Submission to inform Canada’s response to recommendations made during the UN Human Rights Council’s Universal Periodic Review (3rd cycle)

August 2018

Contents

Introduction
A. Which recommendations should Canada consider accepting?
B. Which issues or recommendations should Canada prioritize?
C. What are some suggestions on how Canada could implement the accepted recommendations?

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Introduction

The Ontario Human Rights Commission (OHRC) welcomes the opportunity to provide input to the Government of Canada (Canada) as it prepares its response to the United Nations (UN) Human Rights Council’s draft Working Group report and recommendations on Canada’s third Universal Periodic Review (UPR).^[1] We trust that these submissions will also be of assistance to the Government of Ontario (Ontario) as it works with Canada to effectively implement human rights in Ontario.

The OHRC makes this submission in keeping with its mission to promote and enforce human rights, to engage in relationships that embody the principles of dignity and respect, and to create a culture of human rights compliance and accountability. We act as a driver for social change based on principles of substantive equality. We accomplish our mission by exposing, challenging and ending entrenched and widespread structures and systems of discrimination through education, policy development, public inquiries and litigation.

The OHRC also monitors and reports on the state of human rights in Ontario, provides advice to and cooperates with all levels of government, other human rights institutions and civil society organizations.

Canada has asked stakeholders to answer the following three questions to inform its response to recommendations made during the UPR:

• Which recommendations should Canada consider accepting?
• Which issues or recommendations should Canada prioritize?
• What are some suggestions on how Canada could implement the accepted recommendations?

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A. Which recommendations should Canada consider accepting?

The OHRC supports the June 2018 submission of the Canadian Human Rights Commission on the UPR. The OHRC also supports the UPR recommendations that civil society organizations have identified during Canada’s consultation session in Toronto.^[2]

The OHRC encourages Canada to ensure meaningful consultations with First Nations, Métis and Inuit (Indigenous) peoples consistent with their commitment to implement the UN Declaration on the Rights of Indigenous Peoples.

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B. Which issues or recommendations should Canada prioritize?

The OHRC proposes that Canada prioritize recommendations related to the following five areas:

1. Indigenous reconciliation
2. Criminal justice
3. Poverty
4. Education
5. Human rights accountability.

Recent consultations to inform our strategic plan and engagement with the OHRC’s Community Advisory Group confirmed that these areas are among the most pressing human rights issues. These priority areas are also identified in the OHRC’s current Strategic Plan and latest Annual Report. We believe they are pressing issues for all Canadians. Human rights issues in these areas are complex and require cooperation between all levels of government and nation-to-nation engagement with Indigenous communities.

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1. Indigenous reconciliation

Canada should prioritize recommendations related to:

• Effective legal and administrative measures and plans to promote and protect the human rights of Indigenous peoples^[3]
• Implementing the Calls to Action of the Truth and Reconciliation Commission (TRC)^[4]
• Indigenous child welfare^[5]
• Missing and murdered Indigenous women and girls.^[6]

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2. Criminal justice

Canada should prioritize recommendations related to:

• Ratification of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment^[7]
• Ending the practice of solitary confinement of prisoners^[8]
• Ending racial profiling and other forms of discrimination and harassment in policing and the broader justice system, including:
  
  • Ending arbitrary stops, searches, excessive use of force, investigations and arrests
  • Addressing the over-incarceration of racialized persons and people with mental health disabilities 
  • Enhancing training for law enforcement
  • Addressing the root causes of criminalization^[9]
• Developing community-centred mental health servcies that do not lead to institutionalization.^[10]

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3. Poverty

Canada should prioritize recommendations related to the adoption a human rights framework, including legislative and other measures, that: ^[11] 

• Recognize, provide effective remedies for, and make justiciable economic, social and cultural rights
• Ensure an adequate standard of living, including, housing, food, water, health, education and social security
• Ensure people living in poverty are not unduly criminalized
• Recognize and address the disproportionate impact of poverty on Indigenous peoples, racialized communities, persons with disabilities, etc.

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4. Education

Canada should prioritize recommendations related to:

• Accessible education for students with disabilities^[12]
• Addressing educational achievement gaps for Indigenous and racialized students and the intersections with gender and poverty^[13]
• Promoting human rights education^[14]
• Ensuring comprehensive and equal access to education on human sexuality.^[15]

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5. Human rights accountability

Canada should prioritize recommendations related to:

• Enhanced coordination mechanisms across federal, provincial and territorial levels for ratifying, implementing, monitoring and reporting on interdependent and indivisible human rights treaty obligations^[16]
• Human rights data collection^[17]
• Effectively responding to hateful and racist attacks and offences against Black people and other ethnic and religious groups, including providing assistance to victims of violence^[18]
• Effective initiatives and programs to address racial discrimination.^[19]

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 C. What are some suggestions on how Canada could implement the accepted recommendations?
 

1. Indigenous reconciliation

Government actions for implementing the UPR recommendations related to Indigenous reconciliation should include:

• Making a binding commitment and taking steps to formally recognize and effectively implement the UN Declaration on the Rights of Indigenous Peoples through legislation, an action plan and other means
• Implementing and monitoring the TRC’s Calls to Action in collaboration with Indigenous communities, having regard for their priorities, and reporting annually on progress
• Identifying and addressing potential systemic racial discrimination in the child welfare sector, including addressing the broader social and economic issues that contribute to the over-representation of Indigenous and Black children in child welfare, through a multi-pronged response from government, Children’s Aid Societies and civil society^[20]
• Identifying and addressing discrimination in police investigations of missing and murdered Indigenous women and girls^[21]
• Measuring for equitable outcomes and reporting publicly.

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2. Criminal justice

Government actions for implementing the UPR recommendations related to criminal justice should include:

• Accountability for racial profiling in policing through effective legislative, regulatory and other measures to end it, including:
• Clear rules for what incidents fall within the jurisdiction of police special investigations units and when they must be reported
• Creating greater transparency in reporting from oversight agencies
• Arms-length investigation of police misconduct complaints, and an independent tribunal to oversee and impose meaningful disciplinary measures
• Clear lines of accountability between police services and their boards
• Sustainable culture change through mandated training, demographic representation on police services boards
• Creating community safety and well-being plans that address systemic discrimination
• Making the collection of human rights-based data mandatory for all police services and all police oversight agencies.^[22]

• Timely implementation of international treaty obligations and judicial orders related to segregation (solitary confinement) through effective legislation, policies and practices that:
  
  • Better identify and prohibit the use of segregation for vulnerable prisoners, such as people who are chronically self-harming, suicidal or have other mental health disabilities, require assistive devices, or are pregnant or have recently given birth
  • Set strict segregation time limits of 15 continuous and 60 aggregate days in a year
  • Make segregation placement decisions subject to arms-length review and oversight in correctional institutions
  • Provide prisoners and their legal representatives with relevant information and opportunities to challenge segregation placements, without limiting the right to challenge placements through a habeas corpus application to the courts
  • Define segregation based on conditions of confinement, and require that all comparable placements be subject to legal protections
  • Ban solitary confinement for people with mental illness
  • Create or improve systems to identify prisoners with mental health disabilities, accurately track segregation use, and monitor the health of anyone placed in segregation
  • Independently monitor places of detention, as called for under the Optional Protocol to the Convention Against Torture
  • Report annually on meeting these human rights standards^[23]
• Addressing the social and economic root causes of the over-representation of Indigenous and Black people and people with mental health disabilities and addictions in the criminal justice system, including the “school-to-prison pipeline,” as well as alternatives to incarceration of non-violent drug users.

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3. Poverty

Government actions for implementing the UPR recommendations related to poverty should include:

• Adopting a human rights-based framework and approach to poverty reduction, housing, homelessness and hunger
• Creating and strengthening poverty reduction and affordable housing legislation and strategies that:
  
  • Explicitly recognize the right to an adequate standard of living, including, access to housing, water and food as well as social security as defined in international law
  • Refer to the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the UN Declaration on the Rights of Indigenous Peoples and other international human rights instruments when addressing poverty
  • Clearly set out the obligation of all levels of government to progressively implement the right to an adequate standard of living in a timely way
  • Commit to addressing systemic inequality in poverty based on disability, gender, race, gender identity, and age, prioritizing those most in need
  • Commit and begin the process of developing separate Indigenous poverty reduction and housing strategies, including strategies for urban Indigenous people, in partnership with Indigenous leaders, service providers and community organizations
  • Provide an accessible, effective public process for hearing, adjudicating and remedying systemic issues related to poverty
  • Establish measurable goals, indicators and timelines and ensure robust, independent monitoring of progress by a body with jurisdiction to address systemic issues and hold government accountable, including provincial accountability for meeting people’s basic needs with funding received through the Canada Social Transfer^[24]
• Ensuring human rights legislation includes “social condition” as a prohibited ground of discrimination^[25]
• Ensuring that legislation, policies and practices do not criminalize street-involved and homeless people for being poor, rather than promote public safety.^[26]

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4. Education

Government actions for implementing the UPR recommendations related to education should include:

• Ensuring Indigenous and racialized children and youth have equal access to education
• Ensuring inclusive and accessible education for children with disabilities,^[27] including for First Nations children who live on reserve^[28]
• Ensuring that special education legislation, policies and accessible education standards reflect human rights principles and the responsibilities set out in human rights legislation
• Ensuring curriculum and schools teach children about human rights and responsibilities^[29]
• Ensuring curriculum that is broadly inclusive of all children, including girls as well as LGBTQ students and families.

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5. Accountability

Government actions for implementing the UPR recommendations related to human rights accountability should include:

Promoting human rights

• Recognizing the interdependent and indivisible nature of all human rights, and understanding that civil and political rights cannot be realized without economic, social and cultural rights, and that all rights are to be enjoyed equally without discrimination
• Recognizing the intersectional nature between multiple grounds of discrimination, especially race, gender and disability
• Mandating, with protocols, the collection and reporting of human rights-based data, especially race-based data, disaggregated by specific groups, across government services especially in the key sectors of policing, corrections, education, child welfare and health, at key points and phases of people’s involvement in a system, as well as data on the representation of vulnerable groups working in these sectors; and addressing issues that the data reveals.^[30]

Human rights implementation

• Negotiating a new nation-to-nation approach towards implementing the Universal Declaration on the Rights of Indigenous Peoples
• Addressing complex human rights problems through cooperation between federal, provincial and territorial governments, and with Indigenous communities, including through regular meetings of federal-provincial-territorial ministers responsible for human rights, human rights commissions and civil society organizations^[31]
• Creating and strengthening mechanisms and coordination for implementing, monitoring and reporting on human rights obligations, including a senior-level accountability mechanism, with adequate long-term resources, across governments
• Modernizing federal-provincial-territorial human rights statutory frameworks.

Anti-racism^[32]

• Unequivocally calling out egregious and systemic forms of discrimination, especially Islamophobia, antisemitism, anti-Black racism, and anti-Indigenous racism when it happens
• Implementing a measurable anti-racism strategy with targets and indicators
• Applying an anti-racism lens in developing, implementing and evaluating government policies
• Establishing and appropriately funding anti-hate and anti-racism initiatives and programs, including police training on hate crimes identification and data collection.

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