COMMITTEE ON THE ELIMINATION
OF RACIAL DISCRIMINATION

CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 9 OF THE CONVENTION

Concluding observations of the Committee on the
Elimination of Racial Discrimination

Canada

 

298. The Committee considered the eleventh and twelfth periodic reports of Canada (CERD/C/210/Add.2 and CERD/C/240/Add.1) at its 1043rd and 1044th meetings, held on 2 August 1994 (see CERD/C/SR.1043 and 1044).

299. The report was introduced by the representative of the State party who stated that responsibility for implementing the Convention in Canada was shared between the federal, provincial and territorial governments.

300. He referred to initiatives that had been taken in the enforcement and administration of laws to deal with the problem of racial discrimination, especially after incidents in recent years between the police and members of visible minorities. Institutions responsible for the administration of justice had also responded to increasing concern about crimes aimed at specific ethnic or racial groups and the Canadian Judicial Council supported comprehensive education for the judiciary on a variety of social issues, including race matters.

301. Reference was also made by the representative of Canada to his Government's initiatives in the processes for negotiating land claims and for developing governmental arrangements with aboriginal groups. He stated, in particular, that the Statement of Political Commitments of the federal Government concerning the Mushuau Innu community in Davis Inlet had been accepted by the Band Council in April 1994 and that the Royal Commission on Aboriginal Peoples had recently completed an extensive research and public consultation process, involving visits to communities across Canada.

302. Members of the Committee welcomed the legal and other measures that Canada had taken at both the federal and the provincial level to combat racial discrimination. However, considerable efforts had still to be made to improve the situation of immigrants, especially those coming from Africa and Asia, minorities, and aboriginal people.

303. Members expressed appreciation for the detailed information provided but noted that the reports did not address certain important issues, such as the practical implementation of the Canadian Charter of Rights and Freedoms; the developments concerning the initiatives taken by the Canadian Human Rights Commission to have the Charter amended to give human rights provisions precedence over other laws; the steps taken to solve the conflicts between Mohawk communities and Canadian authorities over land in the municipality of Oka; the constitutional reforms, especially with regard to the question of the definition of aboriginal people; the results of the census of June 1991; and the health conditions of the aboriginal people.

304. Members of the Committee wished, in particular, to receive clarification on the responsibilities for the areas covered by the Convention exercised by the federal Government and by the provincial and territorial governments of Canada. It was noted that human rights issues were mainly dealt with by the provincial governments. Members asked whether the Government of Canada would consider amending the Constitution to ensure that all fundamental human rights issues were subject to federal rather than provincial law so as to harmonize all the existing provisions and avoid inconsistencies. In addition, reference was made to a letter addressed to Committee members by the Canadian Council of Churches containing several remarks on the implementation of the Convention in Canada, as well as the suggestion that the Canadian Human Rights Commission could serve as a national authority under article 14 of the Convention. In this connection, attention was drawn to general recommendation XVII (42) on the establishment of national institutions to facilitate the implementation of the Convention and it was asked whether Canada would consider making the declaration to recognize the competence of the Committee to deal with individual communications provided for in article 14 of the Convention.

305. With reference to article 1 of the Convention, members of the Committee wished to know which specific laws and rules regulated immigration, whether immigration was a matter for the provincial rather than the federal authorities and whether immigrants had the opportunity to maintain their cultural identity. They also wished to receive a clear explanation of the meaning in Canadian society of the expressions "identifiable groups" and "visible minorities".

306. With regard to article 2 of the Convention, members of the Committee referred to information received from non-governmental sources according to which immigrants from Africa and Asia were less well treated in Canada than immigrants from Europe and in some cases were subject to systematic discrimination. They asked, in this connection, what the basic educational requirements were for recruitment into the police force, whether the Government of Canada was seeking to intensify human rights training programmes for law enforcement officials in accordance with general recommendation XIII (42) and how the Canadian legislation dealt with asylum seekers and economic migrants. Members of the Committee also referred to the amendments to the Indian Act adopted in 1985 to remove discriminatory provisions and asked several questions on the practical consequences of those amendments, especially in the light of the fact that the Canadian Commission on Human Rights in 1990 had described the amendments as paternalistic relics of the past, incompatible with Canada's domestic and international obligations. Furthermore, they wished to receive more detailed information concerning the development of the negotiations between the Canadian authorities and the aboriginals with regard to comprehensive land settlement and self-government agreements in various provinces. It appeared that such negotiations were proceeding at an extremely slow pace and that few new agreements had been concluded. More information was also requested about the community-based aboriginal justice programmes and the Federal-Provincial-Territorial Working Group on Multiculturalism and Race Relations in the Justice System; social indicators concerning aboriginal people, in particular, the rates of infant mortality, alcoholism, drug abuse, delinquency, imprisonment and suicide; the Police-Minority Youth Summer Employment project; the action taken by the federal Government to solve the problems of the Indians at Oka and the Mohawk communities of Kanesatake and Kahnawake after the incidents of the summer of 1990; the work done by the Royal Commission on Aboriginal People, and the steps taken by the Law Reform Commission to ensure equal access of aboriginal persons to justice.

307. With reference to article 4 of the Convention, members of the Committee wished to receive information about the scope of a decision taken by the Supreme Court in 1992 concerning section 181 of the Canadian Criminal Code. That provision, which made it a criminal offence to publish a false statement likely to cause injury to the public interest, was ruled to be inconsistent with the guarantee of freedom of expression in section 2 (b) of the Canadian Charter of Rights and Freedoms. Members also asked whether there were differences in the scope of activities of human rights bodies in the different provinces and whether their activities were consistent with article 4 of the Convention. More information was requested concerning the influence among young people of the so-called "hate groups".

308. Concerning article 5 of the Convention, members of the Committee regretted that the reports lacked information in particular on the implementation of the right to health, especially with regard to aboriginal people, and asked for information about the national native alcohol and drug abuse programme and on how the aboriginal people perceived the programme. Members of the Committee drew particular attention to the Employment Equity Act and regretted that it was only applicable to limited categories of workers. They asked why the Canadian Human Rights Commission had no direct responsibility for enforcement of the Employment Equity Act, whether there was any mechanism to implement that Act, and why aboriginal people were not fully represented in the workforce, especially in higher levels of employment. More information was also requested about employment, education and religious freedom, particularly in respect of small minority groups, the actual achievements of the Employment Equity Working Group for Aboriginal Employees, and the extent to which aboriginal people and immigrants enjoyed effective access to the justice system.

309. With regard to article 6 of the Convention, members of the Committee stated that, according to the information received, it was doubtful whether the provincial judicial systems in Canada fully met the requirements of that article. They also asked for information on the joint federal/provincial initiative under way to create a Canadian police race relations centre, as well as on the functions, composition and rulings of the human rights tribunal established under the Canadian Human Rights Act. In addition, information was requested about the number of complaints of racial discrimination, the action taken in that regard and the effectiveness in practice of the remedies available.

310. In connection with article 7 of the Convention, members of the Committee generally welcomed the various measures taken in Canada to combat racial prejudice and promote multiculturalism. They wished to know, in particular, what the impact was of the new Broadcasting Act, whether all languages spoken in Canada were used in radio and television broadcasting, to what extent aboriginal languages or dialects were used, and whether it was possible for aboriginal groups to establish regional broadcasting operations. More information was also requested about the achievements in practice of federal multiculturalism programmes.

311. In their reply, the representatives of Canada said that the structure of their Government's report was imposed by constitutional principles of cooperation between the federal authorities and the provinces and territories, but account would be taken of any suggestion on presentation that was compatible with constitutional requirements.

312. They also said that, under the Constitution, responsibilities were clearly divided between the federal Government and the provinces and shared only in a few specific areas. Only the federal authorities were empowered to sign international treaties, but they could not oblige the provinces to amend their legislation to give effect to the provisions of those treaties because matters within their exclusive jurisdiction were involved, as in the case of many human rights texts. Machinery for permanent consultation with the provinces and territories on the signature and implementation of international instruments nevertheless existed.

313. The Canadian Charter of Rights and Freedoms, which guaranteed a great many fundamental rights and freedoms and prohibited any form of discrimination, had been incorporated in the Constitution of Canada since 1982 and was part of the supreme law of the country. The federal Government and all of the provincial governments were bound by the Charter. With regard to the 1977 Canadian Human Rights Act, the representatives of Canada explained that jurisdiction in respect of human rights was divided between the federal Government and the provincial governments, which enacted laws and codes dealing primarily with discrimination. The implementation of the codes was usually ensured by bodies independent of the Government. In the event of failure to implement them, a complaint could be brought before a court. A provision was under consideration to give the Canadian Human Rights Act precedence over any other act.

314. With regard to article 1 of the Convention, the representatives of Canada provided explanations of the terms "visible minority" and "identifiable group". They stressed that "visible minority" was in no case a legal term.

315. Referring to the questions asked in connection with article 2 of the Convention, the representatives of the State party provided detailed information on developments in the negotiations between the Canadian Government and aboriginal groups on the land claimed by the latter, on the measures taken by the Government at the national and international levels following the events at Oka and on the measures it had taken for the benefit of the Innu community in Davis Inlet so that it might enjoy decent living conditions. They stressed that, although the amendments to the Indian Act (Bill C-31) had been criticized, they were intended to bring the Act into line with the Canadian Charter of Rights and Freedoms. Since their adoption, over 94,000 persons had gained Indian status and were benefiting from health, housing and higher education programmes reserved for aboriginals. The representatives of Canada also referred to some provisions on respect for aboriginal culture which were contained in the "policy on the maintenance of law and order in the First Nations".

316. With regard to the questions raised under article 4 of the Convention, the representatives of the State party outlined the arguments which had led the Supreme Court to define the scope of legislation prohibiting incitement to hatred in order not to infringe freedom of expression. They nevertheless stressed that incitement to hatred was still punishable under article 319 of the Criminal Code and they described the special procedures developed by the police to investigate activities motivated by hatred.

317. Referring to article 5 of the Convention, the representatives of Canada said that statistics on employment equity showed that there had been regular progress in the representation of "visible minorities" and aboriginal people, and noted that other information on the effectiveness of the implementation of the Employment Equity Act would be given in the next report.

318. Concerning article 6 of the Convention, the representatives of the State party provided information on the status of the initiative for aboriginal justice which was being financed by the Government and had included over 60 projects as at 1 March 1994.

319. In respect of article 7 of the Convention, the representatives of Canada provided information on the Canadian Race Relations Foundation, which was being set up and should assist researchers and institutions working in areas such as the law, the media and education. Information was also provided on the functions of the Ministry of Multiculturalism and Citizenship, which had recently become the Ministry of the Canadian Heritage.

Concluding observations

320. At its 1065th meeting, held on 17 August 1994, the Committee adopted the following concluding observations.

(a) Introduction

321. The delegation which presented the reports of Canada is commended for its constructive dialogue with the Committee and the useful additional information and explanations it provided orally in response to the questions and comments of Committee members. It is recommended that that information be included in the next periodic report. Appreciation is also expressed to the State party for its regularity in fulfilling its reporting obligations. However, it is noted that the reports are not prepared in conformity with the Committee's general guidelines for the submission of reports. As a result it is difficult for the Committee to assess how the Convention is implemented in Canada in general.

(b) Positive aspects

322. Satisfaction is expressed at the measures taken in Canada to improve the situation of aboriginal peoples. Particular reference is made in this respect to the recent land claim settlements in the eastern and central Arctic, the Gwich'n and Sahtu Dene Metis settlements in the Mackenzie Valley and in the Yukon Territory. Measures taken to eliminate racial discrimination and to promote multiculturalism in Canadian society are also welcomed. Reference is made in this respect to section 15 of the Charter of Rights and Freedoms and the Canadian Multiculturalism Act of 1988. It is noted with satisfaction that each Canadian province has adopted legal measures to combat discrimination and that particular efforts have been made to promote multicultural education, especially in Newfoundland and Labrador where the Department of Education formally adopted in 1992 a multicultural education policy for introduction in the school system. The educational measures taken to combat prejudice and racial discrimination in Canada are considered to provide models that could be followed by other States parties in respect of the implementation of article 7 of the Convention.

(c) Principal subjects of concern

323. Concern is expressed at the statement that the federal Government cannot compel the provincial and territorial governments to align their laws with the requirements of the Convention. It does not accept that the responsibility for the areas covered by the Convention is shared by the federal, provincial and territorial governments.

324. Concern is also expressed about references to "visible minorities" in regard to Canadian anti-discrimination policy, since this term does not fully cover the scope of article 1 of the Convention.

325. Concern is further expressed about the following issues: the slowness at which negotiations have been undertaken further to define aboriginal rights to land and resources in many parts of the country; the limited scope of the Employment Equity Act of 1986, which covers only 10 per cent of workers in Canada and does not fully guarantee equal employment opportunities for aboriginal peoples or their representation in high-level employment; the treatment of immigrants from the Asian and African regions, who, according to various non-governmental sources, appear not to be adequately protected against discrimination; and the existence of racist organizations.

326. In addition, it is noted with concern that, in spite of various positive measures taken by the Canadian authorities on both the provincial and federal levels to ensure adequate development and protection of aboriginal people, certain social indicators concerning, especially, alcoholism, drug abuse, suicide and the incarceration rate show that aboriginal people may be more affected by social problems than other social groups in the country.

(d) Suggestions and recommendations

327. The Committee recommends that the next periodic report of Canada be drafted in accordance with the Committee's general guidelines and provide information on measures taken by the federal, provincial or territorial governments in separate sections following the sequence of the articles of the Convention. The report should contain replies to the unanswered questions and include more precise information on the relation between federal and provincial legal measures taken to implement the Convention.

328. The Committee recommends that legal provisions at both the federal and provincial levels concerning human rights be harmonized to avoid any possible difference in treatment; that equality in access to and treatment by courts be fully guaranteed; that the Employment Equity Act be extended to wider categories of workers, including federal civil servants, to improve the effectiveness of remedies in this field; and that general recommendation XVII (42) on the establishment of national institutions to facilitate the implementation of the Convention be brought to the attention of the Canadian Human Rights Commission.

329. The Canadian authorities should strengthen their efforts to implement their existing national programmes and measures with a view to implementing fully articles 2, 4, 5 and 6 of the Convention. In particular, measures should be undertaken to ban racist organizations, to improve the employment and health situation of aboriginal people, to speed up negotiations on aboriginal land claims, to enforce remedies existing under the law, and to protect immigrants, especially those of African and Asian origin, against discrimination.

330. Noting that Canada has accepted the individual complaint procedures established under some of the international instruments in the field of human rights, the Committee recommends that the Canadian Government consider making the declaration necessary to accept the communication procedure established under article 14 of the Convention.

331. The Committee draws the attention of the State party to the amendment to article 8, paragraph 6, of the Convention, which was approved by the fifteenth meeting of States parties and by the General Assembly in its resolution 47/111, and encourages the State party to expedite its action formally to accept that amendment.