Closing the Implementation Gap: Federalism and Respect for International Human Rights in Canada

Over the past 25+ years I have worked closely with a range of colleagues, activists, lawyers, academics and others, in an effort to ensure that Canada complies with and implements the country’s important international human rights obligations. I welcomed the opportunity to pull that work together in this major study for the Institute for Research on Public Policy’s Centre of Excellence on the Canadian Federation. It comes in advance of the upcoming inaugural meeting of the Forum of Ministers on Human Rights, which brings together ministers responsible for human rights across Canada’s 14 federal, provincial and territorial governments. The forum is precisely where the long overdue and desperately needed progress in advancing a national framework for international human rights implementation needs to take hold. This study offers a range of recommendations towards that end. The IRPP press release, and a link to the study follow:

MAY 17, 2023

Canada has long enjoyed an international reputation for having a stellar human rights record. Looking closer at Canada’s domestic record of human rights implementation presents a murkier picture of a country that is often reluctant to incorporate international human rights treaties and recommendations at home. There is an upcoming opening, however, to make progress on that front. The inaugural meeting of the Forum of Ministers on Human Rights, expected in 2023, offers an opportunity to strengthen the implementation of international human rights obligations at the federal, provincial and territorial levels.

This study sets out a comprehensive agenda for advancing reforms, to help shape the work of the forum and address the implementation gap.

The author identifies five key reasons behind Canada’s implementation gap. First, federalism presents the most significant barrier to the effective implementation of international human rights obligations. The division of powers means that responsibility for implementing human rights standards overlaps between orders of government. This results in ambiguity, turf guarding, buck passing and finger pointing.

Second, on the judicial side, Canada takes a dualist approach to international law, meaning human rights treaty obligations are not directly enforceable until they have been explicitly incorporated into Canadian law, which rarely happens. It’s left to the courts to interpret the Charter consistently with international human rights norms when crafting decisions, but this yields variable results.

Third, lack of clarity around exactly who is responsible for human rights within each order of government complicates accountability by dispersing responsibility across departments and agencies. Responsibility rests everywhere, meaning it effectively rests nowhere.

Fourth, governments in Canada have resisted interpretations of the Charter and domestic laws that ensure access to economic, social, and cultural rights.

Finally, there has been little consideration of the important role that both Indigenous and municipal governments can and must play in implementing Canada’s human rights obligations despite these governments being at the front line of many of the country’s most pressing human rights challenges.

All these factors, taken together with the variable views governments in the country hold about the standing of international human rights obligations, create a complex environment for human rights implementation.

The author argues that a national framework for international human rights implementation is needed. The framework would be grounded in the principles of ­co-operative federalism and the national concern doctrine to strengthen intergovernmental ­mechanisms for consistent international human rights implementation. The proposed recommendations for the national framework range from advancing incremental changes to adopting new legislation, and include recommendations to do the following:

• Commit publicly and explicitly to ensuring that all policies and actions taken by federal, provincial and territorial governments conform to international ­human rights obligations

• Strengthen existing laws, policies and processes to support implementation of international human rights obligations

• Enact comprehensive legislative reform, including adoption of international human rights implementation laws by federal, provincial and territorial governments

• Ensure an enhanced role for Indigenous governments in implementing international human rights obligations, in keeping with the UN Declaration on the Rights of Indigenous Peoples

• Formalize the role of municipal governments in implementing international human rights obligations

• Enhance stakeholder and public engagement to improve the capacity of stakeholders to contribute to and monitor the implementation of human rights in Canada

• Establish a dedicated secretariat equipped with long-term funding, including for Indigenous People’s organizations and civil society groups, to support all aspects of the national framework.

Click here to access the entire study, Closing the Implementation Gap: Federalism and Respect for International Human Rights in Canada.