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Canada's Fourth Report under the International Covenant on Civil and Political Rights

Advanced Notes for the Presentation to the United Nations Human Rights Committee

The Canadian Context

• The Framework for Protecting Human Rights in Canada

• Equality and Minority Rights and Protection
• Legal Rights, Criminal Justice and Youth Justice and the Protection of Children
• Enforcement and Promotion of Civil and Political Rights

On March 26, 1999, the United Nations Human Rights Committee will be considering Canada's Fourth Report under the International Covenant on Civil and Political Rights. Under the Covenant, Canada has obligations to implement the important civil and political rights contained in that treaty. The Covenant is part of the International Bill of Human Rights, which includes the Universal Declaration of Human Rights. Canadians and people from all over the world recently celebrated the 50th Anniversary of the Universal Declaration, a watershed document in the protection of human rights. The International Bill of Rights provides basic protections for universal human rights and fundamental freedoms. Canada sees these human rights and fundamental freedoms as representative of values and principles underlying our free and democratic society. It is in this context, that we say that the International Covenant on Civil and Political Rights is held in high regard by Canada, and that Canada takes its obligations under the Covenant very seriously.

Canada's Fourth Report covered the period from January 1990 to December 1994. Canada's delegation looks forward to its appearance before the Committee to discuss the Fourth Report. Given the lapse of time since the period covered by the Fourth Report, Canada wishes to provide information highlighting some recent important developments relating to the implementation of the Covenant since the end of the time period covered by the Fourth Report. A more detailed consideration of these developments will await the upcoming presentation, as well as the future preparation of Canada's Fifth Report. In the meantime, it is hoped that the Committee may consider it useful to have this further, more current background information.

The Canadian Context

Canada is a diverse multicultural country. Canada has an important Aboriginal population representing a variety of First Nations. Joining Aboriginal peoples in Canada are people who owe their origins to all parts of the world. Indeed, since 1867, when Canada became a nation, over 14.3 million people have immigrated to Canada. In addition to its multicultural diversity, Canada is a bilingual country with two official languages, French and English.

Canada's Core Document Forming Part of the Reports of States Parties, which was prepared in October 1997 and submitted to the United Nations, provides a more detailed picture of Canadian society. We would like to briefly update some of this information here to give an overview of the current composition of Canadian society.

Data from Canada's latest Census (which was not available for the Core Document) confirms the growing diversity of Canadian society. The 1996 Census indicates that a significant proportion of Canadian society continues to be of British or French origin. However, an increasing number of Canadians are reporting other origins, or a combination of other origins with French or British origins. In 1996, 28% reported origins other than French, British or Canadian, while another 16% reported a combination of other origins with French, British or Canadian origins.

Immigrants and their descendants have contributed to Canada's economic growth, enriched our multicultural heritage, participated in our political process, and helped define our collective identity. In 1996, 17.4 percent of Canada's total population had come to Canada as part of the immigration movement. In fact, 18% of Parliamentarians are immigrants themselves.

The flows of immigrants and refugees coming to our shores is constantly changing. Perhaps the most significant change to occur over the past few decades has been the dramatic shift in source countries. Whereas about 94 percent of immigrants coming to Canada in the 1950s were from Europe or the United States of America, the proportion had declined to about 20 percent in 1997. In contrast, the percentage of immigrants from Asia has climbed from about 3 percent in the 1950s to about 55 percent in 1997. The top five source countries in 1997, when over 216,000 immigrants arrived in Canada, were Hong Kong, India, People's Republic of China, Taiwan, and Pakistan.

The changing faces of immigrants and refugees to Canada have been mirrored by a changing world in which shifting economies and power structures have created large movements of people seeking either economic opportunity or refuge. Canada has opened its doors to both. On a per-capita basis, with an immigration rate equal to about 0.7 percent of the total population, Canada admits proportionately more immigrants and refugees as permanent residents and potential citizens than most other immigrant receiving nations.

Corresponding to the changes in patterns of immigration has been the change in representation of visible minorities in Canadian society. Canada's 1996 Census indicates that visible minorities represented 11.2% of the population, up from 9.4 % in 1991 and 6.3% in 1986. It also indicated that three out of every 10 individuals who identified themselves as a member of a visible minority were born in Canada, and that the rest had immigrated from other parts of the world.

Finally, the latest data indicates that in 1996, approximately 800,000 individuals, or about three per cent of the population, reported that they were Aboriginal.

Thus, the latest information indicates that Canada is an increasingly diverse society. Our rich heritage is a distinguishing feature of Canada, and is something that we celebrate. Our diversity is a part of our strength as a society. Different backgrounds, different cultures, different histories come together to give us broader perspectives to help us in addressing the social, economic, political and other issues that face any society. This demographic reality requires us to regularly re-examine public policy to ensure it meets the needs of an evolving population.

The Framework for Protecting Human Rights in Canada

Canada has developed many laws, policies, programs and activities to protect and promote human rights. The framework for Canada's efforts includes some important key laws and policies, such as the Canadian Charter of Rights and Freedoms and Canada's Multiculturalism and Official Languages policies. These and many other laws and policies reflect the values and principles of the International Covenant on Civil and Political Rights, and establish the means and context for Canada to implement the Covenant.

As part of the International Bill of Rights, the Covenant was instrumental in the development and adoption of Canada's constitutional bill of rights, the Canadian Charter of Rights and Freedoms. The Charter and the Covenant are very similar in content and spirit (more detailed information on the Charter may be found in Canada's Core Document). Both protect a wide range of human rights and fundamental freedoms, and reflect the same abiding respect for the inherent dignity of the human person. The Canadian Charter of Rights and Freedoms is part of the Constitution, the supreme law of the land, and takes precedence over all other legislation, be it federal, provincial, territorial or municipal.

The executive and legislative branches of the government are responsible for ensuring that their actions and legislation are in compliance with the Charter. For example, the Minister of Justice of Canada is required to examine all proposed federal government bills and regulations for compliance with the Charter and with the Canadian Bill of Rights (the latter applies to the federal government and is comparable to a large extent with the Charter).

Courts in Canada have power to enforce the Charter, and to provide remedies to persons whose rights have been infringed. Aggrieved persons may seek the assistance of the courts in a variety of ways to give effect to their Charter rights. The Charter may be invoked in proceedings before certain administrative or quasi-judicial tribunals which are charged with applying federal, provincial or territorial legislation. Individuals and groups may also bring lawsuits directly against governments when they feel their Charter rights have been infringed by laws dealing with, for example, social benefits, income tax, or immigration. Persons accused of crimes may also invoke their Charter rights during criminal proceedings. To assist individuals in seeking the assistance of the courts, the federal government established the Court Challenges Program, which provides financial support for potential precedent-setting Charter cases in the areas official languages and equality rights. Finally, it is noted that the Covenant is an important consideration in the interpretation of the Charter by Canadian courts.

As a part of the Canadian Constitution, the Charter is a cornerstone of human rights protections in Canada. It is complemented by the many other laws and policies adopted by all levels of government in Canada, which give effect to the International Covenant on Civil and Political Rights. Implementation of the Covenant in Canada occurs in the context of the Canadian federal system (more detailed information on which may be found in Canada's Core Document). The Executive branch of the federal Government of Canada has the authority to ratify international conventions on behalf of Canada. Conventions do not automatically become part of Canadian law, although they are without a doubt relevant to the interpretation of the Charter and other domestic laws. While the federal government may ratify international conventions, our Constitution provides that the legislative authority to implement international conventions is divided between the levels of government - federal, provincial and territorial - depending on their jurisdiction over the subject matter. The constitutional division of legislative authority to implement international conventions means that the Government of Canada must consult, and seek the support of the provincial and territorial governments before ratifying an international human rights convention. After ratification, all levels of government must engage in a continuing dialogue to facilitate and promote the implementation of the international human rights conventions.

Apart from the Charter, Canada has developed a wide range of laws and policies which give effect to Covenant rights. Every jurisdiction in Canada has enacted human rights legislation, principally concerned with combatting discrimination (for example, the federal Canadian Human Rights Act). This includes discrimination based on such grounds as sex, race, colour, national origin, ethnic origin, sexual orientation, and religion. These laws provide processes to enforce the prohibition against discrimination, generally at no cost to the complainant. Typically, an individual or groups can file a complaint with a human rights commission. Commissions, which are independent of the government, have broad powers to investigate complaints and decide whether or not to refer complaints for adjudication by an independent human rights tribunal. The tribunals usually can order parties to cease the offending activity, to provide compensation, and to restore any lost privileges or opportunities, including jobs.

Human rights legislation in Canada is complemented by other laws and policies designed to reinforce equality and to recognize our diversity. The federal Employment Equity Act, passed in 1986, and broadened in 1996, provides for federally regulated private sector employers with 100 or more employees to implement employment equity by identifying and eliminating barriers to employment for women, visible minorities, aboriginal peoples and persons with disabilities, and by making provision to take positive steps, including the setting of hiring goals, to correct underrepresentation of these groups in their workforces. Under this legislation, the Treasury Board of Canada must report to Parliament each year on the implementation of employment equity in the public service.

Canada's Multiculturalism Policy was announced in 1971. With it, the Government of Canada committed itself to supporting all of Canada's cultures, intercultural understanding and the social development of cultural groups. The Canadian Multiculturalism Act was proclaimed in 1988 giving the concept of multiculturalism official legislative footing for the first time in the world and affirming multiculturalism as a defining characteristic of Canadian society. Implementation of the law is scrutinized by Parliament - the Secretary of State (Multiculturalism) of Canada is required to report to Parliament on an annual basis. Although Canada was the first nation to adopt multiculturalism legislation, its efforts were greatly affected by international developments. This is the reason why the Preamble of the Canadian Multiculturalism Act makes express reference to the International Covenant on Civil and Political Rights. It is noted that section 27 of the Canadian Charter of Rights and Freedoms has elevated recognition of Canada's multicultural heritage to the status of a constitutional principle in requiring that the Charter be interpreted in a manner consistent with "the preservation and enhancement of the multicultural heritage of Canadians".

Other important laws protecting equality and minority rights and recognizing our diversity are Canada's official languages laws. The Canadian Charter of Rights and Freedoms is an important source of official languages rights. Subsection 16(1) of the Charter gives English and French equal status, rights and privileges respecting their use in the institutions of Parliament and the Government of Canada. This includes the right to use English or French in the proceedings of Parliament (section 17), the constitutional guarantee that Parliamentary records and statutes will be enacted, printed and published in both official languages (section 18), the right to use either English or French in proceedings in courts established by Parliament (section 19), and the right to communicate with, and receive services from Parliament and the Government of Canada where circumstances warrant (section 20). Subject to eligibility requirements and to a numbers warrant test, citizens of Canada are entitled to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province (section 23).

The federal Official Languages Act (1988) repeats and complements the Charter provisions. The Act ensures respect for English and French as the official languages of Canada and equal rights and privileges as to their use in all federal institutions (s. 2). The Act also declares that the Government of Canada is committed to (a) enhancing the vitality of the English and French linguistic minority communities in Canada and supporting and assisting their development and (b) fostering the full recognition and use of both English and French in Canadian society (section 41, Part VII). The Act establishes a Commissioner of Official Languages who may investigate complaints that the law has been violated, and also allows complaints to be brought before the Federal Court for a remedy. The Commissioner files an annual report directly to Parliament. In addition, the Official Languages Act provides for Parliamentary scrutiny by requiring the Minister of Canadian Heritage and the President of the Treasury Board of Canada to report annually to Parliament on implementation by government departments and agencies.

The Criminal Code of Canada grants the accused the right to a trial before a judge, or judge and jury, who speak the official language that is the language of the accused. These provisions have been in effect throughout Canada since January 1, 1990.

As a country which has been built on the strength of our immigrant communities, along with our Aboriginal communities, Canada's immigration and refugee laws and policies have played a key role in shaping the growth and development of our country. Canada's immigration and refugee laws and policies have been designed taking into international human rights conventions. For example, Canada's refugee policies are designed to assist those whose rights as guaranteed in Articles 7 and 18, for example, have not been upheld in their countries of origin. Canada's adherence to the United Nations Convention relating to the Status of Refugees has long been a source of pride for Canadians.

Any person in Canada, including those at ports of entry, other than those against whom a removal order has already been made, may seek a determination of their claim to be a Convention refugee by notifying an immigration officer. With the exception of a small number of persons found to be ineligible for a refugee status determination because they have already been found to be Convention refugees, have recently been found not to be a refugee, or represent a serious criminal or security risk, all claimants receive an oral hearing before the Convention Refugee Determination Division (CRRD) of the Immigration and Refugee Board. The Board is an independent quasi-judicial body established under the Immigration Act. Once a claimant has been referred to the CRDD, they are eligible for social services, generally may chose their own place of residence, and may apply for an employment authorization.

Persons found not to be eligible for a refugee determination or found not to be a Convention refugee can, with leave from a judge of the Federal Court, obtain judicial review of any order or decision. Since 1993, the Immigration Regulations also specify that a rejected refugee claimant may apply for an assessment of risk by specially trained immigration officers who determine whether, if removal was carried out, the person would be subject to identifiable risk of threat to life, excessive sanctions or inhumane treatment.

In addition, failed refugee claimants can apply to stay in Canada on the basis of humanitarian and compassionate circumstances which may exist. The guidelines to immigration officers on these applications focus on such considerations as the applicant's degree of attachment to Canada, the personal circumstances of the applicant and his or her family members, and the hardship that would result should the person be required to leave Canada. Risk is again a factor to be considered during this process.

Canadian citizenship is a special status that not only incorporates rights and duties but serves a highly symbolic function as a badge identifying people as members of the Canadian polity. As the Minister of Citizenship noted recently in the Canadian Parliament, "It is the very foundation of the Canadian identity. It acts as the common denominator that unites us from coast to coast". The Citizenship Act defines who is a citizen at birth and who may become one through the naturalization process. Both those born in Canada and those born abroad to a Canadian parent are citizens by operation of law. All permanent residents are given the right to become a citizen following a period of residence of three years, after passing basic tests pertaining to language, knowledge, criminality and security. Each year some 160,000 residents choose to adopt Canada as their country of choice, thereby becoming full fledged members of Canadian society.

The laws, policies and programs discussed above are important parts of the Canadian framework for protecting and promoting human rights and implementing the International Covenant on Civil and Political Rights. However, government laws and action are not enough to guarantee the civil and political rights of Canadians. The involvement of individuals and groups from all parts of Canadian society is crucial to ensuring that we succeed in promoting respect for human rights and implementing Canada's obligations under the Covenant. The Government of Canada believes that civil society must be engaged in this endeavour. To this end, the Government has sought to form partnerships with individuals and groups outside government, and to encourage community and NGO action in many different areas. Examples of these partnerships and community initiatives have already been provided in the Fourth Report and other examples are mentioned below in the section on recent developments.

In summary, Canada's basic framework for protecting human rights includes a number of key laws and policies such as the Canadian Charter of Rights and Freedoms, the Canadian Human Rights Act and provincial human rights legislation, the Official Languages Act, Canada's Multiculturalism Policy, and the Canadian Multiculturalism Act. There are also a wide range of other laws and policies which assist in protecting human rights including the civil and political rights set out in the International Covenant on Civil and Political Rights. Working both within the basic framework for protecting human rights and in the context of other laws and policies, Canada has taken a number of important steps to implement the Covenant since the time period covered by the Fourth Report. These steps are addressed below.

Highlights of Recent Developments

We would like to highlight some important developments in certain key areas covered by the International Covenant on Civil and Political Rights. These key areas include those provisions of the Covenant relating to equality and minority rights and protections (including articles 2, 3, 14, 20, 26 and 27), and legal rights, criminal and youth justice, and the protection of children (articles 6, 10, 14, and 24). Certain other developments related broadly to enhancing the enforcement and promotion of civil and political rights are also included.

Equality and Minority Rights and Protections

Over the past several years, the Government of Canada has taken a wide range of measures to reinforce the ideals of equality and respect for diversity in Canadian society. Many of these relate to laws and policies forming the basic framework for protecting human rights such as the Canadian Human Rights Act and Employment Equity Act , while others relate to laws and policies complementing this framework such as the Criminal Code of Canada, gender-based analysis, and the Family Violence Initiative.

Canadian Human Rights Act. An important recent step took place in 1998, when the Government of Canada enacted legislation to enhance the protections of the Canadian Human Rights Act. This legislation made a number of changes to the Act. Important changes include: the addition of an express obligation for employers and service providers to accommodate the needs of individuals and groups protected by the law, including persons with disabilities and religious minorities; the prohibition of retaliation against persons who have filed complaints under the law; the creation of a new small permanent Canadian Human Rights Tribunal to enforce the law; and provision for the Canadian Human Rights Commission to report directly to Parliament, in symbolic confirmation of their independence.. The Minister of Justice will soon be announcing a comprehensive review of the Canadian Human Rights Act. With a view to improving the fairness and efficiency of the Act, the current structure of the Canadian Human Rights Commission and the adequacy of the existing grounds of discrimination and exemptions will be examined.

Sexual Orientation. In 1996, prior to the recent general amendments to the Canadian Human Rights Act, the Government of Canada enacted legislation to amend the Act to expressly prohibit discrimination based on sexual orientation. As noted in Canada's Fourth Report, the Supreme Court of Canada has determined that the equality provisions of the Canadian Charter of Rights and Freedoms prohibit discrimination based on sexual orientation. Most recently, the Supreme Court of Canada considered a challenge to a province's human rights legislation claiming that because it does not protect gays and lesbians from discrimination on the basis of their sexual orientation, it violates the guarantee of equality found in section 15 of the Charter (Vriend v. Alberta, [1998] 1 S.C.R. 493). The Court accepted this claim holding that gays and lesbians form a disadvantaged group, subject to discrimination and prejudice. The Court ordered that sexual orientation be read into the provincial human rights legislation as a prohibited ground of discrimination. At the federal level, in 1995 the Treasury Board granted a range of employment-related benefits to same-sex partners of federal Public Servants, including bereavement leave, leave for family-related responsibility and relocation expenses. In 1996, medical and dental benefits were extended to gay and lesbian federal Public Servants who wished to purchase coverage for their partner. The Government continues to review the implications for the range of federal statutes and programs.

Race Relations and the Fight Against Hatred. A number of developments have occurred in the context of Canada's efforts to combat racism and racial discrimination. In 1996, legislation to establish the Canadian Race Relations Foundation was proclaimed into effect. The purpose of the Foundation is to facilitate throughout Canada the development, sharing and application of knowledge and expertise in order to contribute to the elimination of racism and all forms of racial discrimination in Canadian society. The Foundation has funded a wide range of projects. For example, it has provided funding to the Alberta Black Studies Association and the Edmonton Social Planning Council for a community symposium highlighting the contributions of Black pioneers and their struggles against racism in the settlement of Alberta. It has also funded the Canadian Council for Refugees to support the development of educational materials to combat racism and xenophobia by exposing myths about refugees and immigrants.

The Multiculturalism Program of the Government of Canada has supported community initiatives to combat hate across Canada. For example, in British Columbia, support was provided to the West Coast Coalition for Human Dignity to produce a handbook for youth on how to combat hate, and in Manitoba support was provided to Youth Against Hate to hold workshops on hate and bias in schools. The Multiculturalism Program also sponsors an anti- racism campaign each year in connection with March 21, the International Day for the Elimination of Racism. This campaign targets young people in particular, encouraging them to join the battle against racism and hatred and participate in building a society that welcomes diversity.

Recent developments in the fight against racism and prejudice also include legislative amendments and court decisions relating to combatting the promotion of hatred. Canada's efforts in this respect are guided in general by those articles of the Covenant which guarantee equality rights and in particular by Article 20(2) of the Covenant which requires States Parties to prohibit the advocacy of hatred. The general amendments to the Canadian Human Rights Act discussed above included new administrative fine for persons who violate the prohibition against communicating hate messages by telephone. This prohibition was also the subject of a recent Supreme Court Canada decision. Where a complaint has been filed alleging that someone has violated this provision, it is investigated by the Canadian Human Rights Commission, which may decide to refer it to the Canadian Human Rights Tribunal for an adjudicative hearing. The Commission has on a number of occasions sought interlocutory injunctions from the courts to prevent individuals and groups from communicating hate messages by telephone pending the hearing of a complaint by the Canadian Human Rights Tribunal. The Commission's ability to obtain such injunctions was challenged in Canada (Human Rights Commission) v. Canadian Liberty Net (1998). The Supreme Court of Canada rejected this challenge, holding that the Canadian Human Rights Commission may seek an interlocutory injunction from the Federal Court of Canada to restrain violations of the hate message provisions of the Act. In another recent case, the Canadian Human Rights Commission has relied on the telephonic hate messages provisions of the Act to assert jurisdiction over Internet messages, accessible in Canada, although originating in the United States. The Commission's jurisdiction is being challenged in a case currently before the Federal Court of Canada (Zundel v. Attorney General of Canada).

Changes to the Criminal Code of Canada have also enhanced Canada's ability to fight hate- motivated crime. In 1996, amendments to the Criminal Code provided for longer sentences for those who commit crimes motivated by bias, prejudice or hate based on such characteristics as race, national or ethnic origin, colour, religion, sex, and sexual orientation. Hate crime was an important topic of discussion at the October, 1998 Federal-Provincial-Territorial Meeting of Ministers Responsible for Justice, and a number of recommendations presented by a federal- provincial-territorial working group of officials and agreed to by Ministers are currently under consideration. Another Federal-Provincial-Territorial Working Group on Offensive Content and the Internet has been established to review a number of issues, including an examination of the terminology within the hate propaganda provisions of the Criminal Code to ensure the continued ability to deal with technological advances. Federal government departments are working together and with other institutions to develop a national strategy on hate crime.

Employment Equity. In 1996, the Government of Canada also enacted legislation to replace the federal Employment Equity Act. This new legislation fundamentally strengthens the law. Slow progress in implementation led the government to enact the new Employment Equity Act, following a Parliamentary Committee report recommending that the law be strengthened. The new Act incorporates the obligations provided for employers in the previous statute, that is, to identify and eliminate barriers and to take positive steps including the setting of hiring goals, and creates an enforcement mechanism with specific remedies for non-compliance. In addition, responsibility for enforcement of the law was conferred upon the Canadian Human Rights Commission and a new adjudicative body known as an Employment Equity Review Tribunal, constituted from the Canadian Human Rights Tribunal. Federal government departments and agencies, which had previously adopted employment equity policies and programs pursuant to directives of the Government of Canada, were also brought under the umbrella of the Employment Equity Act in 1996. The Federal Contractors Program, which has been in place since 1986 and which requires major private contractors doing business with the federal government to implement employment equity, was also included for the first time in the legislation.

Official Languages. Cognizant of Article 27 of the Covenant which protects the rights of linguistic minorities, the Government of Canada has undertaken measures in recent years to reinforce and accelerate the implementation of official language rights. These include measures to ensure that key federal government institutions give special attention to their responsibilities with respect to the development of official language minority communities, and that government departments make senior officials responsible for carrying out this mandate.

The Government of Canada will also invest an additional 70 million dollars every year in its official languages programs, bringing the total annual budget to $293.5 million for this purpose. A portion of these new funds will allow direct support to official language minority communities through a series of new Canada-community agreements and funding of nation-wide projects with a long-term impact on the development of these communities. The Government of Canada will also provide additional financial support for the delivery of provincial and territorial services in the minority language, making it possible to introduce or improve a broad range of French- language services in the provinces and territories relating to the administration of justice, health and social services, and economic and community development. An agreement with Quebec is aimed at similar services in the English language. Finally, an annual injection of 50 million dollars in new funds for minority language teaching and second language teaching will be used to consolidate minority language instruction and second language programs and extend access to French-language post-secondary education.

Immigration and Refugees. A cornerstone of Canada's immigration policy has long been family reunification. Family class applications are given priority in the processing system. All sponsored spouses and dependent children will be processed, subject to medical and security requirements. In 1997, almost 60,000 family members were granted permanent residence in Canada. Recognizing that the process still takes a significant amount of time, efforts continue to speed up the processing times for family members and to improve the system. In January 1999, the Minister of Citizenship and Immigration announced some proposals for reform of the immigration and refugee legislation on which she would be consulting with Canadians. Included in the announcement were a number of proposals to change the family reunification program.

These proposals include increasing the age of dependent children so that dependents up to the age of 21 may be included as family members for immigration. Currently the cut off is at age 18, unless the child is a full-time student and financially dependent upon the parent or suffers from a physical or mental disabiltiy and is dependent in which case the child may be included as a dependent. Provision would also be made to allow spouses and children to apply for immigration from within Canada. Currently, immigrants are required to make their applications outside Canada. Another proposal would see the definition of spouse in the Immigration Regulations extended to include common-law and same-sex couples. Currently, common-law and same-sex relationships are recognized only in administrative guidelines which are discretionary in nature and, thus, not binding. The government's aim is to achieve greater transparency and consistency.

While Canada has what is recognized as one of the best refugee determination systems in the world, there are problems, many of which are as a result of the quasi-judicial nature of the system which is designed to ensure the rights of the claimant are respected. The challenge is to balance fairness with effectiveness by protecting those who need protection, while dealing efficiently with those who apply for refugee status for reasons not related to protection. Included in the announcement in January by the Minister of Citizenship and Immigration are proposals to consolidate and streamline the refugee determination process. For example, the jurisdiction of the Convention Refugee Determination Division would be expanded to include the examination of any allegation related to the risk of return to the applicant's country. Thus, Board decision makers would assess in a single decision the need for protection not only under the Refugee Convention, but also under other international instruments to which Canada is a signatory, such as the Convention against Torture.

As an independent decision-making body, the Immigration and Refugee Board has the authority to establish its own guidelines. In 1993, the Board adopted Guidelines on Women Refugee Claimants Fearing Gender-related Persecution. These guidelines serve to expand the Convention refugee definition of "persecution" to include severe sexual discrimination and to state that the definition of "social group" extends to women subjected to sexual discrimination.

Equality of Women. At the time that the Beijing Platform for Action was adopted at the Fourth UN World Conference on Women in 1995, Canada presented its Federal Plan for Gender Equality. It outlined many specific initiatives and also committed the Government of Canada to a significant new development in policy development and decision-making - gender-based analysis. This analysis is now a requirement of all federal departments and agencies.

Gender-based analysis is recognized as a primary tool for identifying and remedying problems of gender equality that may arise in the course of the work of government. Gender analysis starts with an understanding of the continuing reality of women's inequality and of the different experiences of women and men, girls and boys, in society. It attempts to uncover values and assumptions about gender roles that may restrict women's choices and actions. It asks how a decision affects women and whether it affects women differently than men. Finally, it aims at the making of decisions that respect and support women's safety, autonomy, well-being and full participation in society, the ultimate goal being equality between women and men.

Since 1995, federal government departments and agencies have made great strides implementing gender-based analysis. Initiatives include the development of guidebooks and training workshops, the appointment of gender equality experts and senior advisors in several departments, and the funding of gender-based research outside government. Canada's provincial and territorial governments have taken similar steps to integrate gender perspectives into their legislation, policies and programs as well. One noteworthy joint initiative of the Federal- Provincial-Territorial Ministers Responsible for the Status of Women was the development in 1997 of a set of Economic Gender Equality Indicators.

These Indicators reveal that overall there has been a steady upward trend from 1986 to 1995 in women's earnings and income relative to men's and that the income tax system has had a steady, positive gender equality effect, although there are still significant gender gaps (women's total after-tax income in 1995 was 60% of men's.) Women have also made gains in higher education but they continue to put in significantly more total hours of combined paid and unpaid work, with acute imbalances between women and men in time devoted to caring for young children. The greater share of unpaid caring work assumed by women can often have long-term impacts on their future education, training and employment opportunities and on earnings and retirement income.

The Government of Canada has taken steps to monitor unpaid work by including questions in the Census of Canada.

Because the situation of women and children or other dependants is closely tied, several recent government measures to assist families will also support women. In 1995, a federal framework for child care in First Nations and Inuit Communities was established, with 6,000 quality child care spaces to be created or improved over three years. In 1996, a new child support reform package for separated and divorced families was brought in with guidelines for support amounts, improved enforcement, changes to taxation and enhanced assistance for low-income families that makes the system fairer for all parents and children. Because the majority of children live with their mothers on marital breakdown, these measures will contribute to gender equality.

Violence against women is also an important equality issue, with serious consequences for women, families and society as a whole. Violence is both a cause and consequence of women's inequality. Eliminating violence against women and children is a basic issue of human rights and social justice.

The Government of Canada continues to be committed to addressing violence against women on every front. The Government is pursuing a multifaceted, multidisciplinary approach that builds on a wide range of partnerships with the provinces, women's groups, non-governmental organizations and other sectors of society.

The Government of Canada has launched several measures to assist in the elimination of violence against women. In 1997, the Government announced its renewed Family Violence Initiative strategy. This strategy focuses primarily on preventing and responding to violence against women and children in the home. The strategy concentrates on: promoting continued public awareness of the problem as well as public involvement in the response to family violence; strengthening the criminal justice and housing system's responses to family violence; and undertaking data collection, research and evaluation measures to help identify effective ways of addressing the problem.

As part of the Family Violence Initiative, the Department of Justice evaluated 1993 criminal law reforms to address a particular type of violence against women namely, criminal harassment or "stalking". The 1997 research report indicated that 57% of criminal harassment cases involved current or former domestic partners, and that, of these, 95% involved a male accused and a female victim. This report found that the criminal law reforms were perceived to be an improvement over previous mechanisms for capturing such conduct but recommended further action to enhance the implementation of these reforms. Accordingly, the Department of Justice of Canada, together with Federal, Provincial and Territorial partners, is currently developing guidelines relating to criminal harassment for police and Crown prosecutors to improve the criminal justice system's response to this form of violence against women.

The Department of Justice of Canada is also funding the Canadian Association of Sexual Assault Centres over 1998-99 to 2002-03 to carry out activities which seek to enhance the criminal justice system's response to family violence, as well as to provide improved services to women and children who are victims of family violence.

From 1991 to 1995, the Family Violence Initiative provided funding through a national public education program for over 2,000 projects. In 1996, the Government of Canada launched a $1.9 million Shelter Enhancement Program to upgrade shelters for women and children who leave abusive situations. This Program was extended in 1997 and involved an additional expenditure of $6.7 million for a total of $8.6 million to finance the capital costs of bringing existing shelters up to acceptable health, safety and security standards. In 1997-98, 237 emergency shelters and second stage housing units were upgraded.

The Family Violence Initiative also complements other federal initiatives and priorities. Phase II of the National Strategy on Community Safety and Crime Prevention, announced in 1998, will provide $32 million annually to increase individual and community safety by equipping Canadians with the knowledge, skills and resources they need to support and enhance crime prevention in their communities. This initiative will focus primarily on measures directed to address the needs of children and youth, Aboriginal people and women's personal security. In 1998-99, over 200 community-based projects have been approved.

These specific initiatives also complement other reforms within the criminal justice system which respond to the issue of violence in society, including violence against women. A new Firearms Control Act came into force in 1996. It creates restrictions on the ownership and use of firearms, including imposing minimum mandatory sentences for persons who use a firearm in the commission of violent offences; the registration and licensing of firearms and their owners; and the regulation of the storage, display, transportation and handling of firearms. Following a decision in 1995 by the Supreme Court of Canada that extreme intoxication inducing a state akin to automatism or insanity could excuse sexual assault and other offences, the Government of Canada amended the Criminal Code to prevent intoxication from excusing violence against another person. The Criminal Code establishes that each Canadian has a duty of care not to interfere with or threaten the bodily integrity of another person while in a state of self-induced intoxication. The effect of the law is that intoxication is not a defence to any crime which violates or threatens the bodily integrity of another person, such as assault, sexual assault, and murder. Other criminal law reforms of particular significance for women include: the 1994 amendments to strengthen peace bonds or protective orders for victims; and the 1997 specific prohibition of the practice of female genital mutilation.

In 1995, the Supreme Court of Canada made provision in the case of R. v. O'Connor for the disclosure of the therapeutic records of complainants in criminal cases where such records are in the possession of the Crown, and set out a common law procedure for the production and disclosure of records in the possession of third parties. In 1997, Parliament passed legislation governing the production of personal, medical, therapeutic and other records of complainants in cases of sexual assault and related offences. The Criminal Code was amended to permit records relating to victims to be produced only in accordance with a special procedure using carefully defined criteria which balance the need for the law to respect both the rights of accused persons and the rights of complainants. This new legislation has been challenged under the Charter in a case which is currently before the Supreme Court of Canada (R . v. Mills).

Aboriginal Peoples. While the Aboriginal peoples of Canada still face significant barriers, there has been some important progress. After five years of research, consultations and public hearings, the Royal Commission on Aboriginal Peoples completed its final report in November 1996. This report contained over 400 recommendations touching on all aspects of Aboriginal- government relations in Canada. The Royal Commission concluded that fundamental change is needed in the relationship between Aboriginal and non-Aboriginal people. In January 1998, the Government of Canada responded with its action plan Gathering Strength: Canada's Aboriginal Action Plan, including a Statement of Reconciliation. In it the Government of Canada committed to an approach which is aimed at renewing partnerships with Aboriginal people, strengthening Aboriginal governance, developing a new fiscal relationship, and supporting strong Aboriginal communities, people and economies. This approach builds on initiatives that the Government had begun while the Royal Commission was under way. In 1995, the Government of Canada released its policy on the implementation of the inherent right and the negotiation of Aboriginal self-government. Recognition of the inherent right is based on the view that the Aboriginal peoples of Canada have the right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship with their land and their resources. The federal approach gives Aboriginal communities the legitimate tools they need to make a tangible, positive difference in the lives of Aboriginal people and enable them to exercise greater control over their lives. The focus is on reaching practical and workable arrangements on the exercise of self-government through the participation of Aboriginal groups, the federal government and the relevant provinces and territorial governments. There are currently more than 80 self-government tables in various stages of negotiation across the country.

In August 1998, a final agreement with the Nisga'a Tribal Council, the Government of Canada, and British Columbia was initialled, settling a century old land claim and advancing self- government. It has been ratified by the Nisga'a people and is currently undergoing ratification in the provincial legislature. It represents several important firsts, including the first modern treaty in British Columbia. Through this Final Agreement, the Nisga'a receive ownership of 2,000 square kilometers of land, a cash transfer of $190 million, $10 million for a fisheries trust fund, $11.5 million for their participation in the Nass River fishery as well as gathering and management rights in a larger area.

Another significant development is the creation of a new territorial government. The map of Canada will change on April 1, 1999. As a result of the passage in 1993 of the Nunavut Land Claims Agreement and the Nunavut Act, the new territorial government of Nunavut is being created. It will cover one-fifth the land mass of Canada. Its population of 25,000 will be over 80 implementation commission has been created to advise governments and the Inuit organization that administers the land claim settlement on issues, such as infrastructure needs and government design. The first public election for the new government was held in February, 1999. Through their new government, Nunavut residents will be in charge of education, health, social services and other programs. The full transfer of responsibilities will be completed by 2009.

In summary, since the time period covered by Canada's Fourth Report, there have been several significant developments relating to Canada's efforts to improve the general protection of equality rights and the rights and status of minorities and other groups in Canada. In many cases, these developments are setting the stage for further progress, whether it is in increasing the representation of women, persons with disabilities, members of visible minorities, and Aboriginal peoples in the workforce, eliminating the advocacy of hatred, continuing the fight against violence against women, or overcoming difficulties faced by Aboriginal peoples.

Legal Rights, Criminal Justice and Youth Justice and the Protection of Children

There have been some important recent developments in relation to criminal and youth justice. These initiatives relate to Article 6 of the Covenant which deals with the death penalty, to Articles 14 and 26 in so far as they concern equality of treatment in the criminal justice system, to Articles 10 and 14 in so far as these provisions pertain to young offenders, and to Article 24 which addresses the protection of children.

Article 6. In 1976, Canada substituted life imprisonment for the death penalty in all cases where this remained as a penalty under the Criminal Code. However, the death penalty was retained under the National Defence Act, although it had never been used. Legislation to amend the National Defence Act and remove the death penalty was passed by Parliament and received Royal Assent on December 10, 1998.

Articles 9 and 14. The legislation to amend the National Defence Act mentioned above will also make extensive changes to the military justice system (to come into force in stages during this year) and will more closely align the military justice procedures and structures with those of the civil criminal process while preserving those characteristics of the system required to satisfy the unique requirements of the Canadian Forces. In particular, the Bill will:

• provide for an independent prosecutor appointed by the Minister of National Defence who will determine the charges to be tried by court martial;
• provide for military judges to be appointed for five year terms by the Governor in Council; and
• strengthen defence oversight and review by:

establishing an external and independent boards for the review of grievances made by military members and for the review of complaints made by members of the public and by military members about the conduct of military police;

• requiring the operation of the provisions of the new Bill to be reviewed every five years; and
• increasing the number of reports to Parliament on defence activities (Reports by the Judge Advocate General, the Chairperson of the Canadian Forces Grievance Board and the Chairperson of the Military Police Complaints Commission are now required by law).

In parallel with the amendments to the National Defence Act, a new police unit independent of the operational chain of command has been organized to investigate all serious and sensitive offences in the military. Also, in 1997, the summary trial process, which deals with approximately 90% of all disciplinary proceedings, was reformed to reduce jurisdiction and powers of punishment to the extent necessary for the maintenance of internal unit discipline and to enhance procedural fairness while maintaining the essential summary character of the process.

Articles 14 and 26. The Supreme Court of Canada recently addressed the issue of racism in the context of the criminal justice system and more particularly as it relates to jury selection in R. v. William (1998). Taking into account the potential impact of racial prejudice, the Court held that the accused, an aboriginal person, should be able to challenge prospective jurors for cause, that is to ensure that they do not harbour prejudice against aboriginal persons. The Court said that the accused's right to be tried by an impartial jury under section 11(d) of the Canadian Charter of Rights and Freedoms is a fair trial right. It added that it is also an anti-discrimination right, saying that the application, intentional or unintentional, of racial stereotypes to the detriment of an accused person ranks among the most destructive forms of discrimination, considering that the result may be the loss of the accused's very liberty.

Articles 10 and 14. The Government of Canada is working to renew and make more effective Canada's approach to youth crime. Canada's Fourth Report noted that a bill was tabled in 1994 to amend the Young Offenders Act. That legislation was passed in 1995. The Fourth Report also indicated that the law was being reviewed by a Federal-Provincial-Territorial Task Force of Senior Officials, and was to be reviewed as well by a Parliamentary Committee. The Task Force completed a report in 1996, making recommendations on key elements of the youth justice system. The Task Force report was referred to the House of Commons Standing Committee on Justice and Legal Affairs. After an extensive review, this Committee released its report, Renewing Youth Justice, in 1997. It too made recommendations for reform.

In response to this report, the Government of Canada released A Strategy for the Renewal of Youth Justice in 1998. The Response outlined the Government's proposed strategy for renewing Canada's approach to youth crime. The strategy focuses on three areas: promoting crime prevention and effective alternatives to the formal youth justice system; ensuring that youth crime is met with meaningful consequences; and emphasizing rehabilitation and reintegration. The Response indicated that the Minister of Justice would be asking Parliament to replace the Young Offenders Act with a new youth justice statute. This was to be done after intensive consultations. At the time of writing, work on new legislation was still under way.

Article 24. Bill C-27, An Act to Amend the Criminal Code (child prostitution, child sex tourism, criminal harassment and female genital mutilation) came into force on May 26, 1997. It provided for criminal legislation to deal with serious problems of violence against women and children, and to increase the protection of vulnerable women and children from abuse and exploitation. It produced strong measures against child prostitution. For example, it created an offence of aggravated procuring, with a minimum sentence of five years imprisonment, for a person living on the avails of prostitution in relation to a person under the age of 18, and who uses violence against the young person. The Bill also amended subsection 212(4) of the Criminal Code to increase its enforceability by making it easier to obtain evidence relating to an adult attempting to get sexual services from a person under the age of 18, by allowing the use of police decoys.

Canada took an extraordinary step in Bill C-27: it extended its territorial jurisdiction to empower Canadian courts to decide on certain prostitution-related offences involving youth even when these offences are committed abroad by Canadian citizens or permanent residents. Canada was one of the first countries to adopt such ground-breaking legislation against child sex tourism. This important and unusual amendment to the Criminal Code was intended to be a clear signal that Canadians will not tolerate our nationals taking advantage of children no matter in which country they are found.

Canada supported the adoption of the Declaration and Agenda for Action at the 1996 World Congress Against the Commercial Sexual Exploitation of Children (held in Stockholm). These documents address the need for legislative action prohibiting the commercial sexual exploitation of children, as well as for training, education and support services. The federal government's follow-up to the World Congress is being overseen by Senator Landon Pearson in her capacity as the Special Advisor on Children's Rights to the Minister of Foreign Affairs and International Trade. Senator Pearson has established a Committee which is a partnership of several federal government departments and agencies, as well as NGOs. The federal Department of Justice is also actively participating in international follow-up activities to the World Congress, including Council of Europe and European Union activities with a view to promoting international collaboration and co-operation in combating commercial child sexual exploitation.

As a follow-up to the World Congress, a summit was held in Victoria under the sponsorship of the federal government and others: Out from the Shadows: International Youth Summit of Sexually Exploited Youth, (March, 1998). Youth delegates prepared and presented their own Declaration and Agenda for Action, essentially calling for the participation of youth in the process of making laws and policies and of designing services. This document was presented to United Nations representatives in New York on June 18, 1998.

A multitude of initiatives have been undertaken in Canada to address the commercial sexual exploitation of children as a follow-up to the 1996 World Congress in Stockholm. A notable example is the partnering of Status of Women Canada with Kids Friendly in Vancouver to pilot a project, Stolen Innocence: A National Education Campaign Against the Commercial Sexual Exploitation of Children, in co-operation with the travel and tourism industries.

Enforcement and Promotion of Civil and Political Rights

Governments in Canada have taken a wide range of measures to enhance the enforcement and promotion of civil and political rights. Among other things, these measures assist in implementing the obligation of Canada to ensure that persons whose rights or freedoms have been violated have an effective remedy as guaranteed by Article 2 of the Covenant. Examples of some recent or ongoing initiatives are highlighted below.

Court Challenges Program. The Court Challenges Program, which was reinstated by the Government of Canada in 1994, was extended for another five years in 1998. This program is designed to enhance access to justice and to ensure that Charter rights receive their full measure of protection. It does so by providing funding for court challenges brought by individuals and groups against government legislation under the equality rights guarantees and official languages provisions of the Canadian Charter of Rights and Freedoms. The Program is administered by an independent non-profit organization consisting of representatives of equality-seeking groups representing disadvantaged communities and individuals, organizations representing minority official language communities, and law faculties and bar associations. Since its inception, the Program has provided financial support for several hundred court challenges.

Legal Aid. Canada continues to support legal aid as a key element of access to justice for economically disadvantaged Canadians. The need to discipline federal expenditures over the last decade has resulted in some reduction in the federal contribution toward provincially delivered legal aid programs. However, in the face of fiscal restraint, Canada has put greater emphasis on dealing with legal aid policy issues and managing pressures on the program. We believe that the current agreements between federal government and the provinces strike an appropriate balance between the desire for program flexibility and the objective of ensuring a basic level of service to Canadians across the country. The current federal funding for criminal legal aid is approximately $82 million. A Permanent Working Group on Legal Aid, consisting of representatives of the federal, provincial and territorial governments, and of provincial legal aid plans, was established in 1996 to provide an effective forum for dealing with policy issues and for ongoing discussion, information exchange and sharing of strategies in search of less costly systems that will meet the needs of the Canadian public.

Law Commission of Canada. The Law Commission of Canada is an arm's length body that reports to Parliament through the Minister of Justice. It began operations on July 1,1997. It was created to provide the Government of Canada with multidisciplinary, independent advice on Canada's laws and legal system. Its governing legislation sets out a number of principles to guide the Commission's work, namely: a multidisciplinary approach to its work; openness and inclusiveness; partnership; innovation; responsiveness and cost-effectiveness. The Commission's structure supports a multidisciplinary approach to legal problems. There is one full-time President of the Commission, and four part-time Commissioners. The Commission has a small Secretariat and an Advisory Council drawn from all parts of Canadian society. The Advisory Council meets twice yearly to review and advise on the Commission's work. The Commission has independence in finalizing its agenda, but must consult with the Minister of Justice on the program of studies that it proposes to undertake. The Minister of Justice has the power to refer issues to the Commission for study.

In November 1997, the Minister of Justice requested a report addressing processes for dealing with institutional child physical and sexual abuse. The Minister asked the Commission to focus on alternative dispute resolution processes that would best respond to victims of abuse that occurred in government-run, as well as government-funded and sponsored institutions in the past. The Government referred this issue to the Commission because it is a complex and difficult justice issue, not a narrow legal question. The tragedy of institutional child abuse has had lasting impacts on many Canadians, their families, and their communities, particularly our aboriginal people. Both the federal and provincial/territorial level governments are grappling with these issues. As an independent body, set up to ensure that Canada's legal system meets the changing needs of Canadian society, and to look at legal issues in their broader social context, the Law Commission is ideally situated to advise the Government on this issue.

These are only a few highlights of measures taken by Canada since the time period covered by the Fourth Report to facilitate access to justice and to promote scrutiny of Canadian laws with a view to enhancing the protection of civil and political rights.

Conclusion

The International Covenant on Civil and Political Rights continues to represent for Canada an important international benchmark for human rights. Canada strives to meet and exceed the human rights standards established by the Covenant. A wide range of laws and policies have been established to form the basic framework for the protection of human rights, but we recognize that our constantly evolving society demands continuing vigilance and determination to protect and promote civil and political rights. Canada has taken several steps since the time period covered by the Fourth Report to improve the laws and policies that make up the basic framework for protecting human rights. Canada has also taken many other measures to strengthen the protection of civil and political rights in areas of law and policy outside the basic framework. As much as we have done, there is undoubtedly more that could and should be done and we welcome the questions and comments of the United Nations Human Rights Committee in this respect. Canada looks forward to discussing its efforts in implementing the International Covenant on Civil and Political Rights as the Human Rights Committee considers Canada's Fourth Report under the Covenant.