Submission to the Committee on the Elimination of Racial Discrimination

Subject Matter

Submitted on the occasion of its consideration of Canada’s 21st-23rd periodic reports - July 2017

A summary version of the submission is provided in HTML. See PDF for complete version.

Cat. No.: HR4-118/2024E-PDF
ISBN: 978-0-660-70478-4

Executive summary

The CHRC is committed to working with the Government of Canada to ensure continued progress in the protection of human rights, including Canada’s implementation of the rights and obligations enshrined in the Convention on the Elimination of All Forms of Racial Discrimination (CERD). It is in the spirit of constructive engagement that the CHRC submits this report to the Committee on the Elimination of Racial Discrimination (the Committee) on the occasion of its review of Canada’s 21st – 23rd periodic reports.

Data on Equality Rights (Article 5)

The CHRC presented data from its reports on the equality rights of Aboriginal people and visible minoritiesFootnote 1, which confirmed the existence of barriers experienced by both groups in Canada in terms of employment, education, health care, housing and other basic needs. The CHRC also raised concerns about the existing employment equity regime in Canada. For instance, the existing regime tracks only federally-regulated jobs, labour market availability estimates are generally based on outdated information, and it is not clear that the designation of the four employment equity groups (women, persons with disabilities, visible minorities, and Aboriginal persons) continues to be appropriate.

Recommendation 1:

That Canada conduct a comprehensive review of the existing employment equity regime and make such changes as are necessary to increase the representation of members of visible minority groups and Indigenous peoples in the workforce.

Indigenous Peoples

The CHRC views the situation of Indigenous peoplesFootnote 2 in Canada as one of the most pressing human rights issues facing Canada today. The CHRC noted the contributions of the Indian Act to the ongoing discrimination and inequities faced by Indigenous peoples across Canada. The CHRC urged Canada to recognize the importance of adopting the United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP), and to develop a plan for implementation in consultation with Indigenous peoples. The CHRC also drew attention to the recommendations in the Final Report of the Truth and Reconciliation Commission of Canada (TRC).

Recommendation 2:

That Canada develop a concrete and specific strategy to implement the TRC’s 94 Calls to Action, including implementation of the UN DRIP, in consultation with Indigenous peoples.

The CHRC also noted the unique forms of discrimination and violence faced by Indigenous women and girls, and highlighted concerns with the implementation of the Government of Canada’s national inquiry into murdered and missing Indigenous women and girls, including failures to provide regular progress reports, and to build transparent and accountable relationships with families, survivors and external stakeholders.

Recommendation 3:

That Canada apply a human rights-based approach to conducting its inquiry into murdered and missing Indigenous women. This approach should examine the issue comprehensively and holistically, reveal barriers to equality and their root causes, recommend lasting solutions, and establish a way to monitor progress in achieving these. To ensure its credibility, the inquiry must ensure the access, participation and empowerment of Indigenous women and girls who are survivors of violence, and must treat these women not just as victims but as independent rights-holders.

The CHRC raised concerns regarding the unique barriers to human rights justice for Indigenous people, in particular section 67 of the Canadian Human Rights Act (CHRA), which prior to its repeal in 2008, had prevented individuals from filing discrimination complaints resulting from the application of the Indian Act. The CHRC also noted that roundtable meetings with Indigenous stakeholders revealed 21 barriers to access to justice faced by Indigenous women and girls, and committed to follow-up action to increase access to its processes for this group, while urging the government to take further action to address these barriers.

Recommendation 4:

That Canada develop a concrete and specific strategy to address the issue of access to justice for Indigenous peoples generally, and Indigenous women in particular.

The CHRC also noted concerns regarding the lack of access to quality health, education and other social services faced by many First Nations communities. Lack of clarity about service levels, the lack of a legislative base, the lack of an appropriate funding mechanism, lack of organizations to support local service delivery, and jurisdictional disputes contribute to service delivery limitations and failures. The CHRC also noted the intersectional barriers faced by Indigenous people with disabilities in particular, and encouraged consultation with Indigenous peoples and communities to address and eliminate these barriers.

Recommendation 5:

That Canada develop a concrete and specific strategy to ensure that services for Indigenous persons in First Nations communities, including Indigenous persons with disabilities, are equitable and adequate.

Recommendation 6:

That Canada implement Jordan’s Principle in a non-discriminatory manner that does not result in the denial of services to First Nations children.

Recommendation 7:

That Canada meaningfully consult First Nations, Métis and Inuit peoples during the development of accessibility legislation to ensure that Indigenous persons with disabilities have access to essential services. Canada should further ensure that First Nations communities are provided with adequate resources to enable them to fulfill their responsibilities under the new legislation.

The CHRC highlighted concerns that Indigenous peoples continue to be significantly disadvantaged in their enjoyment of important economic, social and cultural rights resulting in high levels of poverty, inadequate housing, food insecurity, unsafe drinking water and poor sanitation. Housing concerns in particular have reached a critical point among Indigenous populations. The CHRC also noted that unsustainable development including resource development, has been reported to have had a significant impact on some First Nations reserves, contributing to a lack of access to clean water and suitable sanitation. Northern Indigenous communities have been observed to be particularly vulnerable to the impacts of climate change.

Recommendation 8:

That Canada develop a concrete and specific strategy to address the housing situation on First Nations reserves on an urgent basis.

Recommendation 9:

That Canada work with Indigenous communities to promote sustainable development that balances consideration of environmental, social and economic well-being, and that adequately takes into account Indigenous peoples’ right to free, prior and informed consent.

The CHRC noted concerns regarding historical discrimination against women and children in the Indian Act. The CHRC amplified calls on the Government of Canada to amend or replace controversial provisions in the Indian Act that define who it will recognize as having “Indian status”.

Recommendation 10:

That Canada take all necessary steps to ensure that no residual discrimination exists in the Indian Registration System.

Recommendation 11:

That Canada review the Indian Act in consultation with First Nations people and replace it with an appropriate legislative framework.

Justice and Security Issues

The CHRC noted that ongoing concerns regarding racial profiling by police, security agencies, and other authority figures is a daily reality, reducing trust in public institutions, and having harmful impacts on Indigenous, Black, Muslim and other communities. The CHRC recommended that Parliament introduce legislation establishing an accountability regime for security organizations, including independent oversight, as well as requirements to collect and analyze human rights-based data and to make this information available to the public.

Recommendation 12:

That Canada ensure that all security organizations are subject to appropriate independent oversight. The membership of these bodies must reflect the principle of pluralism, for example, by including members of racialized communities, Indigenous peoples, persons with disabilities and LGBTQ individuals, and by ensuring appropriate gender balance.

Recommendation 13:

That Canada require all security organizations to collect and analyze human rights-based data in relation to their activities, and to account publicly for their performance.

The CHRC also noted ongoing concerns with the federal correctional system. These included the overrepresentation of vulnerable groups (in particular Black and Indigenous individuals) and the factors at the root of this overrepresentation (such as historical and systemic disadvantage and discrimination). The CHRC urged the government to take steps to address these root causes and to implement the Calls to Action of the Truth and Reconciliation Commission, as well as to consider how the preventive principles contained therein may be used to better understand and address the over-representation of other communities in vulnerable circumstances.

Recommendation 14:

That Canada develop a concrete and holistic strategy to address the over-incarceration of Black and Indigenous peoples on an urgent basis.

Recommendation 15:

That Canada provide the necessary training and resources to ensure that existing provisions relating to sentencing and alternatives to incarceration for Indigenous peoples are more fully understood and consistently applied.

Recommendation 16:

That Canada fully implement the Calls to Action of the TRC as they relate to the criminal justice system.

The CHRC also noted concerns regarding conditions of confinement for vulnerable groups, particularly Black and Indigenous inmates, as well as inmates with an identified mental health need. As with over-representation, there are complex and intersectional factors underlying the above realities, including institutional culture and a lack of adequate resources.

Recommendation 17:

That Canada effectively limit the use of segregation to exceptional circumstances, as a last resort and for as short a time as possible, in line with the Mandela Rules. Further, given its proven deleterious effects on mental health, Canada should abolish the use of segregation for inmates with mental health disabilities. Finally, recognizing the overwhelming majority of federally-incarcerated women suffer from past trauma and have an identified mental health need, Canada should place an immediate moratorium on the use of segregation for women in federal prisons.

Recommendation 18:

That Canada set hiring targets for CSC that better reflect the diversity of the prison population.

Recommendation 19:

That Canada develop a concrete and specific strategy to ensure that appropriate and culturally-relevant programming and services are available for all offenders, and in particular for Black and Indigenous offenders.

Recommendation 20:

That Canada develop a concrete and specific strategy to increase the capacity and effectiveness of treatment and programming for offenders with mental health disabilities.

The CHRC noted concerns regarding the situation of migrant detainees. Migrant detainees not serving a criminal sentence are often held in institutions intended for criminal populations, with limited access to services. In some cases, this may include children, often whom are held with relatives who have been held for immigration-related reasons. The CHRC echoed the recommendations made by advocates and civil society organizations regarding conditions in detention centres and advocating for independent oversight and monitoring of this practice. The CHRC also noted that many migrant detainees are not able to appropriately assert and claim their rights, and encouraged the extension of human rights protections under the CHRA to all individuals present in Canada, lawfully or not.

Recommendation 21:

That Canada establish a regime to ensure independent oversight and monitoring of migrant detention.

Recommendation 22:

That Canada ensure that migrant detainees are able to access human rights protections on an equal basis with all others present in Canada, including by repealing sections 40(5) and 40(6) of the CHRA.

Recommendation 23:

That Canada ensure that this legislation is supported by appropriate infrastructure, including comprehensive and appropriate data gathering, social policies and programs, and evaluations.

Trans and Gender Diverse Individuals

The CHRC noted that racialized and Indigenous transgender, gender diverse and two-spirited individuals in Canada experience multiple and intersecting forms of discrimination. The CHRC applauded the government for adopting legislation to add “gender identity or expression” to the list of prohibited grounds of discrimination in the CHRA.

Recommendation 24:

That the federal government and federally-regulated entities adjust policies and practices to align with the new legislation, taking into account the particularly vulnerable circumstances of racialized and Indigenous trans and gender diverse individuals.

Recommendation 25:

That Canada sponsor and/or support additional research and/or dialogue to better understand the issue of discrimination against trans and gender diverse individuals, including the particular causes and effects of discrimination on racialized and Indigenous trans and gender diverse individuals.

Economic and Social Status Protection

The CHRC noted the vulnerable circumstances experienced by many members of racialized communities as a result of multiple and intersecting forms of socio-economic disadvantage. The CHRC supported the addition of a ground of discrimination to the CHRA related to social or economic status to address these intersections, and to potentially better reflect and address the realities of discrimination faced by individuals in vulnerable circumstances.

Recommendation 26:

That Canada add an appropriate ground to the CHRA to protect individuals from discrimination relating to their economic and social status.