As a Canadian, if you travel to another country and tell people that you are Canadian, chances are that you will receive warm words about Canada — how the people are so friendly, how it is so safe in Canada, and perhaps how we are the best hockey country in the world. Human rights issues such as poverty, discrimination, civil conflict, and economic and social rights will most likely not come to mind to these people that you meet. Canada does have its human rights issues though, including, but certainly not limited to, Aboriginal rights issues, homelessness, and women’s inequality. But how widespread and pronounced are these and other human rights issues in Canada? What is the overall human rights situation in Canada? A recent United Nations (UN) initiative called the Universal Periodic Review (UPR) is seeking to provide an answer to this question, and not only for Canada but for all 193 Member States (MS) of the UN.
What is the UPR?
The UPR initiative was established by the UN Human Rights Council in March of 2006. The UPR is a process by which the human rights situations of a particular country is evaluated by all of the UN MS. The MS conducting each review are known collectively as the “Working Group”. The aim of the UPR is to bring attention to the human rights situations in UN MS and ultimately to encourage MS to improve their human rights situations. Every UN Member State is reviewed through this process, and the reviews take place every four and a half years for each country. The UPR strives to involve the MS in a dialogue to prompt, support, and expand the protection of human rights. Also, it provides an opportunity for all MS to declare what actions they have taken to address and improve human rights in their respective States. The first cycle (2008 to 2010) of the UPR concluded in 2011. Forty-seven reviews are conducted each year. In the first cycle, among the MS, there were 14,335 recommendations, and 10,211 of these were accepted by the States Under Review (SuRs) (See: “Basic Facts about the UPR” Online: http://www.ohchr.org/en/hrbodies/upr/pages/BasicFacts.aspx [UPR Basic Facts]).
In addition to the UN MS conducting each review session, other stakeholders including non-governmental organizations (NGOs), UN agencies, and national human rights institutions (NHIs) can and do attend the UPR sessions. They do not, however, take the floor during the review session to ask questions about and make recommendations on the human rights situation of the particular State Under Review (SuR). Moreover, for each review session, three MS, referred to collectively as a “troika”, are selected by draw to receive, prior to a particular review session, written questions and issues from MS, and to prepare the “Working Group” report. This report contains a summary of the review session dialogue, the SuR’s responses to the questions and recommendations that it receives, and the recommendations made by the other States (See: “UPR Process” Online: http://www.upr-info.org/-UPR-Process-.html [UPR Process Online]).
How does the UPR Process work?
For each review session, the Working Group looks at three main documents in assessing the human rights situations of the SuR: a national report created by the SuR regarding the human rights situation in their country, a report created by the Office of the High Commissioner on Human Rights (OHCHR) with information from independent human rights groups and experts and UN entities, and a summary created by the OHCHR with information from civil society groups. The Working Group evaluates these human rights situations in light of the United Nations Charter, the Universal Declaration on Human Rights, human rights instruments to which the State is a party, voluntary pledges and commitments made by the State, and international humanitarian law (See: UPR Process Online).
Each review session starts with the SuR presenting its National Report and its responses to “advance questions” about its report that were submitted to it by other MS prior to the review. After this presentation by the SuR, a sort of interactive dialogue takes place between the Member State and the SuR. The Member State takes the floor and asks questions and makes recommendations on the human rights situation of the SuR, and the SuR then responds to these questions and recommendations. The SuR does not have to accept a recommendation, but it has to explain its reasons for accepting or rejecting one. At the end of the review, the SuR gives its concluding remarks. The troika for the particular review, along with the help of the other MS, then drafts a “Working Group” report, which summarizes the review session dialogue, the SuR’s responses to the questions and recommendations that it receives, and the recommendations made by other States. The “Working Group” report is adopted by the Working Group a few days following the review, and it is then adopted by the HRC at one of their plenary sessions a few months later. The SuR is then expected — over the next four and a half years until their next review session — to implement its UPR recommendations and to try to improve human rights raised in the report. Because the second cycle of review sessions for the UPR has only started this year, no concrete observations can be made on the effectiveness of the UPR in influencing States to promote and strengthen human rights (See: UPR Process Online).
Throughout the entire UPR process (before the review session, during the review session, and during the period of time between reviews), NGOs have several opportunities to participate in and impact the process.
Before a review session, NGOs can participate in the national consultation processes with the government of the SuR. Governments are not obligated to hold national consultations with relevant stakeholders, but they are encouraged to do so. NGOs can also submit reports and information to the OHCHR, before the review, pertaining to the human rights situation in their country. Moreover, NGOs can inform other MS of the specific human rights issues that they feel are important in their country and lobby these States to address these issues in the interactive dialogue portion of the review session.
- During a review session, NGOs can be in attendance, but they cannot take the floor to ask question or make recommendations about the SuR’s human rights situation.
- Immediately after the review session, NGOs can organize a press conference and make press statements to show their perspective on the review session.
- Between the review and the adoption of the “Working Group” report at the HRC, NGOs can lobby the SuR to accept more recommendations and to submit an “addendum” to the HRC with clear responses to the recommendations.
- At the HRC adoption session for the “Working Group” report, NGOs can make oral and written statements about the report.
- Finally, during the four and a half year period between reviews, NGOs can publicize the recommendations given to the particular Member State; monitor the State’s implementation of these recommendations; communicate with the State regarding this implementation; and report to the HRC regarding the progress made by the State (See: “NGOs” Online: http://www.upr-info.org/-NGOs-.html [NGOs UPR Info]).
Canada’s UPR Process
Canada’s first UPR was held between February 2nd and 13th of the 4th review session of 2009. Canada’s Report was prepared in collaboration with the provincial, territorial and federal governments. The report focused on protection and promotion of various human rights issues, including Aboriginal issues, women’s rights, immigration and integration measures, and anti-discrimination. The report also focused on government initiatives on Aboriginal issues. These initiatives include programs offered for Aboriginal children families, extension of the Canadian Human Rights Act to matters under the Indian Act, Indian Residential Schools and treaty rights, self-government and land claims (See: UPR Process Online).
Recommendations given to Canada
Canada received a total of 68 recommendations by the 42 fellow MS. Canada accepted 39 of the recommendations. Canada was scrutinized for many human rights violations that included maltreatment of its Aboriginal peoples, poverty and homelessness, children’s rights, women’s rights, the plight of refugees, the rights of persons with disabilities, migrant and racial minority rights, and counter-terrorism practices. The human rights issue in Canada that gained the most attention from other MS was: the current situation of Aboriginal peoples, the policy addressing domestic violence and an increased level of cooperation with civil society. (See: http://www.ishr.ch/upr-monitor/browse-by-country?task=view [Canada, 4th Session]).
There were 16 recommendations made by UN MS urging Canada to address the continuous inequalities suffered by its Aboriginal peoples. Out of these 16, Canada accepted ten and made two voluntary pledges. Some of the recommendations urged Canada to give the highest priority to addressing the fundamental inequalities faced by Aboriginal people. The Netherlands made a recommendation, to strengthen and enlarge existing programs and take more measures and more specific measures towards Aboriginals, particularly in regards to the improvement of housing and educational opportunities. Canada accepted this recommendation. Since the review session, Canada has signed the United Nations Declaration on the Rights of Indigenous Peoples and this is a step forward in the right direction (See: Canada, 4th session).
Canada made the second highest number of recommendations of any of the other countries with regards to women’s rights. It also received several recommendations to develop a national strategy and legislation to address women’s issues; specifically domestic violence. Twelve out of the 68 recommendations centered on this issue. Currently, domestic violence is not an offence under the Criminal Code. Hence, there is no federal law in place to combat this issue.
Canada was recommended to engage its civil society in a meaningful way and to improve its cooperation with civil society. Canada responded that it would find an effective way to engage civil society in the follow-up to its review.
NGO engagements since the UPR
Before, during, and after Canada’s first UPR, NGOs and the government have taken different actions to impact the UPR process and to help respond to the recommendations given to Canada at Canada’s first review session.
With regards to action by NGOs, 49 NGOs from across Canada submitted reports to the Office of the High Commissioner for Human Rights (OHCHR), to be addressed at Canada’s first review session. These submissions covered topics such as Aboriginal rights, poverty, homelessness, women’s rights, disabilities, and children’s rights (See: “Universal Periodic Review of Canada (2009)” Online: http://socialrightscura.ca/eng/international-initiatives-upr-2009.html [UPR NGOs]). All of the submissions revealed Canada’s shortcomings on ensuring human rights in these particular areas. For further information on these submissions, please refer to the “List of Websites” at the end of this report for the website link containing all 49 of these submissions.
Immediately after the review, Amnesty International issued a press release highlighting the recommendations received by Canada from other MS at the review session. Amnesty urged government ministers to convene with NGO members to review the recommendations, and it brought up the fact that Canadian Ministers have not convened to discuss Canadian human rights issues since 1988 (See: “News Release Amnesty International Canada”, 5 February 2009, Online: http://socialrightscura.ca/documents/UPR/upr_press_release_feb5-09.pdf). Recall that issuing a press release after the review is an action that NGOs can take in the UPR process.
Since the first review session, NGOs have also made submissions to the Canadian government encouraging the government to implement its UPR recommendations. For example, the Social Rights Advocacy Centre and the Centre for Equality Rights in Accommodation made oral submissions to the Standing Senate Committee on Human Rights prior to this committee hosting hearings on the UPR process in Canada. This Committee ended up adopting a report recommending that the Government develop procedures in preparation for the next UPR; that it make public its various procedures to engage with civil society, parliamentarians, and Aboriginal organizations concerning Canada’s human rights obligations; and that it table its UPR submissions and responses to Parliament (See: UPR NGOs). The Centre for Equality Rights in Accommodation also made an oral submission, this one being to the Parliamentary Sub-Committee on International Human Rights (See: UPR NGOs). This Committee then ended up creating a report on how Canada should proceed in implementing its UPR recommendations. A notable recommendation in this report was that the government create a federal-provincial-territorial deputy ministers’ committee with NGOs and Aboriginal organizations to facilitate ministerial meetings (See: “Canada’s Universal Periodic Review and Beyond – Upholding Canada’s International Reputation as a Global Leader in the Field of Human Rights” Online: http://publications.gc.ca/collections/collection_2010/parl/XC11-403-1-1-02-eng.pdf). Communicating with the Member State after the review regarding the UPR process is an action that NGOs can undertake as part of the UPR.
Canadian Government’s involvement since the UPR
With regards to action on the part of the Canadian government with respect to the UPR process, the Canadian government has taken various steps towards incorporating and improving its human rights practices based on the recommendations made at its first UPR. Canada tabled the outcome of the UPR in the House of Commons and the Senate in May 2010. Canada has ratified the following two conventions (since receiving its UPR recommendations): the Convention of Rights of Persons with Disabilities and the United Nations Declaration on the Rights of Indigenous Peoples. Also, the Standing Committee on Human Rights has been mandated by the Senate to conduct reviews of issues related to human rights. The Continuing Committee of Officials on Human Rights (CCOHR) has established a permanent committee with membership of all of the relevant federal departments. The CCOHR meets once a month to discuss and track the progress of the accepted recommendations and Canada’s commitments. Canada’s UPR is now a standing item on the agenda of CCOHR. Provincial and territorial officials provide regular updates on relevant initiatives undertaken by their respective governments. Canada hosted a UPR review midterms side-event in June of 2011 for countries whose UPR occurred alongside Canada’s. This event generated a constructive dialogue and positive responses from participating states and NGOs (See: “Proceedings of the Standing Senate Committee on Human Rights”, 6 February 2012, Online: http://www.parl.gc.ca/content/sen/committee/411/RIDR/07EVA-49298-E.HTM).
Will the Recommendations make a Difference?
As a UN Member State, Canada is responsible for implementing international human rights law into its national legislation. Any international human rights law that Canada does not implement through legislation is not enforceable in Canada. Because Canada has not adopted implementing legislation for the UPR recommendations. There recommendations, these recommendations are not enforceable, and the government is therefore not obligated to act on these recommendations. However, Section 7 of the Canadian Charter of Rights and Freedoms (Charter) could potentially be interpreted by judges to impose an obligation on Canada to act on UPR recommendations related to economic and social rights. The reason for this is that section seven gives all Canadians the right to life, liberty, and security of the person, and “economic and social rights” can be interpreted, in certain instances, to be aspects providing security for a person, and therefore these rights must be protected. Certain economic and social-related rights to the UPR recommendations can therefore potentially be legally enforceable in Canada via the Charter.
The Canadian government’s next national report on the UPR is to be submitted to the OHCHR by 21 January 2013. Canada’s UPR review session, its second, will take place in 16th session from 22 April to May 3rd 2013. This review session should provide Canadians with a clearer picture on how serious Canada is about implementing the human rights recommendations that it received at its first UPR.
By Sadaf Raja (J.D.) and Redmond O’Brien (J.D./LL.L)
Sadaf and Redmond are law students at the University of Ottawa. Sadaf is in her 2nd year and is interested in criminal law, aboriginal law and human rights law. She completed an internship with the ACLRC, where she conducted research on representing mentally disabled persons in the criminal justice system. Redmond is in his third year and is interested in rule of law issues, international human rights law, and Aboriginal law issues. He is currently working as a summer legal student at the ACLRC, conducting research on various civil liberties issues, including hate crimes and foreign worker qualifications.