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Human Rights: What the new Government of Canada must do
December 10, 2015—Between 2010 and 2015, Voices-Voix documented attacks on human rights by previous Canadian governments on Canadian rights defenders, NGOs and other civil society organizations. Elected on October 19 with a majority, the new federal government has a critical opportunity to reengage with constitutional protections and see through numerous campaign commitments.
Many changes could be made in short order, with minimal cost. Indeed, like many Canadians, we are pleased that steps have already been taken in several files, including a range of issues that Voices-Voix has been raising over the last several years. Other changes will be longer-term projects, requiring the re-establishment of important policies and the creation of new entities and partnerships, thereby incurring new expenditures.
We believe that in the long run, these expenditures will pay for themselves socially, legally and economically.
The list below does not purport to be the definitive list of human rights issues that the Government of Canada should be addressing. It does reflect the issues that emerged from more than 110 case studies that Voices-Voix has researched and published over the years.
On Indigenous rights:
Strike a federal inquiry on missing and murdered women
The Government of Canada has taken the unprecedented step of releasing publicly the mandate letters for each federal department. It is laudable that the mandate letter for the Department of Justice enjoins the Minister of Justice and Attorney General of Canada (the “Justice Minister”) to develop an “approach to and a mandate for an inquiry into murdered and missing Indigenous women and girls in Canada.” It is also important that this is to be a shared responsibility with the Minister of Indigenous and Northern Affairs, and supported by the Minister of Status of Women. Striking this public inquiry would serve as a long overdue response to the particular and on-going vulnerability of Indigenous girls and women. It is important that the government take the time to consult fully on the composition and mandate of the inquiry rather than simply repeating the organizational and conceptual missteps of previous inquiries organized along a more traditional (some would say colonialist) model.
“It is time for a renewed, nation-to-nation relationship with Indigenous Peoples, based on recognition of rights, respect, co-operation, and partnership.”
In addition to the long-awaited national inquiry, the government should proceed with measures that will address key aspects of this relationship, including those well-known disadvantages for Indigenous peoples that have often been identified as causes of increased risk. These include provision of adequate, safe housing on reserves, safe drinking water on reserves, high quality education and health services for Indigenous peoples, and adequate transportation links for remote communities. There is no need to await the conclusion of an inquiry to take action on these issues.
Actually renewing a nation-to-nation relationship with Indigenous peoples requires that Canada recommit to the fundaments of the historic treaties, which in many cases were no sooner signed than abandoned in favour of forcing their Indigenous signatories to go under the Indian Act regime, to which Treaties are virtually irrelevant. Moreover, it is essential that Canada examine its policy with respect to the modern treaties, particularly the requirement that land be surrendered in order to finalize a treaty. Canada might also ask why the process of making modern treaties is taking so long, with so few results.
Underlying all of the difficulty in establishing new and mutual relationships with Indigenous peoples is the position taken by Canada on section 35 of the Constitution, arguing that Indigenous title, while arising from Indigenous legal orders which pre-date Confederation, is subordinate to the Crown’s interest in land. Canada’s contemporary policy with respect to Indigenous peoples continues to be shaped by colonialism, whether the subject matter is land and environment or registration under the Indian Act. It is long past time for a fundamental re-think of that old stance.
An effective way of doing that, and moving forward on a new footing, would be for Canada to incorporate the UN Declaration on the Rights of Indigenous Peoples into Canadian law. With the Declaration as part of Canada’s fundamental constitutional order, many changes would be required; organized and systematic government work will ensure that these are accomplished in an orderly and fair manner.
On the Charter of Rights & Freedoms:
“The greatest possible commitment to the Charter of Rights and Freedoms”
The first critical step to meeting this commitment is to issue a directive requiring Justice lawyers to inform Parliament when there are serious concerns that draft legislation would violate human rights. Ideally of course, such flawed bills should never reach the stage of moving from the Department of Justice to Parliament. But if they do, safeguards must be in place.
These measures would ensure greater respect not only for the Charter, but also for the Canadian Bill of Rights and the Department of Justice Act.
Restore the Court Challenges Program … with a twist
The Government of Canada is to be commended for making this commitment. A “modern” Court Challenges Program should not only have the mandate to fund court challenges that engage the Charter, but also those challenges that engage with international human rights law.
“Review our litigation strategy. This should include early decisions to end appeals or positions that are not consistent with our commitments, the Charter or our values.”
Here are a few key cases to start with:
Drop the Edgar Schmidt case whereby Mr. Schmidt, a lawyer, sued the Justice Department, his former employer, for failing to notify Parliament when drafts laws were unconstitutional except in a tiny percentage of cases. The government should publicize the terms of its commitment to respect the rule of law with regard to its own scrutiny of draft legislation.
It was welcome news that the Government of Canada has suspended the hearing in the Federal Court of Appeal in the Canadian Doctors for Refugee Care case. The case should be dropped definitively. (The appeal dealt with the Federal Court's earlier finding that reducing interim federal health care for refugee claimants and others seeking Canada’s protection constituted “cruel and unusual treatment” under the Charter.)
Drop the Government of Canada’s opposition to the First Nations Child and Family Caring Society and the Assembly of First Nations before the Canadian Human Rights Tribunal. The Society alleges that Aboriginal children on-reserve receive 22 per cent fewer funds as compared to other children.
Review the federal position in current litigation dealing with section 6 of the Indian Act (dealing with registration of persons under the Act) to ensure that it is consistent with the Charter and with Canada’s international commitments, settling any cases in which Canada’s position is inconsistent with either set of legal standards.
Repeal or review legislation that is not consistent with the government of Canada’s commitments, the Charter, or our values
While this was not part of the mandate letter to the Minister of Justice, it is implied by the previous commitments, and would engage with explicit and implicit requirements to ensure that the Canadian legal framework complies with the rule of law and the Canadian Constitution.
“Support efforts to repeal key elements of Bill C-51, and introduce new legislation that strengthens accountability”
This commitment could be initiated by striking a committee of external experts on public security and anti-terrorism, working in tandem with the relevant government officials and legal experts. Particular attention should be paid to the new disruption powers that CSIS will have, oversight of national security agencies, preventative detention (whereby people can be detained on the grounds of suspicion rather than reasonable grounds or cause), and judicial powers to authorize Charter violations committed by intelligence or national security officials. It should similarly scrutinize the extensive information-sharing powers concerning matters that undermine national security or interfere with critical infrastructure.
As part of the related commitment in the mandate letter to “introduce new legislation that strengthens accountability,” national security and intelligence agencies should be required to report on the human rights impacts of their work on the rights of Canadians on an annual basis.
Repeal the Zero Tolerance for Barbaric Cultural Practices Act, considering that the practices in question are already criminal offences in Canada.
Amend Bill C-13, the Protecting Canadians from Online Crime Act, by separating cyber-bullying prohibitions from lawful access provisions, as recommended by the Canadian Bar Association’s 2014 recommendations, given that lawful access provisions raise privacy concerns and could be severed from the cyberbullying provisions. The latter provisions were a response to the online harassment and subsequent deaths of Amanda Todd and Rehtaeh Parsons.
Repeal Bill C-24, the Strengthening Canadian Citizenship Act, which creates two classes of Canadian citizens, imposes new burdens on permanent resident, and narrows access to the courts.
The recent news that the government will restore the Interim Federal Health Program was welcome, and the 2012 Order in Council that decreased funding for health services for refugee claimants and others seeking Canada’s protection should be repealed as soon as possible and prior to the arrival of Syrian refugees.
Review mandatory minimum sentencing laws, including the Safe Streets and Communities Act, 2012. Extensive research in the United States and in Britain demonstrates that mandatory minimum sentencing does not work. Several mandatory minimum sentences have been found unconstitutional by Canadian courts, and they interfere inappropriately with sentencing principles, the independence of the judiciary, and the Charter.
The commitment to introduce gender identity to the Canadian Human Rights Act is an important step. However, it was but one of a series of broader reforms needed to support both the Commission and the Tribunal to do their work more effectively. Many of the key reforms recommended in 2000 by the Canadian Human Rights Act Review Panel and a substantial number of them remain unimplemented. The recommendations of the Panel should be revisited in order to modernize Canada’s human rights system.
Re-establish the Law Commission of Canada in order to provide the government of Canada with an arm’s length, independent and systematic review of government legislation.
On freedom of expression and information:
Review the Values and Ethics Code for public servants and comparable codes or directives at the departmental levels. Political engagement by civil servants should be permitted, consistent with jurisprudence from the courts, respecting the obligation of loyalty and the ability to engage in political activity appropriate to the public servant’s position and public visibility.
Overhaul and modernize the Access to Information system by following the recommendations of Commissioner Suzanne Legault, including giving power to the Commissioner to compel disclosure of information, and by setting clear accountability for failure by government departments to release information in a timely manner.
On charities and the CRA:
“Work with the Ministers of Finance and National Revenue to develop a modernized regulatory and legal framework governing the Charitable and Not-for-Profit sectors”
Cancel the new $13.4 million program that targets progressive Canadian charitable organizations through political activity audits, and reorient those funds to ensuring that the Canada Revenue Agency has the budget and staff to investigate actual tax evasion by individuals and corporations.
Amend the Canada Revenue Agency guidelines to permit advocacy that is consistent with the organization’s mission and mandate and remove the arbitrary and punitive 10% and 20% limits on “political activities,” while retaining a full prohibition on partisan activity.
Analyze results in other jurisdictions, such as the UK, where an independent, arm’s length body called the Charity Commission, now determines charitable status;
Expand the list of charitable purposes by modernizing the list of categories so as to reflect contemporary Canadian values and priorities, beyond the current list that has essentially remained unchanged since the 17th century.
Work with the non-profit sector to establish an enabling environment by building a respectful relationship between the Canadian government and the non-profit sector, developing clear guidelines for funding and partnerships, and improving the regulatory environment. Potential steps include:
Re-establishing funding for women’s organizations, Indigenous organizations, migrant services groups, as well as environmental protection, international cooperation and human rights groups.
Providing Status of Women of Canada with the resources to champion the equality of women and re-establish Canada’s international position as a global leader in gender equality.
Ensure that when groups enter into contribution agreements with the Government of Canada, that the government has a duty of fairness to such groups in its contractual dealings.
Increase the tax credit for charitable giving on a par with political donations. People engage in different ways in Canadian society and the non-profit sector is a key avenue for personal, policy and political engagement. The current tax credit does not adequately reflect the role of the charitable sector as critical to our social infrastructure and community health.
On freedom of association:
Repeal Bill C-377, An Act to amend the Income Tax Act, which would eliminate the requirement that labour organizations make public and itemize details of all expenditures over $5,000, a requirement that is not made of private sector organizations.
Voices-Voix Coalition, Dec. 2015