Here’s one thing that must change after Canada’s no-change election: human rights
The election that we are repeatedly reminded no one really wanted, and the election that never really seemed to be about what it needed to be about, is over. And rarely has the result of an election seemingly changed things as little as this one has. All the parties remain in the same order: Liberal, Conservative, Bloc Quebecois, NDP and Green; and their seat counts (not yet finalized) have shifted only very slightly.
But “nothing much changed” cannot be where the story of this election ends.
Quite the contrary, there must now be significant change. And human rights must drive that change like never before.
We should have heard about human rights from leaders and candidates at every turn. After all, the issues of real import – reconciliation with Indigenous peoples, a just and equitable recovery from COVID-19, addressing the climate crisis, tackling systemic racism, the need for a national childcare plan, and responding to grave international concerns like the situation in Afghanistan, to name some of the most obvious – are all reflective of deep human rights failure and will only be resolved through bold human rights action.
We should have heard a great deal about human rights, but we did not. Even when some of those concerns did come up, usually to score political points, they were rarely framed from a human rights perspective or even acknowledged to be human rights issues.
What we did witness was a very disturbing rise in hate, racism and polarization, in large part revolving around how the various parties positioned themselves on the debate about vaccine passports. That has been called out and decried by the Canadian Human Rights Commission, and must now be taken up with urgent seriousness by all parties and by Parliament as a whole.
Writing in the Ottawa Citizen in the early days of the election I proposed three overarching human rights commitments for leaders to take up: legislate a requirement to institute an international human rights action plan, commit to never using the Charter of Rights’ notwithstanding clause, and breath some life into the recently established but yet undeveloped Forum of Ministers on Human Rights.
Not surprisingly, none of the parties made any such promises. But it is not too late. And it is so very necessary.
International Human Rights Action Plan
First up, an international human rights action plan would help to address the inconsistencies, empty rhetoric, hypocrisy, shortsightedness and glaring, incoherent gaps that characterize Canada’s approach to human rights on the world stage. Canada is by no means uniquely deficient in that regard. The same critique can be made of pretty well any country. But just because most countries fall short when it comes to putting human rights at the centre of foreign policy does not mean we should as well.
Our failure to put human rights first means that we prioritize concerns about penalties for breaching contracts and concerns about commercial confidentiality above the lives and safety of the people in Yemen when allowing Canadian made armoured vehicles to be sold to Saudi Arabia, at a time when the Saudi military is committing war crimes in their country.
Human rights hypocrisy means that with much fanfare we take the step of establishing a Canadian Ombudsperson for Responsible Enterprise, mandated to look into human rights abuses associated with the operations of Canadian extractive and garment companies in other countries, but then pull back from the earlier explicit promise to provide the Ombudsperson with the actual powers needed to carry out effective and independent investigations.
Human rights inconsistency means we are all in as a leading member of the Lima Group, when it comes to addressing the grave human rights crisis in Venezuela, but do so in partnership with governments such as Brazil, Colombia and Honduras, without maintaining anywhere near the same pressure on them to improve their abysmal human rights records.
Incoherence in our approach to human rights is evident in the ways that both Liberal and Conservative governments use the crutch of Canada’s “special friendship” with Israel as an excuse for failing to take the positions international law demands when it comes to the rights of Palestinians.
Shortsightedness is clear in the longstanding failure to develop an across-government human rights strategy for the entirety of our relationship with China, such that when we could truly have benefited from pulling that strategy out we instead flounder in attempts to free the two Michaels, let alone Huseyin Celil, Sun Qian and four Canadians who have been sentenced to death.
And glaring gaps in how we safeguard human rights were painfully on display in the well-intentioned, but ad hoc and woefully inadequate measures Canada scrambled to put in place, during the election, to respond to urgent needs to evacuate people from Afghanistan and resettle them quickly to Canada as refugees.
There is no requirement and certainly no existing practice of the federal government explaining how actions and decisions taken globally, be that through foreign policy, international development, international trade, national defence, refugee protection and other arenas, are consistent with the country’s international human rights obligations. There are clearly many instances where those actions and decisions flagrantly contravene those obligations; but that is simply overlooked or unconvincingly explained away.
Legislation requiring the development of that international human rights action plan, laying out the key obligations such a plan must meet, mandating frequent public reporting on progress, and requiring it to be regularly updated, would be a tremendous component of the feminist foreign policy the Trudeau government has regularly espoused but has yet to fully elaborate and adopt. We have taken steps in that direction and have pieces of that plan in the Feminist International Assistance Policy, Voices at Risk Guidelines on Supporting Human Rights Defenders, and the National Action Plan on Women, Peace and Security. But there is much that is missing.
We would not by any means be a trail-blazing nation in doing so. Other countries -- such as Norway, Sweden and Switzerland – do have such international human rights plans, some more serious than others. Surely this is an area where Canada should be up with the leaders, not lagging behind.
Rein in the Notwithstanding Clause
Next, it would be very welcome if this Parliament were to do something, even if largely symbolic, to weaken the Charter of Rights’ notorious human rights escape hatch, the notwithstanding clause in Section 33. The notwithstanding clause didn’t get specific airplay during the election, but section 33 is of course the poison arrow that is at the heart of Quebec’s rights-violating Bill 21, which most definitely did come up frequently (weaponized by some parties and ducked by others).
Knowing that Bill 21 obviously violates Charter-protected rights, the Legault government resorted to invoking the notwithstanding clause to shield it from scrutiny. And that is precisely how the Quebec Superior Court ruled, in Hak c. Procureur général du Québec. Justice Blanchard readily concluded that Bill 21 does indeed violate a number of Charter-protected rights, and rights guaranteed under international human rights law:
“It appears indisputable that several provisions of Bill 21 violate not only some of the rights guaranteed by the Canadian and Quebec Charters, therefore domestic law, but also external law, in this case the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Universal Declaration of Human Rights.” [paragraph 727]
But he also concluded that it was beyond the Court’s ability to overturn those objectionable provisions, because “the use of section 33 sterilizes recourse to the relevant provisions of the Charter.” [paragraph 784]
This is the most egregious use of the clause, but not at all the only instance. Premier Legault has also used the notwithstanding clause to “sterilize” recent legislation declaring French to be the sole language of Quebec from Charter challenges; and Ontario Premier Doug Ford used it recently in legislation meant to get around a court ruling striking down election spending limits his government had enacted. Premier Ford had also threatened to use the clause in 2018 in response to another court ruling, that had overturned (later reversed on appeal) his unilateral move to reduce the size of Toronto City Council while municipal elections were underway.
There is ample space in the Charter of Rights for governments to make legitimate arguments about restrictions on rights, most notably section 1 which allows “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” That section 33 allows governments a wholesale abdication of their human rights responsibilities may have been seen as a necessary, if relucant, compromise back in 1982, but it is time to rein in this objectionable clause.
Of course no one has an appetite to open up the Charter for amendment, an endeavour that would almost certainly fail even if attempted. So, we are stuck with Section 33 and its debilitating permission to governments in Canada to go ahead and deliberately violate rights without legal consequence if they choose to do so. A law, barring the use of section 33 federally would, however, at least show a degree of leadership and send a message that when it comes to the Charter, human rights must actually come first. It would be a most fitting way to mark the Charter’s 40th anniversary next year.
Forum of Ministers on Human Rights
Finally, it is time for a truly bold effort to forge a national embrace of our international human rights obligations domestically. Currently we have a confused and haphazard approach, to put it generously. Vital international human rights obligations apply in all corners of the country, but are taken up inconsistently at best and are often completely disregarded, depending on which federal, provincial or territorial government is responsible. That significantly undermines human rights protection, means that some rights are better protected in some parts of the country than in others, and is certainly not in keeping with Canada’s global brand as a reliable champion of human rights.
Climate justice should be ambitious and rights-driven everywhere in the country. The commitment to human rights in the path to reconciliation with Indigenous Peoples cannot vary regionally. And the extent to which human rights drive efforts to end homelessness, tackle systemic racism or respond to numerous other pressing concerns cannot come down to which province or territory someone lives in.
International human rights principles address all of that. Canadian politicians and diplomats regularly chastise other governments for violating those obligations and urge other governments to follow the advice they receive from UN experts. But we fall short of unequivocally acknowledging that those same standards apply to us as well, and we certainly fail to take concrete and effective steps to implement them here at home.
It is an area that requires well-coordinated, accountable and transparent cooperation among federal, provincial and territorial governments, as they collectively share the responsibility to uphold international human rights in the country. Given the constitutional division of powers between the two levels of government, in some areas of human rights compliance, such as Indigenous peoples and immigration, the federal government is solely or primarily responsible; while in other areas, such as education and most matters related to health care, compliance falls within provincial and territorial jurisdiction. There are other areas of public policy with significant human rights implications, such as the environment, in which both levels of government have a role to play, as was confirmed by the Supreme Court in the recent unsuccessful challenge to the Greenhouse Gas Pollution Pricing Act launched by the governments of Alberta, Saskatchewan and Ontario.
The need to ensure that those fourteen governments are regularly coming together to discuss and review Canada’s existing and evolving international human rights obligations, consider the implications of those obligations for their own laws, policies and actions, and collectively reach decisions that ensure consistent compliance with those obligations could not be more evident. But that does not happen and the modalities for doing so have, until recently, simply not existed.
Federalism is of course not famous for inter-governmental collaboration of that nature. There are however, numerous other areas of public policy where governments do at least expend considerable effort in an attempt to do so. That hasn’t been the case, however, when it comes to human rights.
As one measure of how inattentive governments have been to this, until 2017 there had not been a meeting of federal, provincial and territorial ministers responsible for human rights since 1988. All sorts of ministerial meetings -- including with respect to justice, agriculture, finance, healthcare and the environment -- happen regularly, often annually or even twice per years. But there had not been a ministerial meeting about something as foundational as human rights, for 29 years. Since that December 2017 meeting there has now also been a follow up meeting as well, held online because of COVID-19 realities, in November 2020. That means we can now say that ministers have come together to discuss human rights in Canada three times in the past 33 years.
The potentially promising news is that after so many decades of a secretive and poorly coordinated approach to international human rights compliance, at last year’s meeting federal, provincial and territorial governments established a Forum of Ministers on Human Rights. The Forum will bring ministers together to meet once every two years. Its purpose is described as being to, “share information, discuss matters related to Canada’s international human rights obligations, and give direction to the Senior Officials Committee Responsible for Human Rights and the Continuing Committee of Officials on Human Rights on new and ongoing collaborative work concerning the respect for, protection and fulfillment of Canada’s Human Rights obligations.”
Commitments to share information, discuss matters and give direction are clearly imprecise. So how do we ensure that there is precision and, more particularly, precision that is bold, innovative and effective? The next meeting of the Forum should be held in 2022. That means that now is the time to lay the ground for that meeting. Importantly that should be done in close collaboration with the Indigenous Peoples’ organizations and civil society groups that bear the experience and knowledge with respect to human rights concerns and challenges within communities across the country.
Who bears the responsibility to carry that forward. We do not have a Minister of Human Rights in Canada, federally, provincially or territorially. In fact, it is often unclear where final authority with respect to human rights compliance rests within those government. Federally it is the Minister of Foreign Affairs that engages at the United Nations, the Minister of Justice who is responsible for reviewing laws for compliance with the Charter of Rights, and the Minister of Canadian Heritage (rather unusually) who coordinates the various processes that bring federal, provincial and territorial governments together around international human rights.
Sometime in the next couple of weeks Prime Minister Trudeau will be setting his new Cabinet with, one assumes, a mix of familiar and new faces. How refreshing it would be to see a full-fledged Minister of Human Rights. That is unlikely, so perhaps instead a Minister of Justice and Human Rights? (Notably, that would line up with the name and mandate of the House of Commons Standing Committee on Justice and Human Rights.)
Regardless, there must be clear expectations laid out in relevant Ministers’ Mandate Letters about maximizing the potential of the Forum of Ministers on Human Rights to become the body that will deliver consistent and meaningful implementation of Canada’s international human rights obligations across the country.
And now?
So, yes, the makeup of the House of Commons changed very little with this election. But we do now need to see real change when it comes to human rights.
