OHRC Policy statement on human rights in COVID-19 recovery planning

 

Overview

Since March 2020, COVID-19 has taken a stark health, social and economic toll on communities, with more than 9,750 lives lost in Ontario, 28,000 lives lost in Canada[1] and over 4.5 million lost worldwide.[2] But the impact of this pandemic has not been felt equally. The most vulnerable groups in Canadian society have been disproportionately negatively affected. A 2021 Statistics Canada study on the labour market during the pandemic reveals the unemployment rate among Black Canadians is about 70% higher than White Canadians.[3] Also, recent data confirms that 50% of Toronto’s COVID-19 cases have been people with low incomes. Almost 80% of the cases are racialized individuals, who only represent 51% of the overall population.[4]

The COVID-19 pandemic has resulted in a health, social and economic crisis of unprecedented scope. Human rights provide a way to both understand and address the systemic challenges that have come to define this moment in history – unequal access to health protection and deepening levels of poverty. Recovery must be fair and equitable for all, not only for certain members of society. A human rights framework provides a path to this goal.

The OHRC and many other domestic and international human rights organizations are urging governments around the world to recognize the imperative and seize the opportunity to implement COVID-19 recovery planning in a way that respects and protects the full range of human rights. COVID-19 has shown in a multitude of ways that the health and well-being of all people are interdependent, and that everyone benefits from placing substantive equality and human rights at the core of recovery planning.

A human rights-based approach to recovery means we will be better prepared for another global crisis, such as those that may arise due to climate change, and will help us to address, at their roots, the profound and deadly inequalities that have been exposed during the pandemic. Vulnerable groups protected under Ontario’s Human Rights Code (Code) have the right to receive the full and equal benefit of any strategy, policy or program enacted as a COVID-19 recovery measure. Now is the time to make sure the people and communities most burdened by the pandemic are not also sidelined by the recovery.

 

Impact on vulnerable groups

Dr. Theresa Tam, Canada’s Chief Medical Officer of Health, says that from the first year of the pandemic she learned: “we failed the most vulnerable.”[5] While Dr. Tam was explicitly referring to residents and workers in long-term care homes, this sentiment can be applied to many Code-protected groups. In “From risk to resilience: An equity approach to COVID-19,” the Government of Canada noted that racialized groups are also over-represented in reported COVID-19 cases, and people from lower-income households (where the household income is less than $50,000) were just over half of reported COVID-19 cases.[6] Here in Ontario, racialized communities and people experiencing poverty have higher rates of hospitalization and Intensive Care Unit (ICU) admission with specifically high rates for Latin American and South Asian communities.[7]

National data shows that women in Canada are more likely to get COVID-19 and die from it than men.[8] Over half of all female workers in Canada (56%) are employed in occupations involving the “5 Cs”: caring (health care, childcare, long-term care), clerical, catering, cashiering and cleaning.[9] One driver for increased COVID-19 risk is participation in feminized work where women make up 90% of Canadian nurses, 75% of respiratory therapists and 90% of personal support workers in long-term care and nursing homes.[10] Also, one in three Canadian women have considered quitting their jobs to take on additional childcare responsibilities related to virtual education, a decision a disproportionate number of Black and Indigenous women have had to make.[11]

For the most part, designing and delivering pandemic response policies and programs did not include the voices of people with lived experience of poverty, or who faced barriers in accessing health protections.[12] Before COVID-19, people with lived experience of inadequate housing, poverty and disability faced barriers when engaging in policy processes, and they have had very few opportunities to provide input into the forums leading the COVID-19 response.[13] Consulting with vulnerable groups and the people most affected by the pandemic is vital to a human rights-based recovery.

The COVID-19 pandemic has exposed, and will be defined by, the interdependence of human rights conditions. Individuals and groups who struggled to keep their housing, who struggled to feed their families and who were unable to stay home during lockdowns, died in larger numbers and suffered disproportionate impacts on their rights to access education, health, housing and other supports. [14]

 

Purpose

The OHRC developed this policy statement[15] to:

• Promote awareness about the negative impacts and entrenched systemic inequality exacerbated by the COVID-19 pandemic on individuals and groups protected by the Code
• Establish human rights principles to guide governments and service providers in recovery planning, policy and program design and implementation
• Promote the positive obligation of governments and service providers to examine sources of discrimination and inequitable conditions by applying a human rights lens and equity audit to all legal analysis and policy decision-making
• Promote compliance with the Code duty to make sure all vulnerable groups benefit equally from any legislation, policies, programs and requirements designed to promote pandemic recovery.

This policy statement applies to organizations that provide services and employ people within the meaning of sections 1, 2 and 5 of the Code,[16] including provincial and municipal governments, and broader public sector organizations.

This policy statement also applies to discriminatory situations under sections 1, 5 and 11[17] of the Code involving policies, programs and requirements that have an adverse effect on groups protected by the Code.

In this policy statement, “vulnerable Code-protected groups” refers to:

• First Nations, Inuit and Métis peoples and communities, including urban, rural, remote and Northern communities
• Black and other racialized communities
• Workers in precarious employment and foreign temporary and migrant workers
• People experiencing poverty, living in shelters, who are street-involved or at risk of homelessness
• Women and children facing gender-based harassment and violence  and/or child abuse
• Single parents
• People with disabilities, including mental health disabilities and addictions
• LGBTQ2S+ people
• Older persons
• People living alone or in government-run institutions
• Recent immigrants, refugees and undocumented individuals
• Prisoners.

 

Policy position

Ontario’s Code gives everyone equal rights and opportunities without discrimination in areas such as jobs, housing and services. The Code’s goal is to prevent and protect against discrimination and harassment and promote substantive equality based on race, sex, disability, age and 13 other protected grounds.

Under human rights law, all levels of government have obligations to make sure individuals receive equal benefit from public programs and are not subject to unequal burdens. Given the disproportionate burden that vulnerable groups shouldered through the COVID-19 pandemic, governments[18] must make sure that (a) vulnerable Code-protected groups receive the full and equal benefit of any strategy, policy or program enacted as a COVID-19 recovery measure, and (b) proactive steps are taken to relieve vulnerable groups of the disproportionate harms and disadvantages they have suffered.

Governments, service providers, housing providers and employers have an obligation under the Code to take positive action towards substantive equality.[19] This means that organizations must work to proactively identify and remedy the disproportionate impact that laws, policies or systems have on vulnerable groups.[20]

At the government level, these obligations are further supported by Canada’s and Ontario’s obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR), which Canada ratified in 1976. The ICESCR requires governments at all levels to “progressively realize,” according to “maximum available resources,” rights to an adequate standard of living, including education, health care, food, shelter, social security, and other essential goods and services for human dignity and survival.[21]

As Canada and Ontario work towards implementing the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration), obligations to secure substantive equality and uphold the rights of First Nations, Inuit and Métis peoples must also be central to pandemic recovery.

As governments embark on fiscal and economic recovery from COVID-19, which may include austerity measures and a withdrawal of COVID-19-related supports, human rights obligations (specifically economic and social rights obligations to protect vulnerable groups) must still be met. The United Nations’ Committee on Economic and Social Rights has stressed the obligation of states to justify austerity measures or “reductions in spending for public services that have proved critical to economic and social rights.”[22]

For recovery to benefit all people equitably, the voices of the people most affected must be heard every step of the way. Moving beyond tokenistic advisory roles to a rights-based approach to consultation requires centralizing the experiences and needs of vulnerable communities in local recovery planning processes, and when developing provincial policies and programs. This will result in more effective responses to local needs, enhance community leadership, and leverage the expertise and knowledge of vulnerable groups and people with lived experience and the organizations that serve them. Consultation processes themselves are best developed in collaboration with community organizations, and barriers to participation (such as material and technological barriers to joining tables/attending meetings) must be removed.

Engaging the human rights principles contained in this policy statement will result in evidence- and human rights-informed approaches to recovery planning, policy and program design. Rooting the pandemic recovery in human rights principles and proactively taking equity into account will support governments and service providers in meeting their legal obligations to eliminate discrimination and advance substantive equality.

 

Human rights principles for COVID-19 recovery

1. Using evidence-informed approaches, prioritize the rights and needs of the communities hardest hit by the health, economic and social impacts of the pandemic, and make sure these communities benefit equally from any legislation, policy, program or requirement designed to promote pandemic recovery

• Recognize that all levels of government must work together to mitigate and address the potential generational impacts of COVID-19 on Code-protected groups by urgently addressing education, job, income and housing loss as well as related impacts on mental health
• Recognize that to live free from poverty is a human right and is interdependent with other human rights[23]
• Recognize the obligation to progressively realize the right to housing as affirmed in the National Housing Strategy Act (NHSA)[24]
• Realize the right to equal treatment in education for vulnerable groups who experienced disproportionate impacts due to school closures (such as lack of access to technology and other supports including access to culturally appropriate learning materials).

 

2. Recognize, uphold and promote the rights of First Nations, Inuit and Métis (Indigenous) peoples

• Recognize and uphold First Nations, Inuit and Métis peoples’ respective rights to self-determination and self-government, and support them in leading recovery in their communities and to benefit equally from recovery initiatives
• Recognize that the impact of COVID-19 on First Nations, Inuit and Métis communities has been exacerbated by the ongoing negative impacts of colonialism, and has had a unique, intersectional impact on First Nations, Inuit and Métis women and children, people living with disabilities or addictions, older persons, etc.
• Recognize and uphold government obligations to all Indigenous children under Jordan’s Principle[25] and the Inuit Child First Initiative
• Recognize and uphold the right to adequate and affordable housing, safety and security especially for women and girls, safe drinking water, and access to and participation in culture as primary determinants of health, dignity and well-being
• Adopt respectful, collaborative engagements and partnerships with diverse First Nations, Inuit and Métis governments, communities, organizations and knowledge-keepers to ensure that government COVID-19 recovery initiatives reflect the diversity of Indigenous community needs and realities, including urban Indigenous communities, and are culturally safe
• Engage and consult with First Nations, Inuit and Métis peoples early and often and obtain the “free, prior and informed consent” of affected First Nations, Inuit and Métis peoples before adopting and implementing legislative, administrative, policy, budgetary or regulatory measures for COVID-19 recovery that may affect them, consistent with the United Nations Declaration on the Rights of Indigenous Peoples.

 

3. Mandate socio-demographic data collection across all sectors on the impacts of the pandemic and efficacy of the recovery plan, and use that data to inform decision-making and evaluate outcomes

• Work on data governance with the communities most affected and collect human rights data on the recovery, disaggregated by the grounds of Indigenous ancestry, race, ethnic origin, place of origin, citizenship status, age, disability, sexual orientation, gender identity, social condition, etc. and make decisions based on that data
• Regularly monitor, disseminate and publicly report on the human rights impacts, outcomes and inequalities related to recovering from the COVID-19 pandemic, and on how data is informing decision-making
• Respect Indigenous data sovereignty and support Indigenous governments, communities and organizations to collect, analyze and govern data on the impacts of the pandemic and recovery initiatives on Indigenous peoples
• Recognize that the lack of disaggregated socio-demographic data going into the pandemic created challenges for managing the pandemic (for example, in resource allocation and vaccine roll-out), and limited the ability to tailor pandemic responses based on social determinants of health.

 

4. Address the root causes of systemic discrimination in all human services

• Recognize and uphold everyone’s right to access services, including healthcare services, without discrimination
• Recognize and uphold the proactive duty of governments and service providers to design and implement policies and programs to prevent discriminatory effects from the outset, by applying a human rights lens at the planning stage
• Recognize that it is unacceptable for an organization to choose to remain unaware of systemic discrimination, or to fail to act when a problem comes to its attention[26]
• Recognize that to fully realize human rights in human services, system-wide organizational change strategies are required to eliminate systemic discrimination, and strategic planning must include equity as a priority outcome.

 

5. Strengthen human rights accountability and oversight

• Conduct transparent human rights and equity audits of recovery policies, programs and budgets to make sure equity risks are identified, human rights duties are met to target Code disparities, and to show how well government is using its available resources to meet human rights obligations[27]
• Undertake performance monitoring and reporting of equity indicators and targets, including socio-demographic data collection (as in #3)
• Recognize the need to institute formal recovery planning advisory roles for First Nations, Inuit and Métis knowledge-keepers, representatives of human rights commissions and vulnerable groups most affected by COVID-19, on recovery task forces, special committees and working groups.

 

6. Recognize that for all people to benefit equally from any legislation, policy, program or requirement designed to promote recovery from the pandemic, decision-making must be informed by ongoing, rights-based consultation with vulnerable groups

• Recognize that Code-protected groups, including groups most affected by the pandemic, and the organizations that serve those groups, must be consulted in coordinated and systematic ways throughout recovery planning, policy and program design, implementation and monitoring
• Recognize that commitments to open government, accountability and evidence-based decision-making cannot be met unless informed by the expertise of people with lived experience and the organizations that serve them.

 

Conclusion

Data has shown that the COVID-19 pandemic has exacerbated existing inequalities for vulnerable and Code-protected groups. Without a deliberate human rights-based approach to recovery, the pandemic will continue to entrench these inequalities.

Recovery must be fair and benefit everyone equally. Many groups were particularly vulnerable to negative impacts from COVID-19 precisely because their economic, social and cultural rights, rights to equality and Indigenous rights have not been effectively protected or realized in Ontario and Canada over many decades.

Using a human rights-based approach to pandemic recovery planning offers a unique opportunity to benefit everyone, including racialized, marginalized and disproportionately affected groups, for generations to come.

 

Appendix

Potential policy and program actions consistent with a human-rights based approach to COVID-19 recovery

Groups protected under Ontario’s Human Rights Code have the right to receive the full and equal benefit of any strategy, policy or program enacted as a COVID-19 recovery measure.

This appendix sets out various short- and medium-term actions governments can take that are broadly consistent with a human rights-based approach to recovering from the pandemic.

These actions are neither comprehensive nor exhaustive. Instead, they are a compilation of possible responses that are consistent with Canada and Ontario’s human rights obligations, and have been informed by OHRC policies, engagement with OHRC Advisory Group members and Indigenous peoples.

 

Poverty

• Income supports: Enhance income support provided to people receiving social assistance. Current rates are inadequate to meet basic food and shelter needs
• Housing first: Support and implement “Housing First” programs as a recovery-oriented approach to quickly move people experiencing homelessness, including living in encampments, into independent and permanent housing, and provide supports and services as needed
• Guaranteed incomes:[28] Guarantee a decent standard of living to allow people to protect their health and secure housing and food during and after COVID-19, and again during any future emergency
• Essential goods: Ensure the availability and affordability of food and other critical household goods such as soap and sanitary products, especially for vulnerable groups who are experiencing permanent job loss and deep poverty
• Advocate for decriminalizing controlled substance use: Address the dramatic increase in opioid-related deaths by advocating for decriminalizing controlled substance use, and continue to create and fund Mental Health Crisis Response Units. These units combine trained mental health professionals and police officers to respond to identified low-risk crisis calls and wellness checks.

 

Housing/evictions

• Rent relief: Continue rent relief programs to help individuals and families in Ontario facing elevated eviction risk as a result of arrears accumulated during the pandemic, mitigating the risk of increasing housing insecurity and homelessness. Programs should be designed in consultation with tenants, legal clinics, and other interested service providers
• Housing benefits: Partner with the Government of Canada to enhance the Canada-Ontario Housing Benefit to assist individuals experiencing housing insecurity and homelessness in the face of the growing affordable housing crisis
• Grow supply: Invest meaningfully to grow the social and affordable housing stock in Ontario, and regulate development activity to protect and preserve the current affordable housing stock
• Repurpose assets: Purchase or reallocate distressed assets and other buildings to be used as public housing to address immediate short- and longer-term needs of people who are experiencing homelessness or who are at risk of becoming homeless
• The Landlord and Tenant Board: To address concerns that were exacerbated by the pandemic, the LTB should:
  
  1. recognize and act on their positive obligation to address systemic discrimination
  2. provide tenants with clear and accessible options for in-person hearings in addition to digital hearings
  3. provide tenants with appropriate and timely access to counsel
  4. collect socio-demographic data to inform decision-making and evaluate outcomes
  5. consult with tenants and legal aid clinics on any further changes at the LTB, including implementing and developing the Digital First strategy.

 

Employment

• Paid sick leave: Introduce legislation providing for permanent, employer-paid sick days to workers. This is critical in making sure workers’ rights, especially essential workers who have been at the forefront of responding to the COVID-19 pandemic, are prioritized in the recovery
• Safe work: Strengthen and develop standards that protect all workers by preventing precarious and substandard working conditions for all workers, regardless of immigration status or sector of employment, including the gig-economy and migrant work
• Skills building: Enhance and build on targeted skills development for women and other Code-protected groups that have been disproportionally affected by permanent pandemic-related job loss.

 

Health

• Data collection: Ontario’s health and public health systems should standardize the collection of sociodemographic data through health card registration and renewal, to monitor for and address health inequities
• Address discrimination: The health system should apply anti-racist, anti-ablest and anti-discrimination approaches to identify systemic causes of health inequities
• Community and mental health: Provide funding and resources to support community health and mental health, with a priority focus on Code-protected groups, to counter the health impacts of the pandemic.

 

Women and girls

• Life stabilization for women and families: Increase gender-focused investment in a range of supportive and affordable housing options, affordable public transportation, and income supports for new mothers and women with unpaid care responsibilities, to incentivize labour market participation and ease long-term reliance on income assistance programs
• Implement universal child care: Access to affordable and high-quality child care is foundational to women’s employment, skills development and poverty alleviation. Workforce recovery requires rigorous, long-term support for Ontario’s child care system
• Gender-based violence services: Increase and stabilize multi-year funding for front-line organizations and agencies serving survivors of gender-based violence and child abuse
  
  • Undertake public awareness campaigns to address how survivors of gender-based violence and child abuse can access services
• Indigenous women and girls: Implement the recommendations in Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls.

 

Recovery planning bodies

• Representation: Make sure recovery planning bodies at all government levels include representation from:
  
  • Human rights offices and institutions
  • Vulnerable groups
  • People most affected by the COVID-19 pandemic
• Coordinated: Make sure recovery planning bodies at all government levels coordinate efforts across federal, provincial, territorial, regional, municipal and Indigenous jurisdictions.

 

Correctional and residential institutions

• Health care: Provide adequate health care, including mental health care, and ensure continuity of care-giving support relied on by older people and people with disabilities and others living in residential institutions
• Emergency planning:  Adopt a public health approach to managing prisoners and people in government-run or regulated institutions including:
  
  • Ensuring emergency plans are regularly reviewed and updated in light of the COVID-19 pandemic and approved by public health officials before being finalized

• Contact visits: Have comprehensive and transparent decision-making and policy restrictions on face-to-face or contact visits that are necessary, legitimate and proportionate to prevent or respond to COVID-19 outbreaks
  
  • Compensate for any necessary restrictions on contact visits by increased access to alternative means of communication such as email, telephone or video calls.
• Overcrowding: Make all reasonable efforts to continue to reduce overcrowding within custody or other facilities, without discrimination, by:
  
  • Creatively using all existing discretionary release legal or policy provisions including work releases, temporary absences, compassionate releases, medical releases
  • Releasing or managing in the community individuals who do not pose a risk to the public, including people who are in pre-trial detention for or have been convicted of non-violent or less serious offences
  • Releasing or managing in the community individuals with limited time left in their sentences
  • Issuing compassionate releases for vulnerable prisoners, including older people, pregnant women, people with compromised immunity, people with mental health disabilities, etc.
  • Releasing immigrant detainees who do not pose a risk to the public
  • Expanding probation resources in the community, including redeploying correctional officers (by telephone)
• Data collection: Take steps to standardize data collection related to managing COVID-19, including associated lockdowns, segregation, isolation, etc., disaggregated by human rights grounds.