cttee in 2012 to seek its assistance in convincing the Canadian government to define non-state torture as a distinct crime.³⁰⁶ As health practitioners, they had seen first-hand the effects of electric shocking, water torture, confinement in basements, mutilation and maiming, among other inhumane and cruel acts. While these acts are already considered crimes, they argued that protracted abuse linked to torture is not captured by currently labelled crimes such as aggravated assault. Accordingly, the cat Cttee recommended that Canada amend the Criminal Code to include non-state torture as a distinct crime. The pair returned to the Committee in 2018 to increase pressure following Canada’s failure to implement the Committee’s recommendation.³⁰⁷

Academics: While cat has been mentioned in several Canadian textbooks and academic journal articles in the field of international human rights, we did not find works by local researchers that are devoted to cat.

National human rights institutions: The Canadian Human Rights Commission (chrc) has made two submissions under cat.³⁰⁸ This does not represent frequent and consistent use of the treaty, but the chrc have made submissions for the last two periodic reviews and hopefully this is a continuing trend.

5.5.4 State Reporting and Its Impact

Pertinent issues in cos recommendations: The cat Cttee begins the 7th and latest cos to Canada’s periodic report for review³⁰⁹ by addressing pending follow-up issues from the previous reporting cycle.³¹⁰ These include ensuring that the legal mechanism for detention and deportation under the Immigration and Refugee Protection Act – the security certificate process – is consistent with relevant safeguards in international law.³¹¹ The Committee also found that while section 10 of the Charter provides de jure procedural safeguards, such as the right to be promptly informed of the reasons for detention and the right to ‘retain and instruct counsel without delay’, little information was provided on institutional procedures available to ensure the application of these safeguards.³¹² Other issues raised included the misuse of solitary confinement; the lack of statistics regarding complaints of torture received through prison complaint mechanisms; deaths in custody; and the need for adequate redress for torture and other inhumane treatment of Canadians detained abroad.³¹³

Implementation of recommendations in cos: In line with the Committee’s recommendation, the Canada Border Services Agency introduced alternatives to detention in July 2018, including electronic monitoring and community supervision.³¹⁴ However, contrary to the Committee’s recommendations, Canada has left open the possibility of indefinite immigration detention.³¹⁵ Canada justifies this policy by appealing to the 2007 Supreme Court of Canada decision, Charkaoui v Canada, in which the Court implicitly rejected the necessity of imposing strict timelines for immigration detention and instead emphasised the need for a ‘meaningful process of ongoing review’ to accord the detainee ‘meaningful opportunities to challenge their continued detention or the conditions of their release’.³¹⁶ Canada’s statutory scheme for detention was later re-evaluated by the Supreme Court of Canada in the 2019 Canada v Chhina decision, where it was held that Canada’s statutory scheme is not necessarily as robust as section 10(c) of the Charter (habeas corpus).³¹⁷

Regarding the torture of Canadians detained abroad, and in light of the findings of the Iacobucci Inquiry,³¹⁸ the cat Cttee welcomed government compensation and a formal apology to three Canadians tortured by Canadian officials but regretted ‘the absence of prosecutions related to Canadian involvement in these alleged offences’.³¹⁹

5.5.5 Impact of Individual Communications and Their Impact

Around 70 individual communications have been submitted to the cat Cttee against Canada. The cat Cttee found violations in nine of these communications, one instance predating the current study period, and eight adopted after 30 June 1999.³²⁰ Most of the communications dealt with the obligation not to return non-nationals to places where they face a serious risk of being tortured or experiencing ill-treatment upon their return. The majority of complaints were found inadmissible or discontinued. In one high-profile case, Boily v Canada, the Committee determined that Canada violated cat when it extradited Boily to Mexico where he faced torture. The Committee ordered Canada to review its system of diplomatic assurances. There is no follow-up to the jurisprudence report on record under cat, so it is difficult to provide full information on the impact of this communication. According to media reports, Canada has not acted on the Committee’s order to provide an effective remedy to Boily.³²¹

Domestic issues ripe for submission to treaty body that have not been submitted: One domestic issue that might be ripe for submission is the involuntary sterilisation of indigenous women and women with disabilities. Sterilisation without informed consent has been allegedly performed in Canada as recently as 2018.³²²

A House of Common Committee is currently examining this issue as is a F-P-T task force established by Health Canada.³²³ These developments came after the cos to Canada’s 7th periodic report, which call on Canada to investigate all allegations of involuntary sterilization.³²⁴ The cos also recommended criminalizing coerced sterilization.

5.5.6 Brief Conclusion

It is difficult to provide a comprehensive analysis on the tangible impact of the treaty body’s jurisprudence as Canada did not submit any follow-up reports to the cat Cttee’s views. Moreover, Canada has a mixed record of implementing cos made by the cat Cttee. While Canada has adopted less severe alternatives to detention where appropriate, it has also decided to leave open the possibility of indefinite immigration detention despite the cat Cttee’s concerns.

5.6.1 Incorporation and Reliance by Organs of State

The cos of the crc Cttee for the 3rd and 4th periodic reports of Canada expressed concern ‘at the absence of legislation that comprehensively covers the full scope of the Convention in national law’.³²⁵ While this broad issue persists, Canada’s 3rd and 4th reports outline sporadic, piecemeal legislative measures aimed at meeting some of Canada’s obligations under crc.³²⁶ The 2009 amendments to the Citizenship Act allow a child adopted by a Canadian citizen to obtain Canadian citizenship without first becoming a permanent resident to reduce the distinction in eligibility for Canadian citizenship that existed between foreign-born adopted children and children born abroad to Canadian parents’.³²⁷ Moreover, 2015 amendments to the Criminal Code establish offences to specifically address human trafficking – a crime that acutely affects children.³²⁸

5.6.2 Policies and Programmes

Canada’s 3rd and 4th reports for periodic review also outline specific policy initiatives undertaken by Canada in consultation with various stakeholders to promote observance of the treaty requirements. In 2004, Canada launched its National Action Plan for Children, A Canada Fit for Children, as a response to commitments it made at the 2002 UN Special Session on Children.³²⁹ Also in 2004, Canada implemented the National Strategy to Protect Children from Sexual Exploitation on the Internet.³³⁰ In June 2012, Canada launched a four-year National Action Plan to Combat Human Trafficking.³³¹ In addition to these initiatives, the federal government provides funding support to non-profit organisations to promote the principles of crc. Canada has funded a child-friendly version of op-crc-ac and conferences which provide training for first nation youth facilitators, adults, and community workers on the crc.³³²

At the provincial level, Ontario enacted the Child, Youth and Family Services Act in April 2018 with the explicit aim ‘to be consistent with and build upon the principles expressed in the United Nations Convention on the Rights of the Child’.³³³ In New Brunswick, every policy proposal that goes before Cabinet that impacts or may impact children must be accompanied by a Child Rights Impact Assessment (cria), which is based on crc.³³⁴

It is difficult to assess budgetary commitments in light of the treaty because, as the crc Cttee notes, Canada does not use a ‘child-specific approach for budget planning and allocation’ at the F-P-T levels.³³⁵ Moreover, Canada’s 3rd and 4th reports fail to provide any specific, concrete details on expenditure in relation to child-or youth-related programmes that different levels of government are undertaking.³³⁶ This makes it a serious challenge to assess the impact of financial or other material investments in crc and in children.

5.6.3 Use by Domestic Courts

In Baker v Canada, the majority of the Supreme Court of Canada held that crc is not directly implemented in Canadian law and therefore could not form the basis of a legal claim before a Canadian court.³³⁷ The majority of the Supreme Court found that while ‘the legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional’,³³⁸ the provisions of crc ‘have no direct application within Canadian law’, although the provisions could still serve as a source for finding the values and principles behind Canadian law.³³⁹ Accordingly, the majority held that the treaty’s guiding principle of the ‘best interests of the child’ should have been a prime factor informing government decision making concerning children in this case, despite crc not being incorporated into domestic law.³⁴⁰ Following Baker, crc has received explicit treatment as an interpretative guide on questions pertaining to child pornography,³⁴¹ youth protection services,³⁴² corporal punishment,³⁴³ privacy, and the protection of children from cyberbullying.³⁴⁴

5.6.4 Impact on and through Non-state Actors

crc is sometimes relied on as part of the toolkit in ngo advocacy to put pressure on Canada when the government acts in a manner inconsistent with the treaty. The most common use of crc by ngos in this respect is in alternative reports to the crc Cttee. unicef Canada and the Canadian Coalition on the Rights of the Child (ccrc) in particular have also taken initiatives to translate crc, Canada’s reports and correspondences with the UN, and other supporting documents in child-friendly language.³⁴⁵

The input of over 100 ngos was sought for Canada’s 3rd and 4th periodic reports.³⁴⁶ Throughout these consultations, ngo participants noted the lack of opportunities for meaningful participation in the periodic review process by Canadian youth and children in attendance. They also noted that Canada’s 3rd and 4th reports to the Committee lacked a focused and coherent strategy for giving effect to the obligations of the treaty.³⁴⁷

5.6.5 State Reporting and Its Impact

Pertinent issues in recommendations in cos: Some of the main concerns expressed in the cos to the 3rd and 4th report were carried over from Canada’s initial periodic report under the treaty. They include incomplete domestic implementation of the crc and its Optional Protocols and Canada’s failure to follow the crc Cttee’s recommendation to withdraw its reservation to article 37(c) (deprivation of a child’s liberty).³⁴⁸ Emerging issues raised in the cos to the 3rd and 4th periodic reports include the National Plan of Action for Children’s lack of a ‘clear division of responsibilities, clear priorities, targets and timetables, resource allocation and systematic monitoring’;³⁴⁹ the need for a national ombudsman for children at the federal level given that the Canadian Human Rights Commission can only address discrimination-based complaints;³⁵⁰ an overrepresentation of indigenous and black children in the criminal justice system or under the care of the state;³⁵¹ the rising level of obesity among youth;³⁵² and the absence of mediums to facilitate meaningful participation of youth in laws and policies that particularly affect them.³⁵³

Implementation of recommendations of cos: Canada’s level of engagement with cos and its commitment to implementing the recommendations therein are difficult to gauge because there are no official follow-up reports to cos on record in the UN treaty body database. The Committee notes in the cos to the 3rd and 4th periodic reports that a number of recommendations from the initial and 2nd country reports were not fully addressed or sufficiently implemented by the federal government. These include inadequate data collection and a lack of mechanisms for independent monitoring and reporting of the situation of children in Canada; and issues of particular concern to children, including: adoption; corporal punishment; economic exploitation; and juvenile justice.³⁵⁴

5.6.6 Brief Conclusion

Canada’s lack of engagement in the crc Cttee’s monitoring processes makes it difficult to gauge the impact of the treaty at the domestic level. At the time of writing Canada has not issued a follow-up to the Committee’s cos to indicate why many of the recommendations from the initial and 2nd reports still have not been implemented. The Supreme Court of Canada’s treatment of crc in a landmark case, Baker v Canada, has helped define the place of human rights treaties in Canadian law. Following Baker, crc has received explicit treatment as an interpretative guide in cases regarding child pornography, youth protection services, corporal punishment and the protection of children from cyberbullying.

5.7.1 Incorporation and Reliance by Organs of State

crpd is partially implemented by a patchwork of constitutional, statutory, and administrative protections. These include the explicit guarantee of equal treatment for persons with disabilities (pwds) under section 15 of the Canadian Charter of Rights and Freedoms, which is similar to article 5 of crpd;³⁵⁵ the Canadian Human Rights Act, which protects pwds from discrimination when they are employed by, or receive services from, the federal government or entities regulated by the federal government;³⁵⁶ and other F-P-T laws, policies, and programmes covering issues that particularly affect pwds, such as minimum standards for the accessibility of built environments, disability insurance and other social supports.³⁵⁷

The obligations of crpd may also be implemented through the Accessible Canada Act.³⁵⁸ The Act explicitly references the treaty and sets the goal of making Canada barrier-free by 2040.³⁵⁹ Generally, the Act has been welcomed by disability groups and stakeholders, given that only three provinces (Manitoba, Nova Scotia and Ontario) have passed accessibility legislation to set a minimum standards on the accessibility of built environments.³⁶⁰

The definitions of ‘barrier’ and ‘disability’ and the principles (section 6) of the Accessible Canada Act may have been influenced by the language used in the Preamble and articles 1–4 of crpd. Moreover, Canada’s interpretative declaration regarding article 33(2) of crpd clarifies that the country will establish monitoring mechanisms at multiple levels of government through (quasi-) judicial and administrative bodies.³⁶¹ So far, the Canadian Human Rights Commission is one body made responsible for monitoring the federal government’s implementation of crpd.³⁶²

5.7.2 Institutional Reform

The Accessible Canada Act establishes an accessibility commissioner and chief accessibility officer, both of whom are responsible for monitoring compliance with the Act.³⁶³

5.7.3 Collaborative Approach to Policy Making

Canada included pwds as members of the Canadian delegation in the negotiation and ratification of the crpd.³⁶⁴ Canada has also welcomed and supported ngos to participate in all conferences of state parties to crpd and hosted consultations on issues related to persons with intellectual disabilities; the Registered Disability Savings Plan; and the Canada Pension Plan disability benefit.³⁶⁵

5.7.4 Budget Allocations

Employment and Social Development Canada has allocated $11 million in annual funding for initiatives addressed barriers to social inclusion experienced by pwds.³⁶⁶ In 2013, up to $9 million was earmarked to support projects promoting the accessibility of physical environments.³⁶⁷ The Social Sciences and Humanities Research Council of Canada was allocated $7 million per year in the 2013 federal budget to conduct research on the labour market participation of pwds.³⁶⁸

5.7.5 Reliance by Domestic Courts

Canadian courts do not adjudicate crpd or directly apply its articles in their decisions due to a lack of implementation of the treaty into domestic law.

In Cole v Cole, the Ontario Superior Court considered whether an 18-year-old person with a disability was a ‘child of the marriage’ under the federal Divorce Act,³⁶⁹ or whether they were an adult who should be provided with the support to exercise their own legal capacity and decision-making powers.³⁷⁰ Under the Divorce Act, ‘a child of the marriage’ may be a person who ‘is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge’. The litigation guardian of the respondent requested that the Court apply the crpd which requires Canada to recognise and take appropriate measures to ensure that pwds can exercise legal and decision-making capacity on an equal basis with others.³⁷¹ While the Court found the respondent’s argument ‘most interesting, and worthy of consideration’, the 18-year-old remained subject to the child custody order. This case illustrates one of the ways in which Canada’s failure to incorporate crpd into domestic law can act as a barrier to the legal application of crpd rights. Similarly, the cescr Cttee has highlighted in its cos to Canada’s 6th periodic report that the fact the treaty ‘remain[s] non-justiciable in domestic courts … may disproportionately impact disadvantaged and marginalised groups and individuals, including homeless persons, indigenous peoples and persons with disabilities’.³⁷²

5.7.6 Impact on and through Non-state Actors and Independent State Institutions

ngos and civil society organisations: Given that crpd offers rights to persons with disabilities that are more expansive than Canadian law, public interest litigation, as demonstrated by Cole v Cole, is making use of the crpd provisions in the hope of broadening the scope of domestic laws that touch on disability rights. crpd may also be used in ngo advocacy strategies to pressure the government to do more for pwds by enacting legislation to fully implement crpd. The most common use of the treaty is in the submission of alternative reports by ngos and civil society organisations. Some ngos have engaged in knowledge sharing practices and have submitted a joint submission.³⁷³

National human rights institutions: The Canadian Human Rights Commission and 700 civil society organisations were consulted in the drafting of the report.³⁷⁴

5.7.7 State Reporting and Its Impact

The Committee’s cos to the initial report made recommendations on several fronts, including to implement crpd across all levels of government and withdraw the declaration and reservation to article 12 which purportedly preserves substitute decision making counter to the human rights model of disability.³⁷⁵ Additionally, the lack of quantitative and qualitative data on these issues make it difficult for the Committee to assess the gaps in exercise and enjoyment of rights of pwds compared to those who do not live with disabilities.

5.7.8 Individual Communications and Their Impact

Canada ratified op-crpd only in 2018, and as yet there are no individual communications or inquiries on record in the UN treaty body database.

5.7.9 Brief Conclusion

There is no official follow-up from Canada to the latest cos. The upcoming report for periodic review will give Canada a chance to explain measures it has taken to improve its efforts to implement crpd.