“Promises to Keep – Implementing Canada’s Human Rights Obligations” – Report of the Standing Senate Committee on Human Rights
On May 10th, 2001, the Journals of the Senate indicate the motion: “…that the Standing Senate Committee on Human Rights be authorized to examine issues relating to human rights, and, inter alia, to review the machinery of government dealing with Canada’s international and national human rights obligations; …” The motion was adopted. The 59-page report was published in December of 2001.
The Committee engaged in considerable research to establish the background for the report, and this sheds light on the reason for the reactions of the federal and Ontario governments to the United Nations finding, through the Waldman complaint, that Canada is “in violation” of Article 26 of the International Covenant on Civil and Political Rights.
Article 26 of the Covenant reads much the same as our Canadian Charter of Rights and Freedoms section 15, because Article 26 was its model for equality rights. Canada was found “in violation” of Article 26 because of Ontario‘s discriminatory public funding of Roman Catholic separate schools.
The International Covenant, acceded to by Canada with the agreement of all provinces (indeed, after a ten-year consultation) further states, in part 2 of Article 2: “Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.”
Because of the above, and because Canada has previously altered existing federal legislation in order to comply with the Covenant, it was assumed that the same would apply to the Waldman complaint.
Thus, the Senate report is of interest. The following excerpts are considered relevant to our issue.
From the Senate Report
This Committee provides a tangible expression of the deeply felt moral and legal duty of all Senators — indeed of all Canadians — to ensure that our country does its utmost to protect and encourage respect for human rights. This Committee will provide a unique interface between governmental and non-governmental actors in the human rights field, and its work will allow parliamentarians to deepen their knowledge of human rights issues. It will thereby help ensure that human rights issues receive the concentrated attention they merit and that all parliamentarians are better able to fulfil their responsibility to protect and promote such rights.
The machinery of government and human rights in Canada
International human rights obligations are no less binding upon us than our domestic guarantees…(but) our international commitments cannot be enforced to the same extent without converting them into domestic law. This is precisely the problem.
Canada is a “dualist” state, meaning that international treaties to which Canada has adhered do not, in and of themselves, alter its domestic law. International treaty law must be incorporated into Canadian domestic law through legislation in order to have direct legal effect. Therefore, while signing and ratifying an international covenant gives the illusion of Canada’s compliance, in reality it has no legal effect in our domestic law.
An issue for further study
While Canada, through the federal government, speaks with one voice internationally, under our Constitution it is exclusively for the provinces to implement any international treaty obligations that relate to their areas of jurisdiction. Therefore, problems arise for the federal government when provincial laws or policies threaten to place Canada in a position of non-compliance with its treaty commitments. Internationally, such internal jurisdictional divisions do not excuse a country from fulfilling its legal obligations.
The Waldman thorn
The recent decision of the United Nations Human Rights Committee on the Waldman complaint illustrates the problem. Provincial laws and policies in Ontario that provide for the public funding of Roman Catholic schools, but not those of any other religious denomination, were successfully challenged under the International Covenant on Civil and Political Rights. Canada, as the responsible State Party, was held by the treaty body to be in breach of the Covenant. All the federal government could apparently do was urge provincial compliance. Ontario has refused.
As was indicated to us, this type of situation is unacceptable and harmful to Canada’s international reputation on human rights. As Professor Bayefsky observed: “[I]f the provinces are able to say that they have no obligation to adhere to those international obligations, and the federal government is able to say it has no obligation to do more than encourage them, what does our ratification mean?”
There should be a way for constitutional impediments to the implementation of Canada’s international human rights obligations to be addressed transparently.
A future possibility
Noting the Senate’s special mandate to represent regional perspectives and interests, it was indicated to us that a Senate committee, such as this one, could be well-placed to make a valuable contribution in this area by providing a forum for discussing regional concerns arising out of Canada’s human rights commitments. This committee should study the extent to which our particular form of federalism is a support or impediment to furthering international human rights treaty obligations. Through this study, the Committee could also develop proposals and give advice on procedures to enhance compliance.
The complete report is a very useful one to read as it points out the background to Canada’s treaty compliance mechanisms and is very critical of same. “Waldman” is addressed.
Despite the criticism, however, the recommendations of this report contain nothing to encourage compliance in cases where the U. N. Human Rights Committee has found Canada in violation of a Covenant’s terms.