International Covenant on Civil and Political Rights Covering the period

International Covenant on Civil and Political Rights  Covering the period
International Covenant on Civil
and Political Rights
Fifth Report of Canada
Covering the period
January 1995 – April 2004
Canada’s Fifth Report on the United Nations’
International Covenant on Civil and Political Rights
FOREWORD
The International Covenant on Civil and Political Rights was adopted by the United Nations
General Assembly on December 19, 1966. Canada acceded to the Covenant on May 19, 1976.
States Parties are required to report to the United Nations on measures they have taken to give
effect to the Covenant. Canada’s Fifth Report on the International Covenant on Civil and
Political Rights covers the period of January 1995 to April 2004. It was prepared in close
collaboration by the federal, provincial and territorial governments and describes significant
measures and initiatives taken by these governments with respect to the Covenant during this
period.
Through publication of this report, it is hoped that Canadians will be encouraged to become
familiar with the measures adopted in Canada to ensure the implementation of the Covenant and
to broaden their understanding of the obligations contracted by Canada through accession to this
important international treaty.
Copies of the report, in both official languages, may be obtained free of charge from the Human
Rights Program of the Department of Canadian Heritage. This report is also available on the
Human Rights Program Web site at: http://www.pch.gc.ca/progs/pdp-hrp/.
Human Rights Program
Department of Canadian Heritage
25 Eddy Street (15-11-B)
Gatineau QC
K1A 0M5
Tel: 819-994-3458
Fax: 819-994-5252
E-mail: [email protected]
Minister of Public Works and Government Services Canada 2004
Catalogue. No. CH37-4/7-2004E-PDF
ISBN 0-662-38101-7
Canada’s Fifth Report on the United Nations’
International Covenant on Civil and Political Rights
Table of Contents
Introduction ..................................................................................................1
Part I – Measures Adopted by the Government of Canada .........................3
Part II – Measures Adopted by the Governments of the Provinces* ..........48
Newfoundland and Labrador ......................................................................... 49
Prince Edward Island .................................................................................... 58
Nova Scotia................................................................................................... 61
New Brunswick.............................................................................................. 66
Québec.......................................................................................................... 73
Ontario .......................................................................................................... 86
Manitoba ..................................................................................................... 100
Saskatchewan............................................................................................. 114
Alberta......................................................................................................... 123
British Columbia .......................................................................................... 138
Part III – Measures Adopted by the Governments of the Territories* ......152
Nunavut....................................................................................................... 153
Northwest Territories................................................................................... 157
Yukon .......................................................................................................... 161
Index of Articles........................................................................................166
* In geographical order, from east to west
Canada’s Fifth Report on the United Nations’
International Covenant on Civil and Political Rights
Introduction
1.
The present report outlines key measures adopted in Canada from 1995 to April 2004 to
enhance its implementation of the International Covenant on Civil and Political Rights
(the Covenant). The report is focused primarily on issues raised by the Human Rights
Committee in its Concluding Observations, issued after review of Canada’s Fourth
Report in 1999, and on significant developments and case law since this review.
2.
In order to improve the timeliness and relevance of reporting to UN treaty bodies, effort
has been taken to keep this report concise and focused on key issues. To that end, where
articles under this Covenant encompass rights included within other conventions to which
Canada is a party, information detailed in reports under these other conventions are
referred to but, with few exceptions, not repeated in this report.
3.
Canada has taken note of the concerns and recommendations raised by the Human Rights
Committee. Information pertaining to these concerns can be found in this report under the
relevant article of the Covenant.
4.
The Concluding Observations of the Human Rights Committee and Canada's previous
reports were provided to all federal departments and provincial and territorial
governments. Canada’s reports are available to the public on the website of the
Department of Canadian Heritage at : http://www.pch.gc.ca/progs/pdphrp/docs/index_e.cfm.
Consultations with Non-Governmental Organizations
5.
The Government of Canada invited 58 non-governmental organizations to give their
views on the issues to be covered in the federal portion of the report. One response was
received from Focus on the Family Canada (FFC), which has been forwarded to the
Human Rights Committee.
6.
FFC has expressed concerns with respect to Canada’s compliance with the Covenant in
relation to the following:
•
•
Introduction
Bill C-13, An Respecting Assisted Human Reproduction, which, according to the
FFC, does not provide for human dignity and the inherent right to life of all human
beings, in particular people with disabilities;
An Act to Amend the Criminal Code that provides for hate crime legislation to include
discrimination based on “sexual orientation” and which, according to FFC, poses a
serious threat to freedom of thought, conscience and religion and freedom of
expression;
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•
•
Introduction
the absence of a federal level ministry tasked with a mandate to ensure that Canadian
families are given protection and support; and
the formulation of legislation that changes the definition of marriage to allow any two
persons to marry, including same-sex couples.
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Canada’s Fifth Report on the United Nations’
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Part I
Measures Adopted by the
Government of Canada
Canada’s Fifth Report on the United Nations’
International Covenant on Civil and Political Rights
Article 1: Right to self-determination
7.
Canada subscribes to the principles set forth in the International Covenant on Civil and
Political Rights. Article 1 of the Covenant is implemented without discrimination as to
race, religion or ethnic origin. All Canadians have meaningful access to government to
pursue their political, economic, social and cultural development.
8.
The Government of Canada acknowledges the Human Rights Committee’s request for
further explanation of the elements that make up Canada’s concept of self-determination
as it is applied to Aboriginal peoples. As the Government of Canada’s concept of selfdetermination as it may be applied to Aboriginal peoples is continuing to evolve in
relation to its ongoing participation in the UN Working Group on the Draft Declaration
on the Rights of Indigenous Peoples and other international fora, the Government of
Canada will present information on this specific issue at the oral presentation of this
report.
9.
Information pertaining to the Government of Canada’s implementation of the Royal
Commission on Aboriginal Peoples and Canada’s policy on inherent aboriginal rights is
included under Article 27 of this report. Provincial and territorial sections of this report
also provide related information with respect to Aboriginal peoples under Article 27.
Article 2: Equal rights and effective remedies
Canadian Charter of Rights and Freedoms
10.
The appeal in Doucet-Boudreau v. Nova Scotia (Minister of Education)1 pertained to the
nature of the remedies pursuant to subsection 24(1) of the Canadian Charter of Rights
and Freedoms (appropriate and just remedies under the circumstances) that may be
granted to uphold the minority-language education rights guaranteed by the Charter. The
Supreme Court of Canada ruled that the purposive interpretation of the remedies provided
in the Charter requires that the intent of the guaranteed rights and remedies be furthered.
In this regard, the courts must grant effective and appropriate remedies that fully and
meaningfully protect the rights and freedoms guaranteed by the Charter. The Court also
ruled that the superior courts have concurrent, permanent and full jurisdiction to grant
remedies that they consider just and appropriate under the circumstances. The Court
stated that these remedies include the power to grant injunctions against the executive
branch and to monitor the implementation of the remedies ordered.
Specific Concern of the Human Rights Committee
11.
1
In its Concluding observations (paragraph 9), the Committee recommended that human
rights legislation be amended to guarantee access to a competent tribunal and effective
remedy in all cases of discrimination. The Government of Canada emphasizes that the
Canadian Human Rights Commission and Tribunal have a broad mandate with respect to
Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3.
Government of Canada
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complaints alleging discrimination. The Canadian Human Rights Act (CHRA) also
provides for a range of remedies at the tribunal disposal.
12.
On April 8, 1999, the Minister of Justice announced the establishment of an independent
Panel, chaired by Mr. La Forest, a former Justice of the Supreme Court of Canada, to
conduct a review of the CHRA. The report was released on June 21, 2000 and contains
165 recommendations covering various issues ranging from significant structural and
process changes to the addition of new grounds of discrimination. The Government has
undertaken a cost analysis of various structural models, begun consideration of the
additional grounds recommended for inclusion in the Act, and consulted with both the
Canadian Human Rights Commission and Tribunal to understand the need for and impact
of potential changes.
13.
In follow-up to the La Forest report, the Canadian Human Rights Commission introduced
new process reforms in May 2003 aimed at reducing its chronic backlog of cases and the
excessive delays in the complaints process. These reforms include: (1) using Alternative
Dispute Resolution in all stages of the complaints process; and, (2) referring some cases
to the Canadian Human Rights Tribunal where the claimant will represent himself/herself
without Canadian Human Rights Commission assistance.
14.
Discussions on the repeal of s.67 of the CHRA - with the goal of ensuring all Aboriginal
people, especially women, receive the full protection of the Act - continue in anticipation
of the Government of Canada moving forward on CHRA reform.
15.
The Committee expressed concerns that there may be gaps between the protection of
rights under the Canadian Charter and other federal and provincial laws, and
recommended that measures be introduced to ensure the full implementation of the
Covenant. Canada continues its efforts in this area.
•
In April 2001, the Standing Senate Committee on Human Rights was established. It
was given a broad mandate to examine issues relating to human rights and, inter alia,
the machinery of government dealing with Canada’s international and national human
rights obligations. The Senate Committee tabled its first report on December 13,
2001, which identifies a number of issues for further study as well as
recommendations for action. This report is being taken into consideration in
developing policies that will further enhance the implementation of human rights
instruments in Canada.
•
In October 2002, a federal Deputy Ministers Committee was established with the
mandate to provide integrated leadership on human rights issues and the
responsibility to ensure coordinated communication, dialogue and improved
horizontal management and share responsibility for implementing international
human rights obligations. It should be noted that some provinces have also begun
implementing additional interdepartmental committees to deal with human rights
issues within their jurisdictions.
Government of Canada
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16.
With respect to the Committee’s more specific recommendation, which suggests that
consideration be given to establishing a public body for overseeing implementation and
reporting on deficiencies, this has been discussed and will be given further consideration
within the context of follow-up to the recommendations of the CHRA Panel Review.
Article 3: Equal rights of men and women
17.
Canada reports more fully on its implementation of this article in its reports on the
Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW). Canada’s fourth and fifth reports on CEDAW, an update paper and the
statement made by the Head of Delegation during Canada’s 2003 appearance before the
CEDAW treaty body are available on the Internet at www.pch.gc.ca/progs/pdphrp/docs/cedaw_e.cfm. These documents provide information on Canada’s efforts to
achieve equal rights and improve the situation of women.
18.
While Canadian women have made many gains in achieving formal equality, full
substantive equality has yet to be achieved. Building upon the foundations of Federal
Plan for Gender Equality (1995-2000), the Government of Canada, in 2000, approved the
Agenda for Gender Equality (AGE), a government-wide multi-year strategy to ensure
that gender equality becomes a reality for Canadian women. The components include
accelerating implementation of gender-based analysis commitments; enhancing voluntary
sector capacity and engaging Canadians in the policy; and meeting Canada's international
commitments and treaty obligations.
19.
Following a number of high profile and lengthy pay-equity cases, an independent task
force and secretariat conducted a comprehensive review of relevant legislation,
regulations and guidelines. The aim of the review was to identify an efficient way to
achieve and implement effective pay-equity policies. The Pay Equity Task Force released
its report in May 2004, and government officials are studying the report.
20.
Since the adoption of the Canadian Human Rights Act in 1977, the status of women in
Canada has improved markedly. However, more than one in five complaints received by
the Canadian Human Rights Commission over the last few years involved discrimination
on the grounds of sex. Many complaints pertain to pregnancy, for example not hiring or
renewing qualified women because they were pregnant. Sexual harassment in the
workplace is another area where there is a need for continuing vigilance. The Canada
Labour Code requires every employer to make every reasonable effort to ensure that no
employee is subjected to sexual harassment. They are also required to issue a policy
statement concerning sexual harassment. To assist employers in meeting the legal
requirements and develop anti-harassment policies, the Canadian Human Rights
Commission, in cooperation with Human Resources Development Canada and Status of
Women, developed in 2001 a guide for employers, entitled Anti-harassment Policies for
the Workplace.2
2
http://www.chrc-ccdp.ca/publications/anti_harassment_toc-en.asp
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Specific concern of the Human Rights Committee
21.
Canada shares the Committee’s concern (paragraph 20 of the Concluding Observations)
that women have been disproportionately affected by poverty. Tackling poverty,
particularly for children and lone-parent mothers, as well as for Aboriginal and
immigrant women, continues to be a challenge and priority for the Government of
Canada. However, the most recent data available indicates that, starting in 1997, there has
been a continuous downward trend in poverty rates in Canada.
22.
Over the last few years, the federal government has introduced a series of measures that
have steadily developed support for low- and modest-income families with children.
Governments across Canada have continued to introduce new or enhanced measures to
improve women's situation in paid work, to help families meet their income needs and
balance employment and family responsibilities, and to gain access to other economic
resources such as affordable housing. As part of its commitment to reduce poverty and
further women's economic equality, the Government of Canada is pursuing activities in a
variety of areas:
•
•
•
parental benefits under the Employment Insurance (EI) program were extended from
six months to one year;
El coverage is now extended to part-time workers, the majority of whom are women;
the National Child Benefit System commits all levels of government to reduce child
poverty by providing increased Canada Child Tax Benefits to low income families as
well as child-related services (see article 24).
23.
In 2003, the government established a number of initiatives to promote women's
entrepreneurship including the introduction of tax measures in support of the small
business sector and the creation of a Task Force on Women Entrepreneurs. The task
force released its report in October 2003, and made recommendations in four areas:
recognition of the challenges faced by women entrepreneurs; information, training and
retraining; access to capital; and export marketing. The government is currently assessing
these recommendations and will report on how these are addressed in its next report
under the CEDAW.
24.
In its Concluding observations (paragraph 20), the Committee also expressed its concern
that social program cuts in recent years have exacerbated the inequalities suffered by
women affected by poverty. As explained further in Canada’s Fourth Report on the
International Covenant on Economic Social and Cultural Rights, the 1990s were a period
of major transformation in public policy for Canada. It was during this period that
Canadians and their governments became convinced that massive annual deficits and
growing public debt could not continue. There was increasing concern about the longterm sustainability of fundamental social programs. During this period, the federal,
provincial and territorial governments faced the challenge of fiscal responsibility and
bringing their fiscal deficits under control. As governments restructured and their fiscal
situations improved, they were able to reinvest in a number of initiatives supporting
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Canadian families with children, and thereby benefiting women, and beginning to address
any disproportionate impacts that earlier program cuts may have had on women.
25.
Collectively, federal, provincial and territorial governments succeeded in improving
economic conditions and improving the situation for women. For example, in 2002:
•
•
•
•
•
•
women’s participation rate in the labour force increased to 59.8 percent;
employment growth was greater for women (1.4 percent) than men (0.6 percent);
growth in full-time employment for women (1.5 percent) exceeded that of men (0.4
percent);
7.1 percent of all female labour force participants were unemployed compared to 8.1
percent of male labour force participants;
72 percent of women with children less than age 16 living at home were part of the
paid labour force; and
67 percent of female lone parents with children less than 16 living at home were
employed (increasing 17 percentage points between 1995 and 2002).
26.
Overall, low-income rates for women have declined since the mid-1990s. According to
Statistics Canada’s after-tax Low-Income Cut-offs, the poverty rate of women aged 18 to
64 has decreased from a high of 14.7 percent in 1996 to 11.5 percent in 2001. Likewise,
the low-income rate for female lone parents has declined from a high of 49 percent in
1996 to 31.9 percent in 2001.
27.
In 2003-04, the federal government increased the Canada Health and Social Transfer
(CHST), the primary mechanism by which the Government of Canada transfers funds to
provincial and territorial governments for health care, post-secondary education, social
assistance and social services, including early childhood development, to $37.9 billion
(compared to $25.8 billion in 1997/98).
Aboriginal Women
28.
In its Concluding Observations (paragraph 19), the Human Rights Committee
recommended that issues related to the status of Aboriginal women and children still
outstanding after the 1985 amendments to the Indian Act be addressed.
29.
One such issue is the gap in law with respect to matrimonial real property on reserve
lands, which has been a pressing concern to both First Nations and to the Government. At
present, people living on a reserve have fewer rights regarding their matrimonial home
when a marriage or common-law relationship ends than do people living off a reserve.
Most of the legal rights and remedies found in Canadian laws relating to the matrimonial
home, which apply off reserves, are not available to people living on a reserve.
30.
In September 2003, a new research report on the socio-economic effects of marriage
breakdown on First Nation women and their children provided further insight into onreserve matrimonial real property issues. The report, “Urban Aboriginal Women in
British Columbia and the Impacts of the Matrimonial Real Property Regime” is an
Government of Canada
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Canada’s Fifth Report on the United Nations’
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exploratory study based on interviews with women who, following marital breakdown,
left their reserves to live in urban British Columbia. This report is one of several research
projects recently undertaken by the Department of Indian and Northern Affairs Canada in
its efforts to better understand how contemporary matrimonial real property issues have
affected the lives of reserve residents, most particularly women.
31.
In November, 2003, the Standing Senate Committee on Human Rights, which had
undertaken a study on the issue, tabled an interim report, entitled "A Hard Bed to Lie In:
Matrimonial Real Property on Reserve." This report recommends an amendment to the
Indian Act which would allow provincial/territorial laws with respect to the division of
both personal and real matrimonial property to apply on reserves. The Government of
Canada is now studying this report and its recommendations.
32.
Under Gathering Strength, Canada added $500,000 annually to the Aboriginal Women’s
Program, which provides support to independent Aboriginal women’s organizations and
community groups, to enable these women’s organizations or groups to: undertake
research, develop strategies, enter into discussions, distribute information, participate in
Aboriginal self-government initiatives, and communicate with other Canadians and
Aboriginal people on the position of Aboriginal women in regards to Aboriginal selfgovernment.
Article 6: Right to life
33.
The Immigration and Refugee Protection Act (IRPA) came into effect June 28, 2002.
Risk to life constitutes an express ground for protection in IRPA (section 97).
Canadian Charter of Rights and Freedoms
34.
The Supreme Court of Canada, in United States v. Burns,3 an extradition case, decided
that assurances that the death penalty will not be imposed by the requesting State are
constitutionally required by section 7 of the Canadian Charter of Rights and Freedoms
(the Canadian Charter) in all but exceptional cases.
Specific concern of the Human Rights Committee
35.
In its Concluding observations (paragraph 12), the Committee recommended that Canada
take measures to address the problem of homelessness.
36.
In 1999, the Government of Canada launched the three-year National Homelessness
Initiative (NHI) to help reduce and prevent homelessness across Canada. This included
$305 million in funding under the NHI's cornerstone program for the Supporting
Communities Partnership Initiative (SCPI) which is designed to help communities across
Canada, in partnership with all levels of government and not-for-profit and private
stakeholders, to plan and implement comprehensive local strategies addressing the needs
3
United States v. Burns, [2001] 1 S.C.R. 283.
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of homeless men, women, children and youth. As a result, many thousands of lowincome housing units in a state of disrepair have been brought back, through renovation,
to safe conditions. Some of these renovated units are shelters for victims of family
violence and rooming houses for people at greatest risk of homelessness.
37.
On March 4, 2003, the Government of Canada renewed its commitment to fighting
homelessness in communities across Canada by investing $405 million over the next
three years. There will be a stronger focus on longer-term transitional and supportive
interventions and preventative measures.
38.
In November 2001, the Government of Canada introduced a $680 million Affordable
Housing Program to stimulate the production of affordable housing, including units for
the relative homeless. An additional $320 million investment was made in 2003, bringing
the total investment to $1 billion by 2007-2008 ($2 billion with equal financial
contributions from the provincial and territorial governments). The Government of
Canada also announced a $384 million investment in housing renovation. The Affordable
Housing Program will be evaluated in a few years, when sufficient data is available.
39.
The Government of Canada’s residential renovation assistance was evaluated in 2002.
This evaluation confirmed that, overall, the assistance is well targeted to low-income
households, including those at risk of homelessness. For example, in 2002: 20% of the
renovated rooming houses were occupied by the former homeless; more than one-third of
the occupants of renovated rooming houses and 10% of the occupants of renovated rental
units reported that hey had been homeless at some time in the pasty five years; 37% of
the occupants of renovated rooming houses and 7% of the occupants of renovated rental
units reported that they had used shelters in the past five years; more than 50% of the
owners of renovated rooming houses and rental units said that they had rented to
homeless people; and 47% said that they have an increased number of tenants who were
previously homeless. These data indicate that Government’s of Canada renovation
assistance is reducing the level of homeless population.
40.
A total of $161 million in additional funding was also made available to address the
needs of particularly vulnerable and/or over-represented groups within the homeless
population, namely Aboriginal persons ($59 million), youth ($59 million) and victims of
family violence ($43 million).
Article 7: Protection against torture
41.
More information is provided in the reports the Government of Canada has submitted
pursuant to the Convention against Torture.
Medical or scientific experimentation
42.
New Clinical Trial Regulations of the Food and Drug Act came into effect in September
2001. Among other things, the Regulations require the sponsor to secure approval of the
research protocol by a Research Ethics Board (REB). The principal mandate of an REB is
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to "ensure the protection of the rights, safety and well-being" of research subjects. The
Regulations also require clinical trial sponsors and investigators to adhere to the
principles of good clinical practice, of which free and informed consent is a fundamental
element. The REB is responsible for reviewing all research involving human subjects
funded, conducted, and supported by the Department, and operates in accordance with
the Tri-Council Policy Statement: Ethical Conduct of Research Involving Humans.4
Violence against Women
43.
Eliminating systemic violence against women is a priority for the Government of Canada.
Canada recognizes that gender violence, of any kind, is a violation of fundamental human
rights. The government reaffirmed its commitment to reduce family violence, particularly
against women and children, by funding a third phase of the Family Violence Initiative,
where policy-makers, researchers and community groups integrate family violence
prevention and can be better equipped to support policy and program action. Further
information on the Family Violence Initiative is available in Canada’s reports under the
CEDAW and the ICESCR.
44.
In December 2002, the Federal-Provincial-Territorial Ministers Responsible for the
Status of Women issued a report entitled Assessing Violence Against Women: A
Statistical Profile.5 This report provided evidence that the incidence and severity of
assaults against women appears to have slightly declined over the past decade. However,
overall, violence against women, particularly young women, continues to be a persistent
social and economic problem. Family Violence in Canada: A Statistical Profile 2003 was
also recently released.
45.
In September 2003, Federal-Provincial-Territorial Ministers Responsible for the Status of
Women concluded their 22nd annual meeting, reaffirming their commitment to
advancing equality for women. Ministers focused attention on the circumstances of
Aboriginal women, both on- and off-reserve, with violence as one of the priorities.
Accordingly, Ministers established a working group to develop a plan of action to guide
their work in this important area.
Non-refoulement
46.
Pursuant to s. 97 of the Immigration and Refugee Protection Act,6 the risk of torture,
within the meaning of Article 1 of the Convention against Torture, and the risk of cruel
and unusual treatment or punishment are grounds for conferring protection in Canada.
Specific concerns of the Human Rights Committee
47.
In its Concluding observations (paragraph 14), the Human Rights Committee expressed
its concerns that Canada considers that it is not required to comply with requests for
4
http://www.pre.ethics.gc.ca/english/policystatement/policystatement.cfm
http://www.swc-cfc.gc.ca/pubs/0662331664/index_e.html
6
http://laws.justice.gc.ca/en/I-2.5/index.html. which came into force on June 28, 2002.
5
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interim measures. Canada is of the view that interim measures requests are non-binding.
Article 39(2) of the Covenant provides that the Committee shall establish its own rules of
procedure. Rule 86 of the Committee’s Rules of Procedure provides that the Committee
may inform the State of its views as to whether interim measures may be desirable to
avoid irreparable damage to the victim of the alleged violation. The language of Rule 86
is consistent with the non-binding nature of the Committee’s views. Neither the
Covenant nor the Optional Protocol provides for the Committee to make orders binding
on States.
48.
Nevertheless, the Government of Canada always gives careful consideration to interim
measures requests from the Committee, and will respect them where it is possible to do
so. Canada notes that it usually acts in accordance with the interim measures requests
issued by human rights bodies. It is committed to do so in the future, although the
decision whether or not to act in accordance with an interim measures request must
necessarily be made on a case-by-case basis. This should not in any way be construed as
a diminution of Canada’s commitment to human rights or its ongoing collaboration with
the Committee.
Canadian Charter of Rights and Freedoms
Mandatory Minimum Penalties
49.
The Supreme Court of Canada recently upheld the constitutionality of a mandatory
minimum penalty of four years for the use of a firearm in criminal negligence causing
death,7 but commented on the negative effects of mandatory penalties in introducing
rigidity into the sentencing process. In determining whether a mandatory minimum
sentence constitutes cruel and unusual punishment (s. 12 of the Canadian Charter),
Canadian courts are careful to consider both whether the sentence actually imposed is
grossly disproportionate to what would have been appropriate for the particular offender
and whether the statutory minimum is grossly disproportionate, taking into account
“reasonable hypothetical circumstances”.
50.
The Criminal Code contains 29 offences that carry mandatory minimum penalties. They
fall into eight categories - impaired driving and blood alcohol over .08, betting and bookmaking, treason, 1st and 2nd degree murder (mandatory life), use of a firearm in an
offence, use of a firearm in 10 listed violent offences, possession, trafficking etc of
various prohibited firearms, and living off the avails of child prostitution - but firearms
and impaired driving offences account for the majority of the 29 offences.
Non-refoulement
51.
7
8
In Suresh (Minister of Citizenship and Immigration),8 the Supreme Court indicated the
Immigration Minister should generally decline to deport refugees where on the evidence
http://www.canlii.org/ca/cas/scc/2000/2000scc39.html
Suresh c.Canada (Minister of Citizenship and Immigration), [2002] 1 R.S.C. 3.
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there is a substantial risk of torture and that only in exceptional circumstances should a
person be deported to a country where they would be at risk of torture.
Justification of the use of reasonable force by parents
52.
The Supreme Court of Canada, in Canadian Foundation for Children, Youth and the Law
v. Canada (Attorney General) dealing with the justification of the use of reasonable force
by parents and teachers by way of correction of child or pupil,9 referred to the preamble
and to Article 7 of the Covenant as well as to the provisions of the Convention on the
Rights of Child. The Court concluded that from these international obligations, it follows
that what is "reasonable under the circumstances" will seek to avoid harm to the child and
will never include cruel, inhuman or degrading treatment. The Court concluded that
neither the Convention on the Rights of the Child nor the Covenant explicitly requires
state parties to ban all corporal punishment of children. It also examined the views
expressed by the Human Rights Committee and noted that in the process of monitoring
compliance with the Covenant, the Human Rights Committee of the United Nations has
expressed the view that corporal punishment of children in schools engages Article 7's
prohibition of degrading treatment or punishment, however the Committee has not
expressed a similar opinion regarding parental use of mild corporal punishment.
Article 8: Protection against slavery and forced labour
53.
The Government supports various prevention efforts within Canada designed to prevent
human trafficking and forced prostitution, particularly among vulnerable populations.
The Canadian approach has been to facilitate legitimate freedom of movement, while
working toward comprehensive domestic and international policies to prevent the kinds
of criminal activities which exploit individuals and erode the integrity of border control
systems.
54.
In February 2004, the federal Interdepartmental Working Group on Trafficking in
Persons was mandated to coordinate federal efforts to address human trafficking and
develop a federal strategy, which will focus on the prevention of trafficking, the
protection of its victims and the prosecution of traffickers.
55.
In March 2004, the Canadian Minister of Justice announced a review of the Criminal
Code to assess the need for any additional reforms to strengthen the criminal justice
system's response to trafficking in persons. Other recent federal anti-trafficking measures
include: the establishment by the RCMP of the Human Trafficking Investigative Unit to
coordinate domestic and international trafficking investigations; a training seminar on
trafficking for police, prosecutors, immigration, customs and consular officials, co-hosted
by the Department of Justice and the International Organization for Migration in March
2004; a forum on human trafficking, hosted by the Canadian Ethnocultural Council, the
Minister of Justice and the Secretary of State (Status of Women) in March 2004; the
development and distribution of a Government of Canada anti-trafficking poster through
9
Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76.
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police stations, victim services, community centres, refugee and immigrant centres across
Canada, and; the development of a website on trafficking in persons with related
information and links.
56.
Trafficking in persons is prohibited by various offences in the Criminal Code of Canada,
including forcible confinement, kidnapping, extortion, assault and prostitution-related
offences. In addition, the Immigration and Refugee Protection Act includes a specific
offence against trafficking in persons, which provides for severe penalties: fines of up to
$1 million, and imprisonment for up to life. The Act lists specific aggravating factors
which apply to both the trafficking in persons and human smuggling offences. These
include subjecting the victim to humiliating or degrading treatment, including with
respect to work or health conditions or sexual exploitation. The Act also contains a new
inadmissible class to deal specifically with human traffickers. It allows for the forfeiture
of money and property seized from traffickers, an increase in penalties and new
provisions against the possession and use of fraudulent documents in immigration-related
crimes.
International
57.
Canada took a leading role in the development of the United Nations’ Protocol to
Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
supplementing the United Nations’ Convention against Transnational Organized Crime,
both of which Canada ratified on May 13, 2002. Canada also ratified the International
Labour Organization’s Worst Forms of Child Labour Convention No.182 on June 6,
2000. Canada has signed the Optional Protocol to the Convention on the Rights of the
Child on the Sale of Children, Child Prostitution and Child Pornography on November
10, 2001 and has undertaken measures to facilitate its ratification in the near future.
Canada is also encouraging other States to ratify and implement these new instruments
quickly.
58.
Canada is also taking a leading role in other international fora to combat the smuggling of
migrants and the trafficking of human beings. For example, Canada held the Presidency
of the G8 for 2002 and is working in both the Lyon and Roma groups (transnational
organized crime and counter-terrorism working groups respectively) to address these and
other international organized crime issues.
59.
The Government of Canada provides support to multiple international prevention efforts
designed to address the root causes of human trafficking in source States. For instance, it
has committed over $3 million to eliminate the trafficking of children into forced labour
and to support the rehabilitation of children who have been trafficked. Additionally
Canada has distributed a multilingual (14 languages) Anti-Trafficking pamphlet through
its missions abroad and to non-governmental organizations with access to potential
trafficking victims in source States.
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Article 9: Right to liberty and security of person
National Defence Act
60.
A number of amendments to the National Defence Act in 1999 dealt with deprivation of
liberty and arbitrary detention. One of the changes was that under the old legislative
regime, release from pre-trial custody was done by way of petition to the Minister. Often
this was a lengthy process and resulted in longer periods of pre-trial detention. However,
under the changes to the Act a military judge now reviews pre-trial custody, in a much
speedier fashion, with appeals being heard by the Court Martial Appeal Court.
Anti-terrorism Act
61.
Following the terrorist attacks against the United States of 11 September 2001, Canada
undertook a comprehensive review of criminal, security and other relevant legislation
with a view to addressing the new threat. The review resulted in the Anti-terrorism Act.
Most of the provisions came into force on December 24, 2001, and with the last
proclamation on 6 January 2003, it is now fully in force. The preamble to the Antiterrorism Act recognizes that terrorism is a matter of national concern but this concern
must be addressed while continuing to respect and promote the values reflected in, and
the rights and freedoms guaranteed by, the Canadian Charter of Rights and Freedoms.
62.
The Act addresses a number of specific areas and implements Canada’s international
obligations under Security Council resolution 1373 of 28 September 2001. Specific
amendments include a definition of “terrorist activity”, new criminal offences and
sentences, changes to evidence laws, and powers and procedures for dealing with the
financing of terrorism.
63.
The amendments contain new provisions respecting the arrest and detention of persons to
prevent terrorist activities, based on existing criminal law powers. Those suspected of
involvement in criminal offences are subject to the normal process of investigation and
prosecution. As a preventive measure, however, any peace officer who believes on
reasonable grounds that a terrorist activity will be carried out may obtain a judicial arrest
warrant and those suspected of involvement and identified may be arrested and detained,
if there are grounds to suspect that the arrest is necessary to prevent the terrorist activity.
Where there are exigent circumstances, suspects may be arrested without a warrant.
Anyone arrested must be taken before a judge within 24 hours if a judge is available and
otherwise as soon as possible. Once before the judge, the suspect can be directed to
comply with a court order to keep the peace and meet any specific requirements imposed.
If the suspect agrees, he or she must be released, subject to re-arrest and prosecution if
the order is not complied with. If the suspect refuses to agree, he or she may be detained
for up to 12 months. At the end of this period, the suspect must be released, subject to
the possibility of the State bringing a further recognizance application. In all
proceedings, once the suspect has been arrested, the burden of establishing the existence
of the circumstances needed to obtain a recognizance order lies with the State.
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64.
The legislation also contains powers to conduct judicial investigative hearings (s. 83.28
of the Criminal Code) at which attendance by anyone specified by the judge to have
direct and material information related to a terrorism offence is mandatory, and those
ordered to attend may be arrested and detained for failure to attend or if there is reason to
believe they might be about to flee. The compatibility of these provisions with the
Canadian Charter of Rights and Freedoms has been examined by the Supreme Court of
Canada. On June 23rd, 2004, in Application under s. 83.28 of the Criminal Code (Re), the
majority of the Court stated that the challenge for democracies in the battle against
terrorism is to balance an effective response with fundamental democratic values that
respect the importance of human life, liberty and the rule of law. The Supreme Court of
Canada upheld the constitutionality of this provision and clarified certain procedural
aspects so as to guide future hearings.
65.
The Supreme Court of Canada reiterated what it had expressed in previous cases (Suresh
v. Canada (Minister of Citizenship and Immigration) and United States v. Burns)
concerning the seriousness with which it views deportation or extradition to countries
where torture and/or death are distinct possibilities and reaffirmed that evidence collected
at an investigative hearing is to be subject to an order preventing its subsequent direct or
derivative use in extradition or deportation proceedings where the potential for such use
by the state exists.10
66.
The Anti-Terrorism Act contains rigorous safeguards to uphold the rights and freedoms of
those affected by it. These safeguards include, with respect to preventive arrest and
investigative hearings: the prior consent of the Attorney General where the proceedings
take place; a judicial authorization; and that the Attorney General and Solicitor General
of Canada, provincial Attorneys General and Ministers responsible for policing report
annually to Parliament on the use of the preventive arrest and investigative hearing
provisions in the new Act. In addition, Parliament has directed that a comprehensive
review of the legislation be commenced within 3 years of its being assented to (December
18, 2001). Provisions authorizing the conduct of investigative hearings and the
imposition of recognizances with conditions (including the authority to arrest without a
warrant in exigent circumstances) will cease to apply after 5 years unless Parliament
passes a special resolution to extend their operation.
67.
Nothing in any of the new offences, investigative powers or other provisions affects any
of the safeguards already in place against torture and related activities. Criminal Code
subsection 269.1(4) which bars the use of any statement obtained by torture for any
purpose except as evidence that it was in fact obtained by torture, applies in full to all of
the new procedures.
68.
In addition, the Royal Canadian Mounted Police (RCMP) has developed internal policies
which add additional safeguards with respect to the use of these provisions. Among other
requirements, the policy requires that the RCMP Deputy Commissioner of Operations
10
Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42 Suresh v. Canada (Minister of Citizenship
and Immigration), [2002] 1 S.C.R. 3; United States v. Burns, [2001] 1 S.C.R. 283.
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personally approve all requests from RCMP officers to make use of these provisions,
before a request is made for the consent of the Attorney General.
Purpose and Principles of Sentencing
69.
The Criminal Code sets out principles to guide the sentencing courts and encourage
flexibility in the exercise of judicial discretion. The fundamental principle of sentencing
is that a sentence must be proportionate to the gravity of the offence and the degree of
responsibility of the offender. Parliament has placed a major emphasis on a “least
restrictive measures” approach, and has provided a direction to use incarceration only
where community sentencing alternatives are not considered feasible. This is consistent
with Parliament’s concern to address the overuse of incarceration as a means of
addressing crime in Canada.
Conditional Sentences
70.
The Government of Canada encourages the use of measures that reduce reliance on
incarceration by expanding the use of alternative measures and promoting community
justice alternatives including the use of Restorative Justice approaches for youth and
adults. The conditional sentence (sections 742 to 742.7 of the Criminal Code) contained
in the sentence reforms in force July 1, 1999 is a major tool which permits the courts to
use community-based sentences in cases which would otherwise result in a sentence of
imprisonment. While the use of conditional sentences has gradually increased over the
five years since coming into effect in 1996, they are still used in a small proportion of
cases, accounting for between 4-6% of all sentences.
Review of Pre-trial Detention
71.
In response to concern about remand facility overcrowding, and consistent with the goal
of achieving greater efficiencies and fairness in the criminal justice system, federal and
provincial/territorial government officials agreed in April, 2004 to conduct a
comprehensive review of bail in both the pre-trial and appeal context. A report of the
recommendations resulting from the review is expected to be delivered in 2005.
72.
In R. v. Hall,11 the Supreme Court of Canada considered the constitutionality of the
provision of the Criminal Code which provides that pre-trial detention is justified for
“any other just cause being shown” (pre-trial detention is also authorized to ensure
attendance in court and where necessary for the protection or safety of the public) and
where the detention is necessary in order to maintain confidence in the administration of
justice. The court found the words “any other just cause” to be inoperative as detention
on this basis would violate the Canadian Charter of Rights and Freedoms right to life,
liberty and security of the person and right not to be denied reasonable bail without just
cause. It upheld the remainder of the provision, holding that, in considering whether
detention is necessary to maintain confidence in the administration of justice, the inquiry
must focus on the reasonable community perception of the necessity of denying bail to
11
R. v. Hall, [2002] 3 S.C.R. 309.
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maintain confidence in the administration of justice, judicially determined through an
objective lens having regard to all the circumstances including the strength of the case,
the gravity of the nature of the offence, the circumstances surrounding the offence and
the potential for a lengthy term of imprisonment.
Canadian Charter of Rights and Freedoms
73.
In R. v. Mann,12 the Supreme Court of Canada stated that although there is no general
power of detention for investigative purposes, police officers may detain an individual if
there are reasonable grounds to suspect in all the circumstances that the individual is
connected to a particular crime and that the detention is reasonably necessary on an
objective view of the circumstances. These circumstances include the extent to which the
interference with individual liberty is necessary to the performance of the officer's duty,
the liberty interfered with, and the nature and extent of the interference. At a minimum,
individuals who are detained for investigative purposes must be advised, in clear and
simple language, of the reasons for the detention. Investigative detentions carried out in
accordance with the common law power recognized in this case will not infringe the
detainee's rights under the Charter. They should be brief in duration. Investigative
detentions do not impose an obligation on the detained individual to answer questions
posed by the police. Where a police officer has reasonable grounds to believe that his
safety or the safety of others is at risk, the officer may engage in a protective pat-down
search of the detained individual. The investigative detention and protective search power
must be distinguished from an arrest and the incidental power to search on arrest.
Article 10: Treatment of persons deprived of liberty
74.
12
In a report released on January 29, 2004, entitled “Protecting Their Rights”, the Canadian
Human Rights Commission (CHRC) found that women prisoners continue to face
systemic human rights problems in the federal correctional system. The report focuses on
the discriminatory impact of some policies and programs, particularly on Aboriginal
women, racialized women and women with disabilities. The report’s main finding is that
the correctional system should take a more gender-based approach to custody,
programming and reintegration for women offenders. In the report, CHRC recommends
various measures to address the disproportionate number of federally sentenced
Aboriginal women. These measures include: reassessing the classification of all
Aboriginal women currently classified as maximum security using a gender-responsive
reclassification tool and balanced individual assessments; independent adjudication for
decisions related to involuntary segregation, given that aboriginal women and other
racialized women are more often singled out for segregation than other inmates; that the
needs and low risk of minimum and medium security women inmates be considered in
the construction of additional facilities for women, such as Aboriginal Healing Lodge;
that the unique needs of Aboriginal offenders should be reflected in the structure and
content of programming strategies meeting the rehabilitation needs of federally sentenced
R. v. Mann, [2004] SCC 52.
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aboriginal women. The Correctional Service of Canada will study the recommendations
and prepare a comprehensive response to the report.
75.
The Youth Criminal Justice Act creates a comprehensive regime to deal with all aspects
of the youth justice system. The new legislation (entered into force in April 2003)
respects the rights of young persons, and aims to increase community responses to youth
offending, reduce overreliance on incarceration, and increase rehabilitation and
reintegration of young people. It sets out measures to deal with early intervention outside
the formal court process; the youth court process following a charge; special rules for
sentencing of young persons found guilty of an offence; the treatment of young persons
sentenced to custody along with measures respecting their reintegration and
rehabilitation; the safeguarding and use of information about young persons. More
information can be found in the responses given to the Committee on the Rights of the
Child to the list of issues in September 2003 (http://www.pch.gc.ca/progs/pdphrp/docs/crc-2003/UNCRC_1BE.pdf).
76.
In Québec (Ministre de la justice) v. Canada (Ministre de la justice13), the Quebec Court
of Appeal found that the principles on which the Youth Criminal Justice Act is based, as
well as the provisions on sentencing, and the custody and supervision of young persons
(sections 3, 38, 39 and 83) do not violate the International Covenant on Civil and
Political Rights or the Convention on the Rights of the Child. The Court also found that
the provisions of the Act dealing with the exception to the confidentiality of information,
and the imposition of adult sentences on young persons for certain offences (sections 61,
64, 79, 72, 75 and 110(2)(b)) are not incompatible with those instruments. Furthermore,
the Court found that the provisions that provide for the possible imprisonment of young
persons with adults do not violate the Covenant because the basic rule established by the
Act is that a young person must be held separately from adults. With respect to the
compatibility of the same provisions with the Canadian Charter, the Quebec Court of
Appeal upheld the validity of all the provisions challenged, except those creating a
presumption in favour of an adult sentence and exceptions to the confidentiality rule that
would create a presumption that would allow publication of information relating to a
youth sentence for a serious violent offence. The Court found that those provisions were
contrary to s. 7 of the Canadian Charter for placing too onerous a burden on the youth in
a manner that is inconsistent with the principles of fundamental justice, and that these
violations were not justified in a free and democratic society (section 1 of the Canadian
Charter). The Court held that a less infringing and equally effective alternative to the
presumptions would be the former provisions which require the Crown to bear the burden
of proof in these instances rather than the young person. The Court of Appeal’s judgment
was based in part on its acceptance of the following four principles as principles of
fundamental justice protected by s. 7 of the Canadian Charter: the justice system must
treat young persons differently than adults; the goal of rehabilitation must guide their
treatment; the youth justice system must limit the disclosure of young persons’ identity to
prevent their stigmatization; and the best interests of the child must be the guiding factor
in decisions affecting youth.
13
Québec (Ministre de la Justice) v. Canada (Ministre de la Justice) 5000-09-011369-014.
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Canadian Charter of Rights and Freedoms
77.
In R. v. Demers,14 the Supreme Court of Canada examined the Criminal Code provisions
pursuant to which the absolute discharge is not available to the accused found unfit to
stand trial. Permanently unfit accused are subject to indefinite conditions on their liberty,
of varying degrees of restrictiveness, resulting from the disposition orders of the Review
Board or the court. The impugned provisions deal unfairly with the permanently unfit
accused who are not a significant threat to public safety and infringe the liberty of those
accused. This infringement cannot be justified in a free and democratic society.
78.
In Penetanguishene Mental Health Centre v. Ontario (Attorney General),15 the Supreme
Court of Canada stated that the principles of fundamental justice (s. 7 of the Charter)
require that the liberty interest of an accused who has been found not criminally
responsible ("NCR") by reason of mental disorder be taken into account at all stages of a
Review Board's consideration. In this process, public safety is paramount. Within the
outer boundaries defined by public safety, however, the liberty interest of an NCR
accused should be a major preoccupation of the Review Board when it makes its
disposition order. Even where a risk to the public safety is established, the conditions of
the disposition order are to be "the least onerous and least restrictive to the accused"
consistent with the level of risk posed considering the mental condition of the NCR
accused, his or her other needs, and the objective of eventual reintegration into the
community.
Article 14: Fair trial rights
Independence of courts
79.
In 1998, the Parliament of Canada amended the Judges Act to establish a “Quadrennial”
Judicial Compensation and Benefits Commission. These amendments were intended to
establish an “independent, effective and objective” process for determining judicial
compensation, as required by the Supreme Court of Canada in the Reference re
Remuneration of Judges of the Provincial Court of Prince Edward Island,16 which
requires the provinces to set an independent body with the specific task of issuing a
report on the salaries and benefits of judges to the executive and the legislature. The
Court also ruled that any changes to or freezes in judicial remuneration made without
prior recourse to the body are unconstitutional.
80.
In Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick,17 the
Supreme Court of Canada ruled that the New-Brunswick legislation abolishing the
position of supernumerary judge, contravenes constitutional guarantees of judicial
independence. By not seeking approval from an independent commission, the legislature
14
R. v. Demers, 2004 SCC 46.
Penetanguishene Mental Health Centre v. Ontario (Attorney General), [2004] 1 S.C.R 498
16
Also referred to as Reference re Independence and Impartiality of Judges of the Provincial Court of Prince
Edward Island, [1997] 3 S.C.R. 3.
17
Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick, [2002] 1 S.C.R. 405.
15
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violated the institutional dimension of financial security of judges as set out in the
Reference re Independence and Impartiality of Judges of the Provincial Court of PrinceEdward-Island.
81.
In Ell v Alberta,18 the Supreme Court of Canada ruled that guarantees of independence are
required for justices of the peace because they exercise functions (like issuing warrants)
that are directly related to the enforcement of law and that have a major impact on
citizens’ right and freedoms.
82.
The National Judicial Institute (NJI), the principal national body dedicated to continuing
education for approximately 1000 federally appointed judges, and for provincially
appointed judges throughout Canada, has developed, in recent years, important and
innovative programs for our judiciary. For example, a key element of the NJI’s
curriculum has been the Social Context Education Project. There are also a number of
programs provided on international law issues, and on international human rights
specifically.
83.
The Canadian Judicial Council, made up of chief justices and associate chief justices and
created to improve the quality of judicial services in superior courts and handle the
complaints process against federally appointed judges, published a statement of judicial
ethics in 1998, Ethical Principles for Judges. This Statement, advisory in nature, provides
guidance to judges on matters of judicial independence, integrity, diligence, equality and
impartiality, and informs the public on ethical and professional questions facing the
judiciary.
National Defence
84.
In order to ensure that those accused through the military justice system with a service
offence are afforded guarantees provided to other members of Canadian society,
amendments were brought to the National Defence Act. Consequently, the prosecutorial
and defence services of the Canadian Forces have undergone extensive changes.
Separate offices have been established under the Director of Military Prosecutions and
the Director of Defence Counsel Services. The Director of Military Prosecutions is
responsible for all court martial prosecutions and decides which type of court martial
should be held and whether there should be one. The Director of Defence Counsel
Services is responsible for the provision of legal services to accused persons subject to
the Code of Service Discipline. The Director of Defence Counsel Services is appointed
by the Minister for National Defence for renewable terms of up to four years and so
would enjoy a certain autonomy from the Judge Advocate General as well as from
prosecuting counsel.
85.
An independent commission has also been established to make recommendations
concerning the remuneration of military judges, in order to ensure the financial
independence aspect of judicial independence.
18
Ell v Alberta, [2003] 1 S.C.R. 857.
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Access to courts
86.
In Bouzari v. Iran,19 the Ontario Court of Appeal concluded that there is no obligation
under the International Covenant on Civil and Political Rights that requires access to the
courts for actions alleging torture by foreign states committed outside Canadian
jurisdiction. Article 14 of the Covenant has not been interpreted to date to require a state
to provide access to its courts for sovereign acts committed outside its jurisdiction.
87.
In British Columbia (Minister of Forests) v Okanagan Indian Band,20 the Supreme Court
of Canada stated that Courts of Superior jurisdiction have the discretionary power to
award costs to a litigant prior to the final disposition of a case and in any event of the
cause (interim costs). Several conditions must be present for an interim costs order to be
granted. The party seeking the order must be impecunious to the extent that, without such
an order, that party would be deprived of the opportunity to proceed with the case; the
claimant must establish a prima facie case of sufficient merit to warrant pursuit; and there
must be special circumstances sufficient to satisfy the court that the case is within the
narrow class of cases where this extraordinary exercise of its powers is appropriate.
Concerns about access to justice and the desirability of mitigating severe inequality
between litigants are a prominent feature in the rare cases where such awards are made.
88.
In Canada, Aboriginal people enjoy access to the judicial system, as individual and
collective plaintiffs. Accordingly, many individuals, communities and leaders are
increasingly knowledgeable about the ability to seek judicial clarification of their treaty
and aboriginal rights, which enjoy constitutional protection under Section 35 of the
Constitution Act, 1982. In direct support of this process, the Test Case Funding program
has been put in place. Over the past 20 years, it has funded 160 cases (including 47 cases
at the Supreme Court of Canada) at a cost of approximately $20.5 million.
89.
The Office for Disability issues funded Kindale Development Association in 2001 and
2002 to develop Legalpix: A pictorial explanation of Canada’s Civil Justice System and
funded Law Courts Education Society of British Columbia in 2003 and 2004 to develop
and implement a justice system training to assist people with developmental disabilities.
Proceedings in public and openness of the proceedings
90.
On June 23, 2004, the Supreme Court of Canada, in the context of a constitutional
challenge to the investigative hearing provisions of the Anti-terrorism Act21 (see above
under article 9), found that Parliament chose to have investigative hearings of a judicial
nature, the open court principle is a fundamental characteristic of judicial proceedings
that should not be presumptively displaced in favour of an in camera process and that
judicial officers should therefore reject the notion of presumptively secret hearings. The
presumption of openness should only be displaced upon proper consideration of the
competing interests at every stage of the process. The existence of the hearing and as
19
Bouzari v. Iran [2002] O.J. No. 1624 (confirmed by the Ontario Court of Appeal [2004] O.J. No. 2800).
British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 S.C.J. 76.
21
Vancouver Sun (Re), 2004 SCC 43.
20
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much of its subject-matter as possible should be made public unless, under a balancing
exercise of minimal impairment / proportionality, secrecy becomes necessary. Applying
the test in a contextual manner, judges would be entitled to proceed on the basis of
evidence that satisfies him or her that publicity would unduly impair the proper
administration of justice.
91.
The Anti-terrorism Act amended the Canada Evidence Act (CEA) by setting out pre-trial,
trial and appellate procedures to apply where there is a possibility that information
injurious to international relations, national defence or national security could be
disclosed. Once notice has been given to the Attorney General for Canada by any
participant to a proceeding who expects to cause the disclosure of sensitive information,
disclosure is prohibited unless authorized by the Attorney General of Canada or the
Federal Court. The Federal Court must balance the public interest in disclosure against
that in non-disclosure and, in order to serve as far as possible both of these public
interests, may provide for the use in proceedings of summaries and agreed statements of
fact. To ensure that these procedures are consistent with fair trial rights, the CEA
provides that the person presiding at a criminal proceeding may make any order they
consider appropriate, other than calling for disclosure of the information. Orders can
include staying proceedings (if the judge takes the view that the accused would not
otherwise get a fair trial), dismissing specified counts of the indictment or information or
proceeding only in respect of a lesser or included offence.
Right to trial within reasonable time
92.
Amendments (entered into force in 2002) to the Criminal Code contain measures to
render the administration of justice more efficient and effective by simplifying trial
procedure, modernizing the criminal justice system and enhancing its efficiency through
the increased use of technology. Elements include modifying some of the procedural
aspects of preliminary inquiries (creating a pre-preliminary hearing to determine scope,
allowing admission of credible or trustworthy evidence), creating a limited reciprocal
disclosure obligation with regard to expert reports, establishing rules of court in relation
to case management and preliminary inquiries, facilitating the use of electronic
documents, expanding the potential for remote appearances, providing for jury alternates
and for jury selection by a judge other than the trial judge.
Legal Aid
93.
In November 2002, the different levels of governments agreed to work together on a
renewal strategy (Legal Aid Renewal Strategy) that will ensure the legal aid needs of
economically disadvantaged Canadians are met in a fair and equitable manner. The
renewal strategy would address fair and equitable allocation of criminal legal aid
resources as well as addressing innovative ways to deliver legal aid services.
Negotiations were undertaken ending with an agreement in principle in June 2003.
Thereafter agreements were drafted which increased contributions to adult criminal,
youth and immigration and refugee legal aid.
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94.
Canada provided an overview of its support of legal aid up to early 2003 in its report to
CEDAW.
95.
In New Brunswick (Minister of Health and Community Services) v G. (J.).22 the Supreme
Court of Canada determined that the Canadian Charter (right to life, liberty and security)
applies outside of the criminal law context. In that case, the New Brunswick Minister of
Health and Community Services was granted custody of the appellant's three children for
a six-month period. He later sought an extension of the custody order for a further period
of up to six months. The Court found that where government action triggers a hearing in
which either the physical or psychological integrity of the individual are at risk then the
government is under an obligation to do whatever is require to ensure that the hearing be
fair. In some circumstances, depending on the seriousness of the interests at stake, the
complexity of the proceedings, and the capacities of the party, the government may be
required to provide an indigent party with state-funded counsel.
96.
In Winters v Legal Services Society,23 the Supreme Court of Canada held that the
possibility of solitary confinement following a disciplinary hearing for a prisoner who
was incarcerated and serving a life sentence entitled the applicant to mandatory legal aid
services. The level of service, which a reasonable person of modest means would expect
to receive, however might not include legal representation at the hearing and was up to
the legal aid delivery entity to determine.
97.
In R v Howell,24 the Supreme Court of Canada stated that the “accused is not entitled to
publicly funded counsel of his choice but, at the highest, competent publicly funded
counsel.”
Review of conviction, sentence
98.
Previously, the Criminal Code allowed people who believed they were wrongly
convicted of an indictable offence, or sentenced to preventive detention under the
dangerous and long-term offender part of the Code, to apply for a review of their
conviction by the Minister of Justice. The Criminal Code contains new sections (696.1696.6) that clearly state when a person is eligible for a review; specify the criteria under
which a remedy may be granted; provide a power to make regulations to explain the
review process and how one applies; expand the Minister's powers to include the review
of summary convictions; and provide those investigating cases on behalf of the Minister
with powers to compel witnesses to provide information and documents.
99.
To make the conviction review process more open and accountable, the Minister of
Justice will also provide an annual report to Parliament and a web site will be created to
give applicants information on the process. A senior person from outside of the
Department of Justice will be appointed to advise the Minister directly and oversee the
22
New Brunswick (Minister of Health and Community Services) v G. (J.) [1999] 3 S.C.R. 46.
Winters v Legal Services Society, [1999] 3 S.C.R. 160.
24
R v Howell, [1996] 3 S.C.R. 604.
23
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review of applications. This will improve timeliness and openness of the review process,
and provide greater independence from the Department.
Sentencing considerations for Aboriginal Offenders
100.
As part of the statement of purpose and principles of sentencing (included in the 1999
sentencing reforms), judges must consider all alternatives to incarceration that are
reasonable in the circumstances, with particular attention to the circumstances of
Aboriginal offenders.
101.
In the case of R. v. Gladue,25 the Supreme Court of Canada concluded that this does not
give preferential treatment to aboriginal offenders, but seeks to treat them fairly by
recognizing that their circumstances are different. It requires judges to consider the
extent to which background and systemic factors unique to aboriginals have played a part
in bringing them before the Court, and to consider restorative approaches that take into
account their aboriginal heritage or connection.
Right to compensation for wrongful conviction
102.
In the fall of 2002, in response to a number of wrongful convictions across the country
and the various reports of inquiries they generated, a Working Group on the Prevention
of Miscarriages of Justice has been established. The group’s mandate is two-fold: to
develop a list of best practices to assist prosecutors and police in better understanding the
causes of wrongful convictions, and to recommend proactive policies, protocols and
educational processes to guard against future miscarriages of justice. The report is
nearing completion.
Article 17: Right to privacy
103.
In 2002, the Supreme Court of Canada recognized the quasi-constitutional status of the
Privacy Act in Lavigne v. Canada (Office of the Commissioner of Official Languages)26.
This demonstrates the fundamental importance that Canadian society accords to respect
for privacy.
104.
Canadians are protected not only by the Privacy Act, but also by the Personal
Information Protection and Electronic Documents Act, which governs the collection, use
and disclosure of personal information in the course of commercial activities. This act has
applied since January 2001 to the personal information of customers and employees of
the private sector under federal jurisdiction, since January 2002 to personal health
information, and since January 2004 to personal information collected, used or disclosed
in the course of commercial activities by any organization, whether or not under federal
jurisdiction.
25
26
R. v. Gladue, [1999] 1 S.C.R. 688.
Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773.
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105.
In 1998, the enactment of the DNA Identification Act authorized the establishment of a
National DNA Data Bank to hold the DNA profiles of offenders convicted of
“designated” offences as well as DNA profiles from biological substances found at the
scene of an unsolved crime. The Act also amended the Criminal Code to introduce
provisions to allow judges to order the taking of DNA samples from an offender
convicted of a designated offence for the purposes of the National DNA Data Bank. The
Government undertook to subject the Act to a 5-year parliamentary review; that an
independent advisory committee (including a representative from the Office of the
Privacy Commissioner) will be created to oversee implementation of the Act and
administration of the data bank and that the RCMP Commissioner will include a report
on operation of the DNA data bank in his annual report to be tabled in Parliament. In the
case of R. v. S.A.B.,27 the Supreme Court stated that, generally, the DNA provisions
appropriately balance the public interest in law enforcement and the rights of individuals
to dignity, physical integrity, and to control the release of personal information about
themselves.
106.
In 2001, the Anti-terrorism Act amended the Criminal Code to ensure that DNA
technology was available in the investigation of terrorist offences and for the data
banking of the DNA profiles of persons convicted of terrorism offences. Many of these
offences were already covered in the existing law.
107.
The Public Safety Act, 2002 (entered into force in May 2004) amends several federal
statutes (including the Aeronautics Act and Immigration and Refugee Protection Act) to
facilitate the collection and use of information about particular high-risk individuals or
airline passengers. The uses for the information are limited to the purposes outlined in
each Act, for example, transportation security, national security, defence of Canada, etc.
The safeguards in the Aeronautics Act include limiting the disclosure to designated
officials, destroying the information after seven days unless required for transportation
security or threats to the security of Canada, keeping written records of retention and
disclosure, and annual reviews of any retained information. The amendments to the
Immigration and Refugee Protection Act allow for regulation of the type of data collected
and its disclosure, retention and destruction. The Public Safety Act also allows the
Minister of National Defence to authorize the interception of private communications,
where necessary to identify or prevent damage or interference with military computer
systems or their data and provided that measures are in place to protect Canadians'
privacy in the use and retention of such information.
108.
Guidelines related to the use, access and disclosure of customs information were
published in November 2003. The guidelines give direction on providing appropriate
protection to private information about individuals. The guidelines focus particular
attention on the need to carefully assess requests for access to private information that is
considered core biographical information, or information about an individual's lifestyle
and personal preferences.
27
R. v. S.A.B., [2003] 2 S.C.R. 678.
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109.
The federal Sex Offender Registry came into operation on April 1, 2004, with the coming
into force of the Sex Offender Information Registration Act. The legislation contains
strong measures to ensure full respect for the privacy and fundamental rights of offenders
who may be subject to a registry order. Offenders may apply to a judge for a refusal of a
registration order or to appeal one that has been made. An offender may also apply to a
judge to have his or her name permanently removed from the registry. Data collected
under the legislation may only be used by authorized police and only when they are
investigating a specific sexual crime. Any unauthorized access to or leaking of
information in the registry is an offence.
110.
In the period under review, the Supreme Court of Canada issued a number of decisions
on issue of privacy as indicated below.
Canadian Charter of Rights and Freedoms
111.
In R. v. Jarvis and R v. Ling,28 the Supreme Court of Canada examined the extent to
which Revenue Canada investigators could use their audit powers under the Income Tax
Act to pursue criminal investigations. The case involves the distinction between audit
and investigatory powers given under the Income Tax Act. The Court concluded that
where the predominant purpose of an inquiry is the determination of penal liability, all
Charter protections (right to liberty, right to privacy) relevant in the criminal context
must apply, including giving the taxpayer the appropriate warning and the need to obtain
search warrants to further the investigation.
112.
The Government has responded to the decision of the Court, by requiring search warrants
for the collection of information from third parties where the predominant purpose of the
investigation is the determination of penal liability.
113.
In R. v. Law,29 a locked safe belonging to the accused was reported stolen and then
recovered, open, in a field. In the course of conducting the investigation for the theft of
the safe, a police officer not involved in the investigation photocopied some financial
documents from the safe and forwarded them to Revenue Canada. The Crown instituted
proceedings against the owner of the safe for contraventions of reporting requirements
under the Excise Tax Act. The Court concluded the police’s seizure of the safe was
restricted to the purpose of the seizure, namely the investigation of the theft and not to the
investigation of totally unrelated hunches. The search was found to be unreasonable and
the evidence was excluded from the trial. The case is important as it considers
“informational privacy” in commercial documents.
114.
In R. v. Feeney, the Supreme Court of Canada recognized the higher privacy interests
attached to a dwelling house as opposed to other premises. The Criminal Code has been
amended to provide for so-called “Feeney warrants” to authorize the police to enter a
dwelling house to affect an arrest. They can be issued as part of an arrest warrant (when
the police know that the person will be found in a dwelling house when they apply for an
28
29
R. v. Jarvis, [2002] 3 S.C.R.73 and R v. Ling, [2002] 3 S.C.R 814.
R. v. Law, [2002] 1 S.C.R. 227.
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arrest warrant) or can be issued separately once the police have located the person and he
is in a dwelling house.
115.
In R. v. Mann (mentioned under article 9),30 the Supreme Court of Canada stated that
individuals may be briefly detained for investigative purposes. Where a police officer has
reasonable grounds to believe that his safety or the safety of others is at risk, the officer
may engage in a protective pat-down search of the detained individual. In this case, the
officers had reasonable grounds to detain M and to conduct a protective search, but no
reasonable basis for reaching into M's pocket. This more intrusive part of the search was
an unreasonable violation of M's reasonable expectation of privacy in respect of the
contents of his pockets.
116.
In R. v. Golden,31 the Supreme Court of Canada ruled that, in light of the serious
infringement of privacy and personal dignity that is an inevitable consequence of a strip
search, such searches are only constitutionally valid at common law where they are
conducted as an incident to a lawful arrest for the purpose of discovering weapons in the
detainee's possession, in order to ensure the safety of the police, the detainee and other
persons, or for the purpose of discovering evidence related to the reason for the arrest, in
order to preserve it and prevent its disposal by the detainee. In addition to reasonable and
probable grounds justifying the arrest, the police must establish reasonable and probable
grounds justifying the strip search. Where these preconditions to conducting a strip
search incident to arrest are met, it is also necessary that the strip search be conducted in
a manner that does not infringe the protection against unreasonable search or seizure (s. 8
of the Charter).
117.
In Aubry v. Éditions Vice-Versa inc.,32 the Supreme Court of Canada concluded that the
artistic expression of the photograph (of Mrs. Aubry, then aged 17, which was taken in a
public place, and published without her consent) cannot justify the infringement of the
right to privacy it entails. The right to one's image is an element of the right to privacy
under s. 5 of the Quebec Charter of Human Rights and Freedoms. If the purpose of the
right to privacy is to protect a sphere of individual autonomy, it must include the ability
to control the use made of one's image.
Article 18: Freedom of thought, conscience and religion
Canadian Charter of Rights and Freedoms
118.
In Syndicat Northcrest v. Amselem,33 the Supreme Court of Canada found that the
impugned provisions in the declaration of co-ownership prohibiting construction of a
"succah"s on the complainants’ balcony, all Orthodox Jews, infringe their freedom of
religion. An important feature of our constitutional democracy is respect for minorities,
which includes religious minorities. Both obligatory as well as voluntary expressions of
30
R. v. Mann, 2004 SCC 52.
R. v. Golden, [2001] 3 S.C.R. 679.
32
Aubry v. Éditions Vice-Versa inc., [1998] 1 S.C.R. 591.
33
Syndicat Northcrest v. Amselem, 2004 SCC 47.
31
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faith should be protected under the Quebec and the Canadian Charter of Rights and
Freedoms. It is the religious or spiritual essence of an action, not any mandatory or
perceived-as-mandatory nature of its observance that attracts protection. In order for a
triggered right of religious freedom to have been infringed, the interference with the right
needs to be more than trivial or insubstantial. The impairment of the complainants’
religious freedom resulting from the refusal of the Syndicat to allow the setting up of
succahs on balconies is serious. As a result, the enjoyment of their rights to religious
freedom have been significantly impaired. The Syndicat's offer of allowing the
complainants to set up a communal succah in the building’s gardens does not remedy nor
does it even address that impairment.
Article 19: Freedom of opinion and expression
119.
The Anti-terrorism Act’s definition of the core concept of ‘terrorist activity’ requires that
a number of intention and purpose elements be satisfied and the definition protects
democratic action by expressly excluding from its coverage ‘advocacy, protest, dissent or
stoppage of work’ (where these are not intended to result in serious forms of specified
harm).
Canadian Charter of Rights and Freedoms
120.
In Libman v. Quebec (Attorney General),34 the Supreme Court of Canada dealt with the
Referendum Act. This Act governs referendums in Quebec and provides that groups
wishing to participate in a referendum campaign for a given option can either directly
join the national committee supporting the same option or affiliate themselves with it. It
also provides for the financing of the national committees and limits their expenses and
those of the affiliated groups. Mr. Libman wished to express his opinions on the
referendum question and convey meaning independently of the national committees. The
Supreme Court concluded that the Act placed restrictions on such persons who, unlike the
national committees, cannot incur regulated expenses during the referendum period in
order to express their points of view. For similar reasons, the impugned provisions also
infringe freedom of association.
121.
In Harper v. Canada (A.G.),35 the Supreme Court of Canada dealt with the provisions of
the Canada Elections Act imposing limits on third-party spending on advertising in the
course of a federal election campaign. The Court concluded that these limits infringe the
right to freedom of political expression but are justified in a free and democratic society.
In promoting the equal dissemination of points of view by limiting the election
advertising of third parties who are influential participants in the electoral process, the
overarching objective of the spending limits is electoral fairness. This egalitarian model
of elections seeks to create a level playing field for those who wish to engage in the
electoral discourse, enabling voters to be better informed.
34
35
Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569.
Harper v. Canada (A.G.), 2004 SCC 33.
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122.
In Thomson Newspapers Co. v. Canada (Attorney General),36 the Supreme Court of
Canada concluded that the provision of the Canada Elections Act, which prohibits the
broadcasting, publication or dissemination of opinion survey results in the final three
days of a federal election campaign, violate freedom of expression and the right to vote as
guaranteed by the Canadian Charter of Rights and Freedoms. The Court concluded that
the limitation cannot be justified in a free and democratic society (s. 1 of the Canadian
Charter). The current Canada Elections Act provisions restricting transmission to the
public of new election survey results apply to polling day only.
123.
In R. v. Sharpe,37 the Supreme Court of Canada dealt with the issue of the appropriate
balance between prohibition of child pornography and the freedom of expression. The
Court concluded that the ban on child pornography was constitutional, except for two
peripheral applications relating to expressive material privately created and kept by the
accused, for which two exceptions can be read into the legislation. The exceptions will
not be available where a person harbours any intention other than mere private
possession.
124.
R. v. Guignard,38 the Supreme Court of Canada stated that consumers also have freedom
of expression, which sometimes takes the form of "counter-advertising" to criticize a
product or make negative comments about the services supplied. In this respect, simple
means of expression, such as posting signs, are the optimum means of communication for
these consumers. Given the tremendous importance of economic activity in our society, a
consumer's "counter-advertising" assists in circulating information and protecting the
interests of society just as much as does advertising or certain forms of political
expression. This type of communication may be of considerable social importance, even
beyond the purely commercial sphere.
125.
In R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd.,39 the union
engaged in a variety of protest and picketing activities during a lawful strike and lockout
at one of the Pepsi-Cola plants. These activities eventually spread to "secondary"
locations, where union members and supporters picketed retail outlets to prevent the
delivery of the appellant's products and dissuade the store staff from accepting delivery
and engaged in intimidating conduct outside the homes of appellant's management
personnel. The Court ruled that secondary picketing is generally lawful unless it involves
tortious or criminal conduct.
126.
In U.F.C.W., Local 1518, v. KMart Canada Ltd and in Allsco Building Products Ltd. v.
U.F.C.W., Local 1288P,40 the Supreme Court of Canada explained the fundamental
importance of freedom of expression in the labour relations context. Consumer leafleting
seeks to persuade members of the public to take a certain course of action through
36
Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877.
R. v. Sharpe, [2001] 1 S.C.R. 45.
38
R. v. Guignard, [2002] 1 S.C.R. 472.
39
R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., [2002] 1 S.C.R. 156.
40
U.F.C.W., Local 1518, v. KMart Canada Ltd., [1999] 2 S.C.R. 1083 and Allsco Building Products Ltd. v.
U.F.C.W., Local 1288P, [1999] 2 S.C.R. 1136
37
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informed and rational discourse, which is the very essence of freedom of expression.
Peaceful distribution of leaflets is acceptable if consumers are able to determine for
themselves what course of action to take without being unduly disrupted by the message
of the leaflets or the manner in which it was distributed.
127.
In Little Sisters Book and Art Emporium v. Canada (Minister of Justice),41 the Supreme
Court of Canada stated that, as conceded by the Crown, the Customs legislation infringes
the freedom of expression. However, with the exception of the reverse onus provision,
the legislation constitutes a reasonable limit in a free and democratic society (s. 1 of the
Canadian Charter). The Court emphasized that Customs officials have no authority to
deny entry to sexually explicit material unless it comes within the narrow category of
pornography that Parliament has validly criminalized as obscene. The appellants were
entitled to the equal benefit of a fair and open customs procedure, and because they
imported gay and lesbian erotica, which was and is perfectly lawful, they were adversely
affected in comparison to other individuals importing comparable publications of a
heterosexual nature. The burden of proving obscenity rests on the Crown. Guidelines
have been issued following this judgment: http://www.cbsa.gc.ca/E/pub/cm/d9-1-1/d9-11-e.html.
128.
In R. v. Lucas,42 the Supreme Court of Canada examined the defamatory libel provisions
in the Criminal Code. The Court found that the impugned provisions contravene the
guarantee of freedom of expression since the very purpose of these sections is to prohibit
a particular type of expression. However, subject to the severance of part of one
requirement of the offence, the Court upheld the provisions as a justifiable limit in a free
and democratic society (s. 1 of the Canadian Charter of Rights and Freedoms). The
Court referred to article 17 of the Covenant and the protection against attacks on
reputation. The Court indicated that defamatory libel is so far removed from the core
values of freedom of expression that it merits but scant protection.
Article 20: Ban on war propaganda and inciting hatred
129.
From 1997-2001, the Canadian Human Rights Tribunal had been looking into allegations
that material posted on the Internet by E. Z. could expose Jews to hatred or contempt on
the basis of their race, religion and ethnic origin (procedures were delayed by various
legal challenges by the respondent). In January 2002, the Human Rights Tribunal
concluded that hate has no place in Canada. In its decision, the Tribunal ordered that the
hate messages be removed from the site and concluded that the site created conditions
that allow hatred to flourish. In its view, the “tone and expression of these messages is so
malevolent in its depiction of Jews, that we find them to be hate messages within the
meaning of the Act.” (Citron v. Zündel, D.T. 1/02 2002/01/18).
130.
Amendments to the Canadian Human Rights Act came into force in December 2001,
clarifying the application of the Act to hate messages on the Internet. The hate
41
42
Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120.
R. v. Lucas, [1998] 1 S.C.R. 439.
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propaganda provisions of the Criminal Code were also amended in December 2001 to
allow for deletion of hate propaganda from the Internet (new section 320.1).
131.
Since 1970, the Criminal Code prohibits: (a) advocating or promoting genocide against
an “identifiable group”; (b) inciting hatred against an “identifiable group” by
communicating in a public place statements which are likely to lead to a breach of the
peace; and (c) communicating statements, other than in private conversation, to wilfully
promote hatred against an “identifiable group” (sections 318 and 319). On April 29,
2004, the definition of “identifiable group” which read “any section of the public
distinguished by colour, race, religion or ethnic origin” was amended to add “sexual
orientation” to the distinguishing factors.
132.
The Anti-terrorism Act also includes specific provisions intended to send a strong
message against acts of hatred and discrimination. The first is a Criminal Code
amendment authorizing a court within its jurisdiction to order the deletion of publicly
available on-line hate propaganda stored on a computer server. A second creates a
specific Criminal Code offence of public mischief in relation to places of religious
worship, or objects associated with religious worship, if the act of mischief is motivated
by hatred based on religion, race, colour, or national or ethnic origin.
Article 21: Right of peaceful assembly, and
Article 22: Freedom of association
133.
Canada’s report under the Convention against Torture (Articles 12 and 13 – Impartial
and immediate investigation and Allegations of torture or abuse by authorities) contains
relevant information with respect to the freedom of peaceful assembly.
134.
The Public Service Modernization Act (adopted in November 2003 and which will come
into force in stages) now provides that all employees represented by a union have the
right to vote during a strike vote. Previously it was provided that only union members
could exercise their right to vote during a strike vote. The restrictions imposed apply only
to federal public service employees filling senior management positions and certain nonrepresented employees.
Canadian Charter of Rights and Freedoms
135.
In R. v. Advance Cutting & Coring Ltd.,43 which deals with a union security regime, the
Supreme Court concluded that the freedom of association includes a right not to
associate.
136.
In Dunmore v. Ontario (Attorney General),44 the Supreme Court of Canada concluded
that the exclusion of agricultural workers from the application of the Ontario labour
relations regime violates the freedom of association. While there is no constitutional
43
44
R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209.
Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016.
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right per se to protective labour relations legislation, the exclusion of a group from such
legislation may substantially impact the exercise of freedom to associate. Given the
historical reality of agricultural labour relations, the effect of the exclusion is to render
agricultural workers substantially incapable of exercising their fundamental freedom to
organize. The total exclusion of agricultural workers in all sectors of the industry and
from all aspects of the statutory regime is not justifiable in a free and democratic society
(s.1 of the Canadian Charter).
137.
In Delisle v. Canada (Deputy Attorney General),45 the Supreme Court of Canada ruled
that the freedom of association does not include the right to establish a particular type of
association defined in a particular statute. Only the establishment of an independent
employee association and the exercise in association of the lawful rights of its members
are protected. Respect for freedom of association therefore does not require in this case
that the appellant (a member of the Royal Canadian Mounted Police) be included in
either the regime of the Public Service Staff Relations Act, or any other regime, since the
Charter protects Royal Canadian Mounted Police members against interference by
management intended to discourage the establishment of an employee association.
Article 23: Protection of the family, right to marriage and equality
between spouses
138.
The 2001 Census shows that marriage remains the predominant family structure in
Canada, nonetheless Canadian families of the 21st century continue to be more diverse in
how they arrange themselves and their members are more likely to undergo multiple
transitions. Family is now defined by Statistics Canada for census purposes as a married
or common-law opposite-sex or same-sex couple, with or without children of one or both
spouses or partners, or a lone parent – regardless of that parent’s marital status – having
at least one child living under the same roof.
Immigration and Refugee Protection Act
139.
In the Immigration and Refugee Protection Act (IRPA), which fortifies the expressed
immigration objective of seeing that families are reunited in Canada, the notion of who
constitutes a “family” for purposes of immigration to Canada has been modernized to
extend beyond spouses to include common-law and conjugal partners of the same or
opposite sex. Moreover, sponsored spouses and partners may in certain cases apply to
become permanent residents from within Canada, as opposed to overseas. Sponsored
spouses, partners and dependent children, and refugees, are exempted from the bar to
admission with regard to excessive demand on health or social services. Children may
now be sponsored for permanent residence, even if not pursuing studies, up to the age of
22 by their parents.
140.
Canada also has a measure to better promote family reunification in the context of IRPA
by allowing family members abroad to be processed for permanent residence to Canada
45
Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989.
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at the same time as protected persons who are in Canada. Family members may now also
apply, as part of the original application, for a one-year period following the granting of
permanent residence to the original family member. This concurrent processing is
intended to speed up family reunification of a person granted protected person status in
Canada with his or her dependants.
141.
The IRPA continues to allow the Minister of Citizenship and Immigration Canada to
grant permanent residence or exempt individuals from requirements of the Act on the
basis of humanitarian and compassionate grounds including the best interests of a child
directly affected by the decision. The impact of separation of family members is one
factor considered in a humanitarian and compassionate application.
Canadian Charter of Rights and Freedoms
142.
Three provinces (Ontario, Quebec and British Columbia) and one territory (Yukon) in
Canada now provide equal access to civil marriage for same-sex couples as a result of
court rulings based on the equality guarantees (s. 15 of the Canadian Charter). The
Government of Canada is fully committed to both fundamental rights identified by the
courts as involved here that are guaranteed by the Charter - equality and freedom of
religion. As a result, the government has referred four questions to the Supreme Court of
Canada asking whether draft legislation that would provide equal access to civil marriage
for same-sex couples across Canada is constitutional both from the perspective of the
equality guarantee and from the perspective of the freedom of religion guarantee, in that
it respects the religious beliefs of those called on to perform marriages under provincial
jurisdiction. The reference to the Supreme Court also asks whether the opposite sex
requirement for marriage is constitutional.
Specific concern of the Human Rights Committee
143.
With respect to the Committee’s Concluding observation (paragraph 15), Canada’s
priority for removals is criminals and security threats in particularly those who pose a
danger of the security or to the public in Canada. In writing a report for removal on a
permanent resident, the following non-exhaustive list of factors are taken into
consideration in both criminal and non - criminal cases. The age at the time of landing
(whether the permanent resident has been resident in Canada since childhood); the length
of residence in Canada after the date of the admission; the extent to which family
members in Canada are dependent on the permanent resident; any adverse conditions in
the permanent resident's home country that would make removal problematic; the degree
to which the permanent resident has firmly established himself / herself in Canada; any
prior criminal convictions; and his / her current attitude and the degree to which the
permanent resident cooperates with Canadian authorities.
144.
Permanent residents, once issued a removal order, have an administrative right of appeal
and access to the Federal Court, subject to certain exceptions.
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Article 24: Rights of the child
145.
Canada provides comprehensive information on its implementation of the rights of the
child in its Reports on the Convention of the Rights of the Child and in the Responses of
Canada to the List of Issues of the Committee on the Rights of the Child. These reports
are available at http://www.pch.gc.ca/progs/pdp-hrp/docs/crc_e.cfm.
Specific concern of the Human Rights Committee
146.
In its Concluding Observations (paragraph 18), the Human Rights Committee expressed
its concern with respect to differences in the way in which the National Child Benefit
Supplement for low-income families is implemented in some provinces.
147.
The federal/provincial/territorial National Child Benefit (NCB) is the Government of
Canada’s principal child poverty initiative. Under the NCB, the Government of Canada
provides income support with respect to children, whether parents are on social assistance
or working, through the National Child Benefit Supplement (NCBS) component of the
Canada Child Tax Benefit (CCTB). Since 1998, the Government of Canada has steadily
increased its investment in children and their families through the base benefit of the
CCTB and NCB Supplement. Further details are provided in the above-mentioned
reports.
148.
One of the strengths of the NCB is its flexibility to allow provinces and territories to meet
the needs of their population while fulfilling the objectives of the initiative. In fact, in
addition to services and in-kind benefits, many jurisdictions have chosen to provide
additional income support through earnings supplements while others have continued to
provide income support with respect to children of low-income families on social
assistance. Further, programs offered by the provinces and territories are designed so that
low-income families with children do not lose access to services such as assistance with
child-care, early childhood services and supplementary health benefits when their parents
accept a job.
149.
Enriched federal income support is enabling provinces and territories to redirect some of
their social assistance resources towards improving benefits and services for low-income
families with children. In addition, most jurisdictions are adding new funds, beyond their
social assistance savings, so that federal investments to the NCB Supplement are being
complemented by additional provincial/territorial investments. Overall, provinces and
territories are contributing $777 million per year in services and income support. Details
on federal spending in this area are included in the reports mentioned above.
150.
Federal, provincial and territorial governments are committed to accountability and
transparency. Under the NCB Governance and Accountability Framework, governments
have agreed to report annually to the public on the performance of the NCB initiative.
Thus far, four jointly prepared NCB progress reports have been released, with a fifth
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progress report scheduled for release later in 2004. A comprehensive evaluation of the
NCB has been conducted and future evaluation work is planned.46
151.
The NCB is making progress toward meeting all of its goals, while providing provinces
and territories and First Nations with the flexibility to meet their particular needs. For
example: in 2000, there was a 5.1 percent reduction in the number of low-income
families. These families with children saw their average disposable income increase by
7.5 percent. The NCB is making work financially more attractive than social assistance.
This improvement was associated with a reduced dependency on social assistance among
families with children.47 The flexibility of the NCB allowed many jurisdictions to
combine the NCB Supplement with provincial and territorial child benefits into a single
integrated payment.
152.
To inform Canadians on progress made, federal, provincial and territorial governments
work collaboratively to produce an annual report. The National Child Benefit Progress
Report: 2002 was released in July 2003. This Report demonstrates that for the fourth
consecutive year, the number of low-income families with children has continued its
downward trend (post-tax LICOs).
Aboriginal children
153.
The National Child Benefit for First Nations was implemented in July 1998 to address the
issue of Aboriginal child poverty in Canada. It enables First Nations to develop
innovative programs to tailor the National Child Benefit to their communities. A total of
$48.76 million has been allocated to this program.
154.
The National Child Benefit Reinvestment (NCBR) initiative allows First Nations to
address community social development priorities for low-income families with children.
Funding is provided in the areas of: child nutrition, child care, home-work transitions,
parenting skills and cultural enrichment with the goal of reducing the depth and incidence
of child poverty while promoting parental attachment to the labour force. NCBR funding
for 2002-3 was $51.8 million.
Other measures
155.
46
47
In April 2004, the Government of Canada submitted to the United Nations an action plan
for children entitled A Canada Fit for Children in follow-up to the United Nations
Special Session on Children. The National Plan of Action (NPA) is a multi-sectoral,
long-term, child-centred framework for children and young people that identifies goals,
strategies and actions for the coming decade. The NPA, guided by the Convention on the
Rights of the Child, reinforces Canada's ongoing commitment to children and their
families. A Canada Fit for Children is available at:
http://www11.sdc.gc.ca/en/cs/sp/socpol/publications/2002-002483/page00.shtml.
Visit the NCB’s Web site for information and to view its reports: http://www.nationalchildbenefit.ca
In 2001, 81 percent of single-parent families were led by women in Canada.
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156.
The Government of Canada has implemented a number of other legislative,
administrative and policy initiatives to improve the lives of children. In addition, the
Immigration and Refugee Protection Act incorporates references to the best interest of the
child throughout. Details on initiatives are included in Canada’s Responses to the List of
Issues of the Committee on the Rights of the Child (September 2003) and in Canada’s
Response to the United Nations Questionnaire for the Study on Violence Against
Children (September 2004).
Article 25: Civic responsibility and political participation
Article 25 (a) and (b) – right to take part in the conduct of public affairs and right
to vote
157.
In September 2000, a new Canada Elections Act replaced the previous one, retaining or
revising many existing provisions. The most significant provisions modified the regime
for control of third party election advertising, setting limits on such advertising expenses
of $150,000 nationwide and $3,000 in a given electoral district. The legislation also
established third party registration and reporting requirements.
158.
On January 1, 2004, amendments to the Canada Elections Act came into force. It extends
disclosure and registration requirements for political entities, introduces new limits on
political contributions, and imposes a ban on contributions from unions and corporations
to political parties and leadership contestants. The amending Act also provides for
payment of a quarterly allowance to registered political parties, based on the percentage
of votes obtained in the previous general election.
159.
The Public Service Modernization Act48 (PSMA), assented to on November 7, 2003, will,
when it comes into force, bring changes to the provisions dealing with the political
activities of public servants. Federal public servants, with the exception of deputy heads
of departments and agencies, may engage in any political activity so long as it does not
impair or is not perceived to impair the employee’s ability to perform his or her duties in
a politically impartial manner.49 A new scheme for approving the political activities of
federal public servants will be created.50 Federal public servants who wish to seek
nomination for candidacy in a provincial, territorial or federal election must first obtain
the permission of the Public Service Commission. For its determination, the Commission
may have regard to the nature of the election in question, the employee’s duties and the
48
S.C. 2003, c. 22. R.A. November 7, 2003. Part 3 of the Act pertains to the Public Service Commission and the
Public Service Employment Act, R.S.C. 1985, c. P-33, as am. (PSEA). Sections 14 and 19 of the PSMA were
proclaimed in force on November 20, 2003 (SI/2003-0178). The remainder of the PSMA is anticipated to be
brought into force in stages between now and mid-2005. Division 1 of Part 3 enacts a new Public Service
Employment Act. Division 2 of Part 3 amends the current Public Service Employment Act. It is anticipated that
Division 2 amendments will come into force prior to Division 1 provisions. The sections already proclaimed in
force (ss. 14 and 19) are found in Part 3, Division 2. When Division 1 provisions come into force, enacting a new
PSEA, they will supersede the current PSEA as amended by Division 2.
49
Section 32 of the current PSEA; s.113 of new PSEA, once in force.
50
Sections 32-34 of the current PSEA, until the new PSEA enacted by section 12 of the PSMA comes into force and
replaces the current PSEA. At that point the new provisions will be found in sections 112-122 of the new PSEA.
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level and visibility of his or her position.51 If a public servant is elected to federal,
provincial or territorial office, she or he ceases to be a public servant on the date she or he
is declared elected.52 There are similar, but less restrictive provisions for employees
wishing to participate in municipal elections (s. 115 of the new Public Service
Employment Act). These provisions are aimed to uphold the principle of political
impartiality in the public service.
Canadian Charter of Rights and Freedoms
160.
The Supreme Court of Canada held in Figueroa v. Canada (Attorney General) that the
requirement in the Canada Elections Act that a political party nominate candidates in at
least 50 electoral districts in order to obtain and retain registered party status and
specified statutory benefits was an infringement of section 3 of the Canadian Charter.
The infringement was not justified in a free and democratic society (s.1 of the Canadian
Charter). The Court found that the purpose of the section 3 rights to vote and to run for
office was effective representation, including the right to participate meaningfully in the
electoral process. For parties who failed to meet the 50-candidate threshold, the resulting
denial of the rights to issue tax receipts, to retain unspent candidate election funds and to
list party affiliation on ballots diminished the right of citizens to meaningful participation
in the electoral process. The challenge was in relation to the Act as it read prior to
amendments that took effect in 2000 and 2001.
161.
In Sauvé v. Canada (Attorney General),53 the Supreme Court of Canada court struck
down the disqualification in the Canada Elections Act of all prison inmates from voting.
The subsequent amendment to the Act to disqualify only inmates serving sentences of
two years or more was also challenged in Sauvé v. Canada (Chief Electoral Officer),54
and the Supreme Court of Canada held, in 2002, that this too was an unjustifiable
infringement of the right to vote guaranteed by s. 3 of the Charter. As a result of these
decisions, federally incarcerated offenders now have the right to vote in federal and
provincial elections.
162.
In Harper v. Canada (Attorney General),55 the Supreme Court of Canada examined a
number of provisions in the Canada Elections Act regulating the intervention of third
parties in the electoral process, as well as the prohibition on advertising on the day of the
election. The Court ruled that the limits on third party election advertising expenses set
out in the Act infringe the right to freedom of political expression but they do not infringe
the right to vote protected by s. 3 of the Charter. Under s. 3, the right of meaningful
participation in the electoral process is not limited to the selection of elected
representatives and includes a citizen's right to exercise his or her vote in an informed
manner. In the absence of spending limits, it is possible for the affluent or a number of
persons pooling their resources and acting in concert to dominate the political discourse,
51
Section 32 of the current PSEA; sub-sections 114(4), (5), (6) of the new PSEA, once in force.
Section 32 of current PSEA; sub-section 114 (4) of new PSEA, once in force.
53
Sauvé v. Canada (Attorney General), [1993] 2 S.C.R. 438.
54
Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519.
55
Harper v. Canada (Attorney General), 2004 SCC 33.
52
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depriving their opponents of a reasonable opportunity to speak and be heard, and
undermining the voter's ability to be adequately informed of all views. Equality in the
political discourse is thus necessary for meaningful participation in the electoral process
and ultimately enhances the right to vote. This right, therefore, does not guarantee
unimpeded and unlimited electoral debate or expression. Spending limits, however, must
be carefully tailored to ensure that candidates, political parties and third parties are able
to convey their information to the voter; if overly restrictive, they may undermine the
informational component of the right to vote. Here, the impugned provision does not
interfere with the right of each citizen to play a meaningful role in the electoral process.
See also Libman v. Quebec (Attorney General) and Thomson Newspapers Co. v. Canada
(Attorney General) under Article 19 of the Covenant.
Article 25 (c) – Access to public service without discrimination
163.
Employment in the public service continues to be merit-based and continues to guard
against political partisanship. The new Public Service Modernization Act aims to
enhance the ambit of employment equity initiatives in the federal public service by
expressly allowing employers to set membership in a designated employment equity
group56 as a criterion for being hired to a given position.57
Policies – Public Service
164.
The Government of Canada is committed to establishing a representative and inclusive
public service that is a workplace of choice for current and future generations of
Canadians. As an employer, the federal Public Service recognizes that it has a duty to
accommodate the needs of persons with disabilities in the workplace. The objective of the
Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public
Service (http://www.tbs-sct.gc.ca/pubs_pol/hrpubs/tb_852/ppaed_e.asp) is the
elimination of barriers that prevent the full participation of potential recruits and existing
employees within the Public Service of Canada. Examples include: physical barriers,
unnecessary job requirements and unequal access to training and development.
165.
The Government of Canada is also committed to making the Canadian public service a
representative workplace, reflecting the diversity of the Canadian population, by putting
in place programs such as “Embracing Change”, which encourages departments at
meeting the benchmarks for the hiring, training, and promotion of visible minorities.
56
“Designated groups” has the meaning given to it in section 3 of the Employment Equity Act, S.C. 1995, c.44 :
“women, aboriginal peoples, persons with disabilities and members of visible minorities.”
57
S. 34(1) of the new PSEA, once in force. This is already done in practice through the PSC’s authority to
implement employment equity programs in s. 5.1 of the PSEA–this new section (34(1)) simply makes explicit the
power to target designated groups in hiring.
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Canadian Charter of Rights and Freedoms
166.
In Lavoie v. Canada,58 the Supreme Court concluded that the preference for Canadian
citizens in open competitions for employment pursuant to the Public Service Employment
Act was contrary to the equality rights but was justified in a free and democratic society
(s. 1 of the Canadian Charter).
Article 26: Equality before the law
167.
In 2000, the Government of Canada enacted the Modernization of Benefits and
Obligations Act, extending 68 federal laws to common-law opposite-sex and same-sex
couples. As a result, the majority of the legal consequences of marriage in federal law
now also apply to all couples in committed common-law relationships of at least one
year. Federal benefits and obligations available to children of married couples were
similarly extended under this Act to children of common-law partners, both opposite-sex
and same-sex.
168.
Under the Immigration and Refugee Protection Act, both married couples and persons in
a common-law relationship (opposite-sex and same-sex) are eligible for benefits related
to immigration such as sponsoring a partner to immigrate to Canada. The Citizenship Act
was amended to add the definition of “common-law partner” and by extending to
common-law partners certain rights in relation to the residency requirement for Canadian
citizenship.
Canadian Charter of Rights and Freedoms
169.
In its landmark decision Law v. Canada (Minister of Employment and Immigration),59 the
Supreme Court of Canada stated the proper test for the equality rights (s. 15 of the
Canadian Charter). Section 15(1) requires three broad inquiries: First, whether there is
an inequality determined by whether the law draws a formal distinction between the
claimant and others based on one or more personal characteristics OR by failing to take
account of the claimant’s already disadvantaged position within Canadian society
resulting in substantively differential treatment between the claimant and others on the
basis of one or more personal characteristics. Secondly, whether the differential treatment
is based on one or more enumerated in s. 15 or on an analogous grounds. Thirdly,
whether the differential treatment discriminates in a substantive sense when measured
against the purposes of s. 15. Though the list of factors is not closed, the Court identified
some of the most important factors to be considered:
•
•
58
59
Pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the
individual or group at issue;
The correspondence, or lack of it, between the ground or grounds on which the claim
is based and the actual needs, merits, capacity, or circumstances of the claimant or
others;
Lavoie v. Canada, [2002] 1 S.C.R. 769.
Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497.
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•
•
The ameliorative purpose or effects of the impugned law on a more disadvantaged
person or group in society;
The nature and scope of the interest affected by the impugned law.
170.
The case of Canada (House of Commons) v. Vaid,60 dealt with whether the Canadian
Human Rights Act applies to employees of the House of Commons. The case involved a
racial discrimination complaint by one such employee against the then Speaker of the
House. The Federal Court of Appeal concluded that the parliamentary privilege claimed
in the present instance finds no application herein. The powers claimed in this case are
not necessary and, consequently, not within the scope of the privilege as delimited by the
doctrine of necessity. In addition, there is no clear intent of Parliament, either explicit or
implicit, to shield its managerial activities from the application of the Canadian Human
Rights Act. The Supreme Court of Canada will hear the case in fall 2004.
171.
The Supreme Court of Canada released two decisions in 1999 that broadened the scope of
the anti-discrimination protection provided to individuals by human rights legislation in
Canada. In British Columbia (Public Service Employee Relations Commission) v. British
Columbia Government and Service Employees' Association,61 the Court held that the
employer's defence to a claim of discrimination in employment, the bona fide
occupational requirement, required proof, not only of an important employer's interest,
but also that the employer had attempted to accommodate the employee to the point of
undue hardship. The Court said that employers had to build conceptions of equality into
workplace standards. The Court applied the same principles in another case involving the
provision of services covered by human rights legislation, more precisely in the case of
the denial of a driver's licence on the basis of his physical disability (British Columbia
(Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights).62
The Canadian Human Rights Act anticipated this development in amendments made a
year earlier.
172.
In Quebec (Commission des droits de la personne et des droits de la jeunesse) v.
Montréal (City); Quebec (Commission des droits de la personne et des droits de la
jeunesse) v. Boisbriand (City),63 the Supreme Court of Canada stated that a liberal and
purposive interpretation and a contextual approach support a broad definition of the word
"handicap", which does not necessitate the presence of functional limitations and which
recognizes the subjective component of any discrimination based on this ground. Courts
should adopt a multidimensional approach that considers the socio-political dimension of
"handicap". A handicap may be real or perceived, and a person may have no limitations
in everyday activities other than those created by prejudice and stereotypes.
60
Canada (House of Commons) v. Vaid, [2003] 1 F.C. 602.
British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3.
62
British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3
S.C.R. 868.
63
Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec
(Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [2000] 1 S.C.R. 665.
61
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Article 27: Religious, cultural and linguistic rights
173.
The Committee will find additional information in Canada’s periodic reports submitted
pursuant to the Convention on the Elimination of All Forms of Racial Discrimination and
the International Covenant on Economic, Social and Cultural Rights.
174.
In Reference re Secession of Quebec,64 the Supreme Court of Canada stated that the
protection of minorities is an underlying constitutional principle. The principle of
respecting and protecting minority rights continues to exercise influence in the operation
and interpretation of our Constitution. The Supreme Court of Canada more recently said
than an important feature of the Canadian constitutional democracy is respect for
minorities, which includes, of course, religious minorities. The Court stated that, indeed,
respect for and tolerance of the rights and practices of religious minorities is one of the
hallmarks of an enlightened democracy. The Court added that respect for minority rights
must also coexist alongside societal values that are central to the make-up and
functioning of a free and democratic society.65
Official languages (French and English)
175.
The Government of Canada, through pluriannual agreements entered into with all the
provinces and territories, funds part of the additional costs associated with English and
French minority language education and English and French training as second
languages. In addition, all the provinces and territories also have access to a cost-shared
incentive program aimed at improving government services provided to official language
minorities in their jurisdictions.
176.
In March 2003, the federal government announced the Action Plan for Official
Languages. This Action Plan, which includes an accountability and coordination
framework, provides over $750 million in investments over five years in three priority
areas: education, the development of communities and the public service.
177.
In R. v. Beaulac,66, the Supreme Court set out a new principle of interpretation of
language rights and indicated that they must be interpreted purposively, in a manner
consistent with the preservation and development of official language communities in
Canada. The Court noted the positive nature of language rights, establishing a link with
the notion favoured in the area of international law that the freedom to choose is
meaningless in the absence of a duty of the State to take positive steps to implement
language guarantees. In the same case, the Supreme Court of Canada ruled that the
language-of-trial provisions of the Criminal Code (the right of any accused to have a trial
before a judge, a jury and a prosecutor who speak the official language (English or
French) of the accused, the right of the accused to have a judgment written in his official
language, and the right of the accused, witnesses and the accused=s counsel to be assisted
64
Reference re Secession of Quebec, [1998] 2 S.C.R. 217.
Syndicat Northcrest v. Amselem, 2004 SCC 47. The Court referred to its earlier decision on that point in
Reference re Secession of Quebec, [1998] 2 S.C.R. 217.
66
R. v. Beaulac, [1999] 1 S.C.R. 768.
65
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by an interpreter) create an absolute right, provided a request is made within the time
allowed. The Court confirmed that such language rights are completely distinct from trial
fairness and, as such, are not contingent upon the ability of the person making the request
for interpretation services to understand the proceedings in the other official language.
However, several courts have found that the language provisions of the Criminal Code do
not create language requirements governing the disclosure of evidence, documentary
evidence and information.
178.
In Arsenault-Cameron v. Prince Edward Island,67 the Supreme Court of Canada set out
the scope of the powers of management of the official language minority and indicated
that right holders have the exclusive power to decide how they provide minority language
educational services. Furthermore, the Court added that both a textual and purposive
analysis of s. 23 of the Canadian Charter of Rights and Freedoms indicate that
instruction should take place in facilities located in the community where children reside.
Finally, the Court indicated that s. 23 of the Charter is premised on the fact that
substantive equality requires that official language minorities be treated differently, if
necessary, according to their particular circumstances and needs, in order to provide them
with a standard of education equivalent to that of the official language majority.
Aboriginal people
179.
In recent years, closing the gap in life chances between Aboriginal and non-aboriginal
Canadians has been a key feature of Speeches from the Throne and federal budgets. The
2003 Federal Budget provided more than $2 billion in additional funds for Aboriginal
programs and services in health, education, child-care, infrastructure, policing languages
and culture, business development and sustainable environment. Canada’s new Prime
Minister, upon taking power in December 2003, has placed renewed emphasis on
Aboriginal issues. To focus the government’s efforts, changes to the infrastructure of
government have been implemented, including a new Cabinet Committee on Aboriginal
Affairs chaired by the Prime Minister.
Specific Concerns of the Human Rights Committee
180.
In its Concluding Observations (paragraph 8), the Committee asked what has been done
to implement the recommendations of the Royal Commission on Aboriginal Peoples.
181.
Canada responded to the Royal Commission on Aboriginal People (RCAP) in 1998 with
Gathering Strength — Canada’s Aboriginal Action Plan. The vision articulated in
Gathering Strength is straightforward: a new partnership between Aboriginal people and
other Canadians that reflects our interdependence and enables us to work together to
build a better future; financially viable Aboriginal governments able to generate their
own revenues and able to operate with secure, predictable government transfers;
Aboriginal governments reflective of, and responsive to, their communities’ needs and
values; and, a quality of life for Aboriginal people comparable to that of other Canadians.
67
Arsenault-Cameron c. Île-du-Prince-Édouard, [2000] 1 R.C.S. 3.
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182.
As part of Gathering Strength, the Government offered a Statement of Reconciliation,
which acknowledged its role in the development and administration of the residential
school system. To the victims who suffered physical and sexual abuse at residential
schools, the Government said that it is deeply sorry. The Government also committed
$350 million in support of a community-based healing strategy to address the healing
needs of individuals, families and communities arising from the legacy of physical and
sexual abuse at residential schools.
183.
In the same Concluding observation (paragraph 8), the Committee raised the issue of “the
practice of extinguishing inherent aboriginal rights”.
184.
Certainty over ownership and use of lands and resources is one of the primary goals of
land claims negotiations. A clear definition of the respective rights and obligations of
Aboriginal groups and other citizens is needed in all aspects of the comprehensive land
claims process, including the provisions of the Final Agreement.
185.
In the past, the Government of Canada required Aboriginal groups to “cede, release and
surrender” their undefined aboriginal rights in exchange for a set of defined treaty rights.
This approach requires Aboriginal groups to give up all their Aboriginal rights, which
many groups consider to be unacceptable by today’s standards.
186.
In recent years, new approaches to achieving certainty have been developed as a result of
comprehensive land claims negotiations. These include the “modified rights model”
pioneered in the Nisga’a negotiations, and the “non-assertion model”. Under the
modified rights model, aboriginal rights are not released, but are modified into the rights
articulated and defined in the treaty. Under the non-assertion model, Aboriginal rights
are not released, and the Aboriginal group agrees to exercise only those rights articulated
and defined in the treaty and to assert no other Aboriginal rights.
Land claims
Comprehensive Claims
187.
Sixteen comprehensive claims have been settled in Canada since the announcement of the
Government of Canada’s claims policy in 1973, the most recent being those of the eight
Yukon First Nations, the Nisga’a Agreement, and the Tlicho Agreement.
188.
The primary purpose of comprehensive land claims settlements is to conclude agreements
with Aboriginal peoples that will resolve the legal ambiguities associated with the
common law concept of Aboriginal rights. The objective is to negotiate modern treaties
which provide certainty and clarity of rights to ownership and use of lands and resources
for all parties. The process is intended to result in agreement on the rights Aboriginal
peoples will have in the future with respect to lands and resources. Through the
negotiations, the Aboriginal party secures a clearly defined package of rights and benefits
codified in constitutionally protected settlement agreements.
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189.
Comprehensive land claim agreements define a wide range of rights, responsibilities and
benefits, including ownership of lands, fisheries and wildlife harvesting rights,
participation in land and resource management, financial compensation, resource revenue
sharing and economic development projects. Settlements are intended to ensure that the
interests of Aboriginal groups in resource management and environmental protection are
recognized, and that claimants share in the benefits of development.
British Columbia Treaty Commission Process
190.
According to the BC Treaty Commission’s 2004 Annual Report, there are now 55 First
Nations participating in the BC treaty process (www.bctreaty.net). Because some First
Nations negotiate at a common table, there are 44 sets of negotiations. There are 41 First
Nations in Stage 4 agreement-in-principle negotiations. Five First Nations are in Stage 5
negotiations to finalize a treaty: the Maa-nulth First Nations, Lheidli T’enneh Band,
Sechelt Indian Band, Sliammon Indian Band and Tsawwassen First Nation. The treaty
process is voluntary and open to all First Nations in British Columbia.
Specific Claims Resolution
191.
In November 2003, the Specific Claims Resolution Act received Royal Assent. This
important piece of legislation will lead to the establishment of a new independent claims
body, known as the Canadian Centre for the Independent Resolution of First Nations
Specific Claims (the Centre). The Centre will help First Nations and Canada reach
resolution on specific claims and bring greater transparency, efficiency and fairness to the
current process.
First Nations Land Management Act
192.
In 1996, the First Nations Land Management Act gave 14 participating First Nations the
option of operating under their own land codes instead of The Indians Act and reestablished power over land management. Canada has opened the Act to 30 First Nations
every two years. Over 50 First Nations have already passed Band Council resolutions
indicating they also want to work within this framework. The First Nations Land
Management Initiative allows participating First Nations the opportunity to develop their
own modern and/or traditional tools to manage and protect their reserve lands and
resources.
Treaty Commissions
193.
The federal government has recently reached agreement with First Nations for the
establishment of a Treaty Relations Commission Office in the Province of Manitoba.
Consistent with the existing Office of the Treaty Commissioner in Saskatchewan, the
Manitoba Commission will engage in public education activities and independent
research and facilitate discussions on historic treaty issues. Planning for an Alberta
Treaty Relations Commission Office is underway.
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194.
The Treaty Relations Commissions function as independent and impartial offices, with a
mandate to engage in public education activities to improve understanding of the treaty
relationship and treaty-related issues, provide facilitation services for discussing treaty
issues, and conduct independent research.
The Metis
195.
The R. v. Powley68 decision rendered in September 2003 was the first Supreme Court of
Canada judgement to address the question of whether Metis groups can possess
Aboriginal rights pursuant to section 35(1) of the Constitution Act, 1982. The Supreme
Court ruled that the Metis community of Sault Ste. Marie possesses a constitutionally
protected right to hunt for food. The Supreme Court articulated a test for Metis
Aboriginal rights, thereby allowing for the possibility that Metis rights might exist
elsewhere in Canada, while setting some parameters around who might exercise these
rights.
196.
In reacting to the Supreme Court decision, a key component of the federal response will
involve participating in multilateral discussions with provinces, territories and Métis
organizations. The focus of these multilateral discussions will be on harvesting and
related issues (e.g. cooperative management), in accordance with the Supreme Court
decision. Preparations for these discussions are well advanced. Improved relations with
both Métis organizations and the provinces are anticipated as a result of the multilateral
discussions and research, as any harvesting regime that is put in place through this
process will be achieved through partnership and cooperative efforts among all players.
The federal government is also engaged in legal and policy analysis to better understand
the decision and its implications. This work will be key to addressing current gaps in
knowledge with respect to Canada`s Metis population. For instance, it will inform the
government with respect to where Metis communities exist, which in turn will inform the
identification of Metis harvesters: a priority identified in the Supreme Court decision
which will be essential in establishing responsible and orderly harvesting.
Aboriginal Languages and Cultures
197.
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The Aboriginal Languages Initiative (ALI), which, since 1998, has supported
community-driven activities for the protection, renewal and growth of the Aboriginal
languages in Aboriginal communities and in Aboriginal homes terminates in March 2005
and will be succeedeed by the Aboriginal Languages and Cultures Centre (ALCC). A
Task Force of 10 Aboriginal people was established in December 2003 and is responsible
for making recommendations on a sustainable national strategy for the preservation,
revitalization and promotion of Aboriginal languages and cultures, a key component of
which is the creation of an ALCC. The recommendations, due by the end of 2004, will
be based on consultation findings, related research, and presentations made to them by
experts, various Aboriginal representative groups, interested individuals and
organizations, as well as on the Task Force's own collective knowledge, expertise, and
experience.
R. v. Powley, [2003] 2 S.C.R. 207.
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198.
Canada has established ongoing support for its Aboriginal Languages Accords with each
of the Governments of the Northwest Territories and Yukon. Under the respective
Accord, both governments agreed that the preservation, development and enhancement of
the Aboriginal languages indigenous to that territory was an important mutual goal. This
understanding was extended to the Government of Nunavut in 1999. Both Nunavut and
Yukon receive $1.1 million annually and the Northwest Territories $1.9 million annually
to support territorial activities agreed upon under the terms of the funding agreements
with each of the Territorial Governments. Through these agreements, the Territorial
Governments have been focussing on the support of Aboriginal community projects and
have been working closely with the Aboriginal language groups of their respective
territories.
199.
Additional information on other initiatives to address Aboriginal language and culture
related issues such as the Urban Multipurpose Aboriginal Youth Centres Initiative, the
Urban Aboriginal Strategy, the Northern Native Broadcast Program and the Aboriginal
Friendship Program, may be found in Canada’s reports under the ICESCR.
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Part II
Measures Adopted by the
Governments of the
Provinces
Canada’s Fifth Report on the United Nations’
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Newfoundland and Labrador
Article 2: Equal rights and effective remedies
200.
To ensure equal access to courts the Provincial Court has completed two strategic plans,
the first in 1997 and the second in 2000 - they are being implemented successfully. The
development of the plans was aided by input from 33 external stakeholders provincewide including aboriginal groups, John Howard Society and the Elizabeth Fry Society.
201.
The Provincial Court of Newfoundland and Labrador has an active caseflow management
committee working with all criminal justice stakeholders to examine court delay
reduction and improve case processing times.
202.
Newfoundland & Labrador Human Rights Commission has received a number of
complaints on rights protected directly or indirectly by the Covenant. Here is the number
of complaints received by the Commission for the fiscal year 2002 – 2003:
Ground
Sex / Gender
Marital Status
Physical Disability
Mental Disability
Age
Sexual Orientation
Sexual Solicitation
Pay Discrimination
Retaliation
Total Complaints
2002 – Complaints Filed
Number of Complaints
20
5
39
18
4
2
2
9
1
100
2003 – Complaints Filed
Ground
Number of Complaints
Sex / Gender
10
Marital Status
12
Physical Disability
48
Mental Disability
17
Age
3
Sexual Orientation
6
Sexual Harassment
6
Political Opinion
1
Sex / Pregnancy
3
Race
6
Total Complaints
112
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203.
The new Aboriginal Justice Program in Happy Valley-Goosebay will assist aboriginal
people who interact with the Criminal Justice system and will also provide a resource
training centre for lawyers representing aboriginal persons in criminal matters. This
initiative is supported by federal funding for Legal Aid projects.
Article 3: Equal rights of men and women
204.
Provincial parties have made a concerted effort to increase the number of women
candidates and those in Cabinet, which is currently 29%. Government also has an active
gender balance policy with respect to filling positions on agencies, boards and
commissions with the current level of 34% women.
205.
In 1998, Newfoundland and Labrador began funding of 7 women’s centres with an 8th
opened in 2003. In 2001/02 the funding commitment to these services was increased by
66%. The work of these centres is instrumental in ensuring women equal access to rights
either through advocacy and referral on an individual basis or by bringing forward
systemic or policy issues to the public and private sector, as well as to communities.
206.
The province increased funding to the Provincial Advisory Council on the Status of
Women in 2002/03. This organization provides a strong external voice for women, which
enhances public accountability of government in terms of rights for women.
207.
There has been a gender inclusive approach to the development of new legislation and
current legislation has been reviewed resulting in removal of language-based gender
discrimination.
Representation of Women in Newfoundland & Labrador Public Service for the Years
2002-2003 (not including the health or education sector)
Employee Category
% Female
Clerical/Administrative
87.4
86.9
Director
22.3
23.8
Executive
30.0
28.6
Law Enforcement
12.9
12.6
Manager
28.9
27.9
Operations
5.2
5.0
Other
48.6
48.6
Professional
43.5
43.3
Technical
38.2
36.2
Total
40.0
39.6
Newfoundland and Labrador
2003
% Female 2002
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Representation of Women in Education Sector for the Year 2003
Employee Category
% Female 2003
Executive
23.0
Administrative
36.0
Professional
54.0
Teachers
69.0
Student Assistants
94.0
Representation of Women in Health Sector
Employee Category
% Female 2003
Allied
( Social Work, Speech Pathology)
76.0
Clinical Ancillary
( Technicians, Lab Assistants
79.0
System Ancillary
72.0
( housekeeping, laundry and information systems)
Diagnostic
(Lab, X-ray)
73.0
Management
71.0
Nursing (LRN & RN)
93.0
Article 6: Right to life
208.
The issue of Fetal Alcohol Syndrome/Fetal Alcohol Effects (FAS/FAE) has been
recognized as a provincial priority. One of the components of the A Healthy Baby Clubs
implemented through Early Childhood Development (ECD) program funding addresses
the issue of reduction of alcohol and drug use during pregnancy in several high-risk
communities throughout the province. Family Resource Centres/Healthy Baby Clubs
provide programs to at risk pregnant women to help improve their health and birth
outcomes. Nutrition education, food supplements and a supportive environment are key
components of these programs.
209.
A Labrador Innu Comprehensive Healing Strategy, a joint strategy with the federal
government has been in place for the past three years to address current health and socioeconomic conditions of the Innu in Labrador. The strategy is to address, among other
issues, the critical health issues being faced by the Innu.
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210.
The National Homelessness Initiative ( NHI) has invested $4.2 million in St. John’s
community-based projects between 2000-2002 through a Multi-Stakeholder Community
Plan. This plan is also supported by contributions from the provincial government, the
municipal government, as well as community contributions. Actions taken under the
2000-2003 action plan include construction of a shelter for aboriginal persons, approval
for construction of a shelter for young men co-located with a multi-agency youth services
site and linked to new supportive housing for youth, new transitional housing for women
and children escaping violence, improved transitional housing for men and women with
histories of mental illness, addictions or imprisonments and a new shelter for men and
women in Labrador City. The National Homelessness Initiative has been renewed for
2003-2005, with a further $2.1 million allocated for St. John’s under a new Community
Plan, and an additional $1.6 million for communities outside St. John’s through the
Regional Homelessness Fund.
211.
Residential Rehabilitation Assistance (RRAP) Conversion Program 2000-2003 assists in
the creation of affordable housing for low-income households by providing funding to
convert non-residential properties into affordable, self contained units.
212.
The Shelter Enhancement Program provides funding to assist in renovation and
upgrading emergency shelter space and second stage housing.
213.
The Affordable Rental Housing Program, a bilateral agreement between Canada and
Newfoundland and Labrador will provide $30 million to create new affordable rental
housing through a 50/50 cost shared arrangement between Canada Mortgage and
Housing Corporation and Newfoundland and Labrador Housing Corporation.
Article 7: Protection against torture
214.
As the result of a complaint made by an inmate that he had been confined in a restraint
chair contrary to the policy of the Corrections Division, an investigation was initiated
which concluded that the governing policy needed to be revised to ensure a greater
degree of transparency and accountability. The John Howard Society was invited to
participate in the review through which a new policy on the use of the restraint chair was
formulated. The policy now limits the use of the device to very specific circumstances,
requires advance authorization by a senior manager, requires ongoing audiovisual
surveillance and obliges the Superintendent of Prisons to review the circumstances
surrounding each occasion when the device is engaged.
Article 10: Treatment of persons deprived of liberty
215.
In both the Youth Custody and Adult Custody program sectors, rehabilitative programs
and initiatives are deemed to be very high priorities. Each adult and youth offender is
assessed on admission to custody for the purpose of identifying program needs,
particularly those criminogenic programs which are proven to be effective in reducing
recidivism. Core programs in this category include Reasoning and Rehabilitation (social
cognitive thinking), Substance Abuse, Family Violence, Sexual Offending and Anger
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Management. Adult Basic Education programs are offered in all adult and youth custody
facilities.
216.
The Division of Corrections and Community Services has completed a comprehensive
review of the Use of Force protocol. A new, updated version of the Use of Force policy
and procedures has been constructed, including the incorporation of sections dealing with
legislative authority, guiding principles, the use of force continuum, the situation
management conceptual model, post incident debriefing and the conduct of
investigations. Additionally, selected personnel have received intensive training in the
use of force and will be responsible for conducting training for all corrections personnel.
Article 14: Fair trial rights
217.
218.
The Divisional policy directive governing internal inmate disciplinary tribunals within
the Adult Custody sector has been significantly revised with the incorporation of several
additional protections available to adult offenders in custody:
•
clarification of the specific types of disciplinary offences for which an inmate may be
held accountable;
•
a categorization of offence seriousness and associated limitations on the extent of
penalties which may be imposed;
•
a requirement for full disclosure except where such would compromise personal
safety or institutional security;
•
strict limitations on the use of pre-hearing detention;
•
incorporation of additional safeguards and protections for the inmate during the
disciplinary process; and
•
an appeal process.
Recent case law has resulted in developing new guidelines for maintaining the
independence of the judiciary through financial security. The court’s requirement that
the government provide logical reasons for failing to comply with the salary
recommendations of an independent commission is effective in balancing the need for
judges to be economically independent from the government and governments need to
make prudent and realistic fiscal decisions. The approach, rooted in simple rationality,
strengthens the independence of the judiciary.
Article 17: Right to privacy
219.
The Income and Employment Support Act, SNL 2002 ch. I-0.1 (to be proclaimed) will
further ensure equity in the administration of all departmental programs for any person
deemed eligible under a needs-tested program. It ensures the privacy and confidentiality
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of information but upon consent allows for appropriate exchange of information for
purposes of determining eligibility. Section 4 of the Act proposes access to services in a
timely manner, and requires that all applicants and recipients be treated with dignity and
respect in accordance with new service standards being developed by the department.
The supplementary regulations to this Act have been compiled to be user-friendly and
transparent in nature.
220.
The Access to Information and Protection of Privacy Act (ATIPP), SNL 2002 ch. A-1.1
(to be proclaimed) was enacted on March 14, 2002. When proclaimed ATIPP will
regulate the collection, use and disclosure of personal information under the custody or
control of public bodies. The Act gives an individual the right to request correction of
personal information and a public body is required to make every reasonable effort to
ensure that personal information is accurate and complete. The privacy provisions
contained in Part IV of the Act bring Newfoundland and Labrador in line with other
Canadian jurisdictions that have enacted access/privacy legislation. Part IV of the ATIPP
enhances the protection of personal privacy, encourages better management of personal
information and provides greater openness to individuals seeking their own personal
information.
Article 22: Freedom of association
221.
In 2001, the Chairmanship of the Labour Relations Board was made a full time five year
term position. This allows the Board to resolve issues, including union certification in a
more expedient manner.
Article 24: Rights of the child
222.
The Division of Corrections and Community Services has implemented a number of new
programs designed to facilitate the reintegration of young offenders into the community:
•
The most significant initiative is the implementation of a Pre-Trial Services program
- Bail Supervision which is intended to provide a non-custodial option for supervising
accused young persons in the community pending trial. As an alternative to
remanding a young person in custody, the youth court now has the discretion of
assigning an accused young person to the Pre-Trial Services program which, in effect,
is a community support and supervision resource through which the young person and
the family are provided with the necessary supports and assistance while the young
person continues to reside in the home and until disposition of the case.
•
A new position of Family Therapist has been created through which a highly
qualified therapist is engaged in an intensive process of dealing with family
dysfunction and improving family dynamics as part of the strategy to reintegrate the
young person in the community.
•
The Division has implemented a broad strategic framework for the reintegration of
young offenders who are detained in secure custody facilities. A comprehensive case
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management plan is developed in consultation with various community resource
agencies in the interest of ensuring a fully collaborative and coordinated approach for
assessing criminogenic needs and implementing the community reintegration plan.
223.
The infant mortality rate in Newfoundland and Labrador has continued to decline. Child
health issues are addressed through universal public health programs, including Healthy
Beginnings and Child Health Clinics. Public Health Nurses identify children with health
issues and make referrals for appropriate interventions.
224.
Custody levels of young offenders have been reduced substantially over the past year and
the continuum of community-based services aimed at rehabilitation and reintegration has
been enhanced. This has been achieved through the impacts of the new federal Youth
Criminal Justice Act, and the reprofiling of financial resources from the custody system
to community services and programs, which act as alternatives to custody.
225.
Children’s rights have been advanced through legislation in recent years:
226.
•
The Child and Youth Advocate Act, SNL 2001 ch. C-12.01 established an office of
the child and youth advocate to ensure that the rights and interests of children and
youth are protected and advanced and that their views are heard.
•
The Adoptions Act, SNL 1999 ch. A-2.1 allows for direct placements of children with
adoptive parents and an open records system for adult adoptees and their birth parents
who are seeking contact.
•
The Child Care Services Act, SNL 1998 ch. C-11.1 provides for adequacy and
consistency in regulated child care.
The Child, Youth and Family Services Act, SNL 1998 ch. C-12.1 recognizes the child’s
right to personal safety, health and well being and provides mechanisms for protective
interventions and family support when needed. The Act allows services to be provided to
youth aged 16-18, a group not previously covered under provincial child welfare
legislation.
Article 26: Equality before the law
227.
During the last number of years government negotiated Memorandums of Understanding
with the various unions to conclude Pay Equity. These MOUs bring to a conclusion the
original Pay Equity Agreement which was signed in 1988. As part of the original
agreement, all classes covering approximately 11,000 employees that were receiving pay
equity adjustments were placed on scale and pay equity is now fully implemented and
integrated into the salary scales. This effectively concludes pay equity for the following
groups: General Government Sector, which includes the following employers:
Government Departments, School Boards, College of the North Atlantic Support Staff,
the Public Libraries Board, and the Newfoundland Liquor Corporation (April 1999);
Health Care Sector Part I (March 2000), Nurses (January 2002) and AAHP (January
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2002). The only group that is not concluded and still receiving pay equity adjustments is
NAPE LX. This is a result of an arbitration award that the Union is seeking to overturn
in the courts. This affects approximately 80 employees.
228.
In 2003 the Department of Health and Community Services sponsored a workshop, Cross
Cultural Collaboration: Supporting Immigrant Families of Newfoundland and Labrador.
The workshop identified challenges and concerns that immigrants and refugees face and
discussed possible solutions.
229.
One of the ways in which government, as an employer promotes diversity and human
rights in the workplace is through its Respectful Workplace Program. This initiative is
based on the principle that all employees have a right to a workplace that is respectful and
tolerant of diversity and difference, supportive of dignity, self-esteem and productivity of
every individual, and free of harassment. This joint labor-management initiative supports
diversity, clarifies expectations for respectful behaviour in the workplace, and develops
resolution mechanisms for conflict. It also seeks to provide support and clarify options
for employees who feel they have been harassed. A key component of the Program is the
education and training of government managers on their role in creating a respectful
workplace for all employees. This includes the management of diversity in the
workplace, and the prevention of harassment.
Article 27: Religious, cultural and linguistic rights
230.
Following the Royal Commission on Aboriginal Peoples Report, the Province has
continued to work cooperatively with the Government of Canada and aboriginal groups
in Newfoundland and Labrador to achieve common objectives. These include:
•
The signing in 2002, of agreements with Inco/Voisey’s Bay Nickel Company
(VBNC) Canada, the Innu Nation and the Labrador Inuit Association to enable the
Voisey’s Bay mineral development to proceed in a manner consistent with the
objectives of all parties and maximizing benefits for the Innu, Inuit and other people
of the province;
•
Amendments passed in 2003 to the provincial Human Rights Code to protect the
employment preferences contained in the Innu and Inuit Impact and Benefits
Agreements (IBAs) with Inco/VBNC against challenge;
•
The initialling of the Labrador Inuit Land Claim Final Agreement on August 29,
2003;
•
Continued tripartite negotiation towards an Agreement-in-Principle on the Innu
Nation land claim;
•
Continued participation with Canada and the Innu Nation in implementing the
Comprehensive Innu Healing Strategy, including registration of the Innu under the
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Indian Act on November 21, 2002, and the creation of Reserves at Natuashish
(expected in December, 2003) and Sheshatshiu (expected in 2004);
•
Amendments passed in 2003 to the provincial Expropriation Act to enable the
Province to expropriate land for the purposes of the federal government creating a
First Nations Reserve;
•
As announced in November 21, 2003, negotiations with Canada and the Federation of
Newfoundland Indians (FNI) on the pursuit of a landless band concept to enable offreserve Mi’kmaq to access federal programs and services for Registered Indians; and
•
A commitment to participate in self-government talks with Canada and the
Miawpukek First Nation.
231.
The Province of Newfoundland and Labrador and Canada are participating in a
Comprehensive Claims process with the Innu Nation and Labrador Inuit Association. The
treaties that are expected to result from these negotiations will help enable the Inuit and
Innu to protect and maintain their language and culture.
232.
While the federal government provides funding programs for the promotion of aboriginal
language and culture, the province takes steps to ensure that the K-12 curriculum is
culturally sensitive and appropriate. The Government of Newfoundland and Labrador
supports the introduction of aboriginal-specific curriculum in schools in Aboriginal
communities and, more generally, the incorporation of aboriginal history and culture in
the provincial curriculum. The province supported the introduction of Mi’kmaq, Innu and
Inuit language and culture to the curriculum provided in Conne River and the Innu and
Inuit communities, respectively, the province is in discussions with the Federation of
Newfoundland Indians (FNI) to discuss how the history and culture of the Mi’kmaq
might be better reflected in the provincial curriculum. In 2003, the Department of
Education introduced a new religious education program in the elementary and
intermediate levels that incorporated more about Aboriginal spirituality. The content is
specific to Aboriginal groups in Newfoundland and Labrador, and Aboriginal people
were consulted in the preparation of these texts. Aboriginal groups are also being
consulted in the preparation of a new Grade Eight social studies text, which is about the
history of Newfoundland and Labrador. The Historic Sites Association of Newfoundland
and Labrador has launched a poster series, Aboriginal Peoples of Newfoundland and
Labrador, which will be made available to schools throughout the Province. This poster
series is intended to heighten student’s appreciation of the Aboriginal peoples of
Newfoundland and Labrador, and to enable Aboriginal students to see themselves and
their cultures reflected directly in the school curriculum.
233.
The Department of Tourism, Culture and Recreation has involved Aboriginal groups in
the development of displays that allow the presentation of their own stories at The
Rooms, a new museum and archive centre and the Labrador Interpretation Centre.
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Prince Edward Island
Article 2: Equal rights and effective remedies
234.
The Prince Edward Island (P.E.I.) Human Rights Act was amended in December 1997 to
change the complaint process from a Board of Inquiry system to a Human Rights Panel
System. The Executive Director of the Human Rights Commission can now investigate,
settle, dismiss/discontinue and/or refer complaints to an internal panel hearing, made up
of one or more Human Rights Commissioners. Complainants can request a review by the
Chairperson of the Commission of the Executive Director’s decision to dismiss a
complaint. The panel decision is final and binding on both parties but either party can
make an application for judicial review by the Supreme Court of P.E.I. The panel may
also file an order with the Supreme Court in the appropriate division that is enforceable in
the same manner as an order of the Supreme Court of P.E.I., Trial Division. This
amendment removed the Minister Responsible for the Human Rights Act from having
involvement with the complaint process.
235.
The Act was also amended to allow any person, other than the Commission or an
employee of the Commission, who has reasonable grounds for believing that a person has
contravened the Act to make a complaint to the Commission rather than only allowing
the aggrieved person to make a complaint. This change has allowed for family members
and/or friends of vulnerable individuals to submit human rights complaints on the
vulnerable individuals’ behalf.
236.
In 1998, family status, sexual orientation, and source of income were added as a
prohibited grounds of discrimination in all areas listed under the P.E.I. Human Rights
Act. Family status includes protection for both women and men who have family
obligations such as children or aging parents; sexual orientation includes protection for
gay, lesbian and bisexual individuals; and source of income provides protection for
individuals receiving social assistance benefits. Criminal conviction was also added as a
prohibited ground of discrimination in the area of employment. Individuals who have
previous criminal convictions that are not related to the employment position they are
seeking or are currently employed in are now protected under the act. The Human Rights
Act is deemed to prevail over all other laws of the province.
237.
In the fiscal year 2001-2002, 68 new complaints were filed at the Commission and 39
complaints were carried over from 2000-2001 representing a total of 107 active
complaints for the 2001-2002 fiscal year. The ground of physical and mental disability
accounted for the largest proportion of complaints received by the Commission.
238.
In the fiscal year 2002-2003, 65 new complaints were filed at the Commission and 55
were carried over from the 2001 - 2002 year representing a slight increase in complaints
across most grounds of discrimination. The ground of disability is still the largest
proportion of complaints received by the Commission. Additional information on the
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Commission, its programmes and its complaint resolution process can be found at
http://www.gov.pe.ca/humanrights/.
Article 3: Equal rights of men and women
239.
The addition of family status as a prohibited ground of discrimination under the P.E.I.
Human Rights Act has had an impact on women, in particular, those who have been
vulnerable to this type of discrimination, especially in the area of employment and the
leasing of property.
Article 6: Right to life
240.
The Bedford MacDonald Trust is managing funding from the Federal Homelessness
initiative in Prince Edward Island (P.E.I.). This money has been used primarily to fund
shelters in Charlottetown and Summerside, P.E.I. There is a second phase to this
initiative that is currently underway.
241.
P.E.I. also has an Affordable Housing Agreement with the federal government. The
purpose of this is to support development of affordable housing for low to moderate
income Islanders. There are 2 projects currently receiving funding and a number of others
in various stages of development.
Article 17: Right to privacy
242.
The Social Assistance Act Section 6(1) and (2) address protection of privacy for Social
Assistance clients:
6.(1) The Minister, Directors and social assistance agencies may maintain records
containing information gathered in the administration of this Act.
(2) Subject to this section and the regulations, information contained in a record may
be disclosed where
(a)
the disclosure is with the written consent of the person to whom it
pertains;
(b)
the disclosure is made for the purposes of a criminal investigation or
criminal proceedings;
(c)
the disclosure is made for the purposes of an investigation or court
proceedings under this Act;
(d)
the disclosure is made to a person or organization providing social
assistance services in this province or in another jurisdiction in Canada;
(e)
The information is provided to a person or organization for the purposes of
maintaining it in information systems to be used for the administration of
this Act;
(f)
The disclosure is an aggregate of information which does not identify
particular persons; or
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(g)
the disclosure is, in the opinion of the Minister, essential for the
administration of this Act [...]
The Act was proclaimed August 4, 2003.
243.
The Freedom Of Information and Protection of Privacy came into force in November
2002 for the Department and November 2003 for the Health Regions. The Act provides
new guidelines for the use of personal information by government. There are several
important provisions:
•
public bodies can collect and use personal information only for purposes authorized
under an Act; for law enforcement purposes or for operating programs or activities;
•
people must be informed about the authorization for collecting information and how
that information will be used at the time the information is collected;
•
generally information must be collected directly from individual to whom it relates;
•
an individual may be asked to give consent for their information to be used for other
purposes.
This legislation also addresses issues of sharing information and protection of privacy.
244.
With regard to the procedures for identifying recipients of social assistance, P.E.I. does
not use fingerprint or retinal scans, nor does it have any plans to do so in the near future.
Article 24: Rights of the child
245.
The Safer Communities Initiative, administered by the National Crime Prevention Centre
(NCPC), was launched in June 1998 as part of the Government of Canada’s National
Strategy on Community Safety and Crime Prevention. The National Strategy is aimed at
developing community-based responses to crime, with a particular emphasis on children
and youth, Aboriginal people, and women. The Safer Communities Initiative is
comprised of four funding programs: the Crime Prevention Investment Fund, the Crime
Prevention Partnership Program, the Community Mobilization Program and the Business
Action Program on Crime Prevention. Under the Community Mobilization Program, the
NCPC has provided $345,280 to help fund 27 crime prevention projects in P.E.I..
Article 25: Civic responsibility and political participation
246.
The new prohibited grounds added to the P.E.I. Human Rights Act in 1998 include the
area of volunteering, including political organizations, and membership in professional,
business or trade, and employment organizations.
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Nova Scotia
Article 2: Equal rights and effective remedies
247.
The Office of African Nova Scotian Affairs was established in August 2003, in response
to the Final Report on Consultations with the African Nova Scotian Community (July
2001). An interim Executive Director was appointed in November 2003. The purpose of
the office is to provide advisory and consultative services to government departments to
help develop and implement legislation, policies and programs in support of equality of
opportunity for Black people in Nova Scotia. It functions as both an advisory council and
a government agency.
248.
Nova Scotia has provided additional funding for legal aid and negotiated new agreements
for legal aid funding with the federal government.
249.
The Self-Represented Litigants Project is a major initiative of the Court Services Division
of the Department of Justice. The objective is to provide coordinated and accessible
services for self-represented litigants and to develop a consistent strategy to improve
services to self-represented litigants that are effective and understandable. The program
develops realistic programs and tools to assist self-represented litigants at all levels of
court administered by the Province. The program will improve current court services in
practices and protocols for self-represented litigants and staff, in order to increase the
efficiency of court administration and proceedings in all levels of court administered by
the Province.
Article 3: Equal rights of men and women
250.
Nova Scotia continues to have a serious under-representation of women holding elected
office. To address this problem, the Nova Scotia Advisory Council on the Status of
Women designed and offered workshops to attract more women to political life.
Seventy-six participants in five regions of the province rated the workshops very
favourably. Women’s plans for future activity increased in four political arenas:
community (38% increase), municipal (54% increase), provincial (37% increase), and
federal (37% increase). In follow-up, the Advisory Council will develop a women’s
campaign school, using its recently revised popular publication, Votes for Women: A
Political Guide Book for Nova Scotia Women, which will be released in the 2003-04
fiscal year.
251.
In November 2001 the Domestic Violence Act was enacted. The Act allows victims to
apply to justices of the peace for temporary orders that protect their safety as well as their
economic well-being. The order may be made to ensure the immediate protection of the
victim. In the first three months, 78 victims applied to the courts for orders.
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Article 6: Right to life
252.
September 2002, the governments of Canada and Nova Scotia announced a $37.26million Affordable Housing Program Agreement. Approximately 1,500 affordable
housing units will be created or will undergo renovation in Nova Scotia over the next five
years. More Nova Scotians will be able to gain access to affordable housing. Funding
under this agreement will be used for provincially designed programs that will support
the creation of new rental housing and home ownership. It will also support the
rehabilitation or conversion of existing housing, which is at risk of loss from the housing
stock.
253.
The Metro Turning Point Society built a new shelter to meet the needs of homeless men
in the Halifax area in 1999. The society provides overnight shelter, daytime support and
trustee services to homeless men. The new facility provides space for a range of program
activities, including supportive counselling, crisis intervention, a day service resource
area, outreach street services, medication control, trustee money management, housing,
health and legal support. The Department of Community Services and Halifax Regional
Municipality support and fund this initiative.
254.
The Employment Support and Income Assistance Act came into effect August 2001. The
Act replaced a complex municipal and provincial support systems with a single
provincial system designed to provide better supports to help people become self-reliant
within their capacity to do so. Employment supports coupled with income assistance have
been enhanced to include more money for transportation and child-care. The
Employment Support and Income Assistance program is transparent and accessible.
Article 9: Right to liberty and security of person
255.
A new secure treatment center for children and youth with emotional and behavioural
problems who require out-of-home placements has been constructed. Secure treatment is
a program to help stabilize children with behavioural and emotional problems so they can
eventually return to their home communities and families. It is a temporary stop, and
children will stay at the centre for up to 90 days. The Center was built so that the
children and youth can remain close to their families and home communities and not have
to go out of the Province. The centre will become part of a range of programs for children
and youth which includes secure treatment, foster care, group homes, residential
treatment centres and the parent counsellor program.
256.
A new federal Youth Criminal Justice Act and Provincial Youth Justice Act became
effective April, 2003, changing the way young offenders are managed both in custody
and while under community supervision. The province has adopted new policy,
procedures and programs to meet the requirements of these new legislative programs,
there also came into force in April 2003. In a typical year, nearly 3,000 youth cases are
brought before the courts in Nova Scotia. The new legislation is based on the principle of
keeping young offenders separate from adults.
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Article 10: Treatment of persons deprived of liberty
257.
A new Central Nova Scotia Correctional Facility, co-located with the East Coast Forensic
Psychiatric Hospital, commenced operation in 2001. The correctional facility can house
272 offenders, including 48 female offenders housed in a separate unit. State of the art
security features include enclosed high security exercise yards, improved sight lines and
single-cell design, which provide a safer, more secure atmosphere.
258.
The East Coast Forensic Psychiatric Hospital will be a place for research and teaching, as
well as for treating individuals who suffer from serious psychiatric disorders. The
forensic psychiatric hospital will consist of two rehabilitation units with 30 beds in each;
a mentally-ill offender unit, providing 12 beds for treatment and 12 for court- ordered
assessments; and two transition units, each with 7 beds. In addition, the hospital will
administer a community program that provides strict guidelines and supervision for
patients who have been discharged into the community.
Restorative Justice Program
259.
The Restorative Justice Program is a partnership between government and communities
to develop restorative justice capacities in Nova Scotia. The program uses existing youth
justice agencies to deliver Restorative Justice Programs. After a trial period, the Program
expanded province-wide in September 2001.
260.
Restorative justice provides community members with an opportunity to voice their
feelings and concerns and show disapproval of the offender's behaviour without branding
them as outcasts; and be actively involved in a process that holds offenders accountable
and repairs the harm caused to the victim and the community. Restorative programs
place a high value on face-to-face meetings between the victim, offender and community.
During the course of the meeting, each party is given an opportunity to tell the story of
the crime from their own perspective, and talk about their concerns and feelings. The
meeting helps the parties develop an understanding of the crime, of the other parties, and
of the steps needed to make amends. The meeting concludes with an agreement outlining
how the offender will make reparation. Reparation can include monetary payment,
service to the victim, community service or any other outcome agreed upon in the
process. Terms of the agreement can be personalized to take into consideration the
individual circumstances of the offender.
Article 14: Fair trial rights
261.
The Court and Administrative Reform Act, 1996, c. 23, provides that certain orders of a
board, tribunal or commission may be enforced in the same manner as a judgment of the
Supreme Court of Nova Scotia.
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Article 17: Right to privacy
262.
In October 2002 the Nova Scotia Advisory Council on the Status of Women submitted a
brief in response to a Department of Justice Canada consultation on the inclusion of
voyeurism as an offence under the Criminal Code of Canada. New technologies for
viewing, recording, and distributing pornographic material can be and are being used to
create pornographic images without the consent or even knowledge of the woman
portrayed. Voyeurism is also of concern as it is estimated that 20% of perpetrators go on
to commit sexual assault. The Council's recommendation to include voyeurism in the
Criminal Code is therefore in the interest of protecting victims from humiliating and
exploitive invasions of their privacy and of preventing further criminal acts such as
sexual assault.
Article 24: Rights of the child
263.
Nova Scotia provides low-income families with an integrated child benefit, which
combines the Nova Scotia Child Benefit and the Canada Child Tax Benefit into one
monthly payment, whether they receive income assistance or are in the paid workforce.
Nova Scotians are receiving the full amount of the National Child Benefit available to
them. The National Child Benefit Supplement and Nova Scotia Child Benefit were
introduced in 1998. In 2001 Nova Scotia ceased to offset the National Child Benefit
Supplement from income assistance payments to families. All eligible families filing a
tax return receive the child allowances. Children’s allowances were removed from the
income assistance program and replaced by combining them with the National Child
Benefit and Nova Scotia Child Benefit programs. Now, individuals on assistance do not
have to worry about losing their children’s benefits if they leave the system to enter the
work force. These changes also recognized children in low income working families by
providing the Nova Scotia Child Benefit Program to all families with annual incomes of
$20,921 or less.
264.
Since 2000, Nova Scotia has created 190 portable subsidized child-care spaces. A
portable space means a family can choose any licensed child-care centre that provides
full-day services and that has signed a letter of agreement with the Nova Scotia
Department of Community Services. These spaces are designated for children up to 12
years of age. Since portable subsidized child-care spaces are assigned to the child and not
to the child-care centre, the space and the subsidy follow the child if the family has to
move within the province. Portability means parents can seek work outside their home
community without losing their subsidized child-care space.
Article 27: Religious, cultural and linguistic rights
265.
In 1991 the then Minister of Education, a Francophone, was assigned responsibility for
reporting to the Cabinet on matters relating to Acadian Affairs. The post has since been
held by the Francophone member of the Executive Council. In 1993 a coordinator of
Acadian Affairs was appointed. The mandate of Acadian Affairs is to help anticipate,
stimulate and support the socio-economic development of the Acadian population of
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Nova Scotia. Its core business functions are consulting with federal and provincial
departments and agencies; consulting with Acadian institutions, organizations and
community groups; advising on policies and initiatives at the intergovernmental level;
and providing support services.
266.
In 1999 the Minister of Justice became Minister responsible for Aboriginal Affairs. In
2000 the Deputy Minister of Aboriginal Affairs was replaced by a Chief Executive
Officer. The object and purpose of Aboriginal Affairs are to facilitate and promote a
coordinated approach within government on matters relating to aboriginal people;
represent the interests of Nova Scotia in intergovernmental, bilateral and trilateral
initiatives and negotiations; and provide research analysis and policy advice on aboriginal
issues.
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New Brunswick
Article 2: Equal rights and effective remedies
267.
The New Brunswick Human Rights Act was last amended in 1996. These amendments
gave effect to some of the recommendations for procedural reform of the Act made in the
Government-commissioned study of 1989, Towards a World Family: A Report and
Recommendations respecting Human Rights in New Brunswick (The Ferris Report). The
amendments addressed three significant issues:
•
A section was added to the Act allowing for the delegation of decision-making in
complaints from the Commission to its Director;
•
Amendments were brought in allowing for the referral of human rights boards of
inquiry to the Labour and Employment Board for adjudication; and
•
The Human Rights Commission was given carriage of complaints in matters referred
to Boards of Inquiry.
268.
The first amendment has meant that complaints that are settled, withdrawn, abandoned or
clearly not within the Commission’s jurisdiction, can be dealt with in summary fashion at
the Director’s level. Decisions at this level are subject to review by the Commission. In
1997, the Commission adopted a public guideline governing its process requirements in
the exercise of delegated authority. In November 2001, the guideline was amended to
further delegate to the Director authority to dismiss complaints that are clearly without
merit.
269.
The second amendment has facilitated the appointment of Boards of Inquiry. While in the
early 1990s there were several years where no complaints were referred to a Board of
Inquiry, since the 1996 amendments, the number of Board referrals has increased
steadily. These first two amendments and related administrative practices have greatly
reduced the time required to respond to complaints and improved access to the
Commission’s compliance process.
270.
The last 1996 amendment gives the Commission carriage of complaints before the Board
and confirms the Commission’s separate standing as the defender of the public interest in
ensuring that the Act is not infringed. While the Commission does not have authority to
initiate complaints on its own motion, its privileged status as a party before the Board
with carriage of the matter underscores the public commitment to human rights
enforcement. Furthermore, as the Commission typically participates as a full party in
Board proceedings represented through its counsel, complainants often rely on
Commission’s counsel in presenting their case. In the absence of legal aid assistance to
complainants, the Commission’s enhanced role at Boards is also an important measure in
ensuring access to justice.
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271.
The New Brunswick Human Rights Commission (HRC) was also set up to educate the
public about their rights, to advance the principle of equality, and to receive and attempt
to resolve complaints of discrimination in various sectors: employment, services,
accommodations and facilities, purchase or lease of real property, publication of signs,
symbols or representations or membership in trade, business or professional associations.
Approximately 75 percent of complaints received stem from the employment sector.
Over the past ten years, physical disability and mental disability complaints have edged
out sex discrimination and sexual harassment complaints as the most commonly cited
ground of discrimination in complaints brought before the Commission.
272.
The Human Rights Commission has three education officers on staff who have the
responsibility to provide information and education to the people of New Brunswick on
the Human Rights Act and on human rights in general. The strategy adopted by the
Commission is to focus on priority areas for education in any particular year. The most
recent priorities are the duty of employers to accommodate people with a disability and
on the business case for human rights in general. The Commission also provides
information to schools and teachers throughout the province. Callers to the Commission
with complaints or questions are also provided with information on their rights under the
Act and the process to follow in making a formal complaint.
273.
In addition to the legislative changes outlined above, the Commission has also modified
its practice in terms of recommended ranges of settlement amounts to compensate victims
of discrimination for moral or general damages arising from their experience of
discrimination. Until 2001,the broad range of general damages sought by the
Commission in cases of discrimination, in accordance with its internal Guideline on
Remedies, was between $2000 and $10,000. While New Brunswick has never had any
ceiling on monetary awards of this nature, other, larger jurisdictions in Canada, have and
this in turn has had a dampening effect on the jurisprudence. Awards granted by human
rights tribunals in jurisdictions where no legislated ceiling was in place tended to follow
more established jurisprudence from jurisdictions where the amount of such awards was
limited. Over the past decade these legislated ceilings have been removed or augmented
considerably, either by statute or by judicial interpretation, yet recent awards do not yet
fully reflect these legislative and jurisprudential developments.
274.
In New Brunswick the courts are equally accessible to all. Legal aid is available to all
qualified citizens and landed immigrants; neither race, ethnicity nor culture are
considered in determining eligibility.
275.
Police Cadet Trainees receive some training on human rights during their basic six-month
Cadet Training Program. Serving Police Officers may receive similar training during
upgrading courses throughout their career.
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Article 3: Equal rights of men and women
276.
In New Brunswick, in 2003, all elected female government members (5) were appointed
to Cabinet in the following portfolios: Office of Human Resources; Departments of
Training and Employment Development (also responsible for Status of Women);
Education; The Environment and Local Government; Tourism and Parks. Women now
comprise 28% of the provincial Cabinet.
277.
Today, 31% of lawyers in New Brunswick are women. This is changing, however, as
increasing numbers of women choose to pursue a legal education and career. The most
experienced lawyers are overwhelmingly men: just 6% of lawyers with more than 25
years' experience are women, and only 18% of lawyers with 20-25 years. 37% of lawyers
with 10-20 years experience are women, and 38% of lawyers with 5-10 years. However,
exactly 50% of lawyers with less than 5 years experience are women.
278.
These statistics are reflected in judicial nominations. All lawyers who have been
practicing for 10 years are eligible to apply for appointment. At present, only 23% of
applicants are women. It is significant that although lawyers are eligible to apply after 10
years of practice, very few applicants apply before completing 20 years of practice (38%
of female candidates and 18.6% of male candidates have fewer than 20 years experience),
and, as noted, the group of lawyers with more than 20 years experience is
overwhelmingly male.
279.
Despite this, 3 of the last 9 judges appointed to the Provincial Court (33%) have been
female; this exceeds the proportion of eligible candidates that are female. In 2003 the
province appointed it’s first female Associate Chief Judge. At present, 4 of 27 judges are
women (14.8%).
280.
In 2002, the Government of New Brunswick established a Women’s Issues Branch of the
Executive Council Office. The Branch is responsible for providing advice to the Minister
Responsible for the Status of Women; coordinating the government’s three-year action
plan on violence against women; supporting the Wage Gap Roundtable; and conducting
gender based analysis on any program, policy, or legislative changes brought before
government.
281.
In 2002 New Brunswick convened a Wage Gap Roundtable that submitted its final report
to government in December 2003. The report lays out the complexity of the wage gap
issue and the need to adopt interactive solutions. The report also found no proof that pay
equity legislation and practices alone can resolve the wage gap; rather, it asks the
government to address the underlying causes and contributing factors. Government
response to this report is forthcoming.
282.
Employment Standards legislation in New Brunswick recognizes the right to equal pay
for equal work. The New Brunswick Human Rights Act has provisions with respect to sex
discrimination in the employment sector that allow for challenges raising pay equity
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concerns in individual cases. However, relatively few complaints of this nature have been
filed with the Human Rights Commission.
283.
The Commission has received and investigated a number of complaints of sex
discrimination related to pregnancy, since maternity and parental leave benefits under
Federal Employment Insurance legislation were increased. The Commission is concerned
with the persistence of sex-based discrimination in this area and is currently preparing a
public guideline for further education and human rights promotion on this topic. Detailed
information on initiatives adopted in New Brunswick to ensure equal rights between men
and women are provided in Canada’s Fifth Report on the Convention on the Elimination
of All Forms of Discrimination against Women at the following Web-site:
http://www.canadianheritage.gc.ca/progs/pdp-hrp/docs/cedaw5/cedaw5part2_e.pdf
284.
The New Brunswick Human Rights Commission has not received any complaints of
discrimination from women of Arab or Muslim descent alleging discrimination on
grounds of sex and religious practices since the events of September 11th, 2001, nor has
there been any increase in race-based complaints generally since these events.
Article 4: Derogation clause
285.
The Minister of Public Safety may declare a state of emergency under the Emergency
Measures Act of New Brunswick. Similarly, a Municipality may declare a state of local
emergency. In declaring a state of emergency or local emergency, the Minister or the
Municipality, as the case may be, may do everything necessary for the protection of
property, the environment, and the health or safety of persons therein. Under the same
Act, the Disaster Assistance to Municipalities Regulation governs the provision of
chargeable and non-chargeable assistance to municipalities by the province. The law
clearly details what can occur during a declaration and there are checks and balances for
continuing and terminating a declaration.
286.
Even though a declaration can impinge on a number of rights, each one of them must be
described and the affected public informed. Declarations are also limited geographically
and spatially as they automatically are revoked unless renewed.
Article 10: Treatment of persons deprived of liberty
287.
In compliance with the federal Youth Criminal Justice Act Section 84, it is the policy of
the Department of Public Safety, Community and Correctional Services Division, that all
young persons are to be held separate and apart from any adult who is detained or held in
custody. Procedures to follow are contained within the Young Persons Institutional
Policy and Procedures (2002) and the Institutional Services Policy and Procedures (2001)
of the Department of Public Safety, Community and Correctional Services Division.
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Rehabilitation and Education Programs for People Detained
288.
Rehabilitation and Education Programs depend on: time; which jail; classification; and
what the detained person wants. Depending upon the institution and the length of
sentence, the programs available to individual offenders will vary. Responsibility for
planning programs is two-fold: it rests with the individual offender and also with the
classification committee. Most institutions make available educational programs such as
upgrading, high school equivalency and correspondence courses, small library and
recreational programs. There are regular visitors from church groups and from other
community support agencies such as Alcoholics Anonymous, John Howard Society,
Elizabeth Fry Society, and Coverdale Centre.
Saint John Moncton Madawaska Dalhousie
AA (Alcoholics Anonymous)
NA (Narcotics Anonymous)
GA (Gamblers Anonymous)
GED / Upgrading
(General Educational Development)
Literacy
Computer Skills
OSAP
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
(Offender Substance Abuse Program)
ADAPT
(Amending Disruptive Abusive Patterns Together)
Anger Management
Kitchen
Carpentry
Maintenance
Recreational
Art
Church Services
Bible Study
Community Work Program
x
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Specific Measures Available for Women
289.
The New Brunswick Government offers Self Esteem/Living Skills/ Anger Management/
Substance Abuse Treatment to female offenders.
Article 18: Freedom of thought, conscience and religion
290.
The Education Act, assented to February 28, 1997, provides for one publicly funded
educational system, from kindergarten through to Grade 12.
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291.
Section 2(2) of the Education Act states that all schools established under this Act are to
be non-sectarian.
292.
Section 16(1)(c) of the Act provides that no action shall be taken with respect to the
absence of children from school on a day regarded as a Holy Day by the Church or
religious denomination to which the child, or parents of the child, belong.
293.
In July 2001, the Leave of Absence for Religious or Ethnic Purposes policy was revised.
The Department of Education respects differences in its employees and their beliefs, and
recognizes the fundamental principle that all persons are equal in dignity and human
rights. An employee may be granted a leave of absence, on request, for religious or
ethnic purposes, including the observance of religious holidays. The Department of
Education strives to provide a positive working and learning environment for all
employees and students, free from any form of discrimination.
Article 26: Equality before the law
294.
The New Brunswick Human Rights Act expressly prohibits discrimination on the basis of
twelve enumerated grounds. These are: race, colour, religion, national origin, ancestry,
place of origin, age, physical disability, mental disability, marital status, sexual
orientation or sex.
295.
In 1998, the Supreme Court of Canada indicated that human rights legislation is subject
to the Canadian Charter of Rights and Freedoms and as the list of enumerated grounds
under the Charter is not closed, so too should human rights codes aimed at achieving
equality of opportunity be interpreted in a purposive and non-restrictive manner.
296.
Over the past decade, the New Brunswick Human Rights Commission (NBHRC) has
continued to be the principle enforcement mechanism available to New Brunswickers for
the maintenance of the equality rights guaranteed under the International Covenant on
Civil and Political Rights (ICCPR). More recently, and particularly since the
development of a similar purposive approach to equality rights under the Canadian
Charter of Rights and Freedoms, the Commission has sought to carry out its work of
achieving equality of opportunity in New Brunswick, in a manner consistent with the full
range of rights protected under the ICCPR and its companion treaty, the International
Covenant on Economic Social and Cultural Rights (ICESCR).
297.
The Commission continues to approve requests for special programs aimed at reducing
barriers to employment in sectors in which various segments of the workforce are
traditionally underrepresented. Its experience has shown that public sector employers are
more frequent users of the special programs approval process under section 13 of the Act,
than employers in the private sector. The Commission has recently abandoned its practice
of insisting on approval of all such programs. A purposive interpretation of the Act, in
light of subsection 15(2) of the Charter, suggests that this provision should be interpreted
as being permissive rather than mandatory. This means that resources committed to
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review an approval of plans can now be freed up to promote the adoption of such
programs within the private sector on a voluntary basis.
298.
In New Brunswick, since Canada’s last report under the ICCPR, the Commission has
adopted an interpretation of ancestry and national origin discrimination as grounds that
may be inclusive of language. It has therefore investigated and settled or dismissed such
complaints. However, there has been no judicial determination with respect to the
Commission’s assertion of jurisdiction in these matters at this time.
299.
From 1995 to date, the Commission has also developed several formal guidelines to
provide advice to employers and service providers with respect to their obligations under
the Act and the Commission’s own interpretation of such, and to clearly structure and
facilitate the complaint process for all parties concerned. These include:
• Guidelines on Disclosure of File Information in Criminal Prosecutions;
• Guideline on Privilege and the Human Rights Commission;
• General Criteria for the Investigation of Complaints of HIV/AIDS Discrimination;
• Guideline on Time Limit Extension for Complaint Initiation;
• Guideline on Delegation Compliance Functions under the Human Rights Act;
• Guideline on Fashioning Remedies under the New Brunswick Human Rights Act;
• Guideline for BFOQs (bona fide occupational qualification) and BFQs (bona fide
qualification) and the Duty to Accommodate; and
• Guideline on Drug and Alcohol Testing in the Workplace.
300.
Further Guidelines currently in development or available in draft form address more
substantive aspects of the Act’s application and include:
• Discrimination in the Housing Sector;
• Accommodating Physical and Mental Disability at Work;
• Pregnancy related Discrimination;
• Discrimination and Language;
• Grooming and Dress Codes;
• Discrimination and Mandatory Retirement; and
• Sexual Orientation Discrimination.
Article 27: Religious, cultural and linguistic rights
301.
The province of New Brunswick is an officially bilingual jurisdiction with a sizeable
French language minority and English language majority. In the last two years the
Province has also undertaken a major reform of the Official Languages Act, creating a
separate Official Languages Commissioner and extending the reach of the Act to
municipal governments and third parties contracted to provide government services. The
legislative reforms also more forcefully guarantee the right to be heard in the official
language of one’s choice by a tribunal that can hear the parties without the aid of an
interpreter.
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Québec
Article 2: Equal rights and effective remedies
302.
In 1995, the Charter of Human Rights and Freedoms (the Charter) (R.S.Q., c. C-12) was
amended so that the Commission des droits de la personne, now called the Commission
des droits de la personne et des droits de la jeunesse (CDPDJ), was also given the mission
of protecting the interests of the child recognized by the Youth Protection Act (R.S.Q., c.
P-34.1). In 2000, the CDPDJ was also given the mission of applying the Act Respecting
Equal Access to Employment in Public Bodies (R.S.Q., c. A-2.01).
303.
Between January 1, 1995, and September 30, 2003, the CDPDJ, as part of its mandate to
investigate under the Charter, opened 8,127 investigation files. Of this number, 96 files
were opened on its initiative. The CDPDJ also intervened in a number of cases involving
children’s rights, and acting in this capacity, it authorized 1,233 investigations between
January 1996 and September 30, 2003, 98 of which were undertaken on its initiative.
304.
With respect to litigation, between January 1, 1995, and March 31, 2003, the CDPDJ
brought 384 actions, 364 of which concerned the application of the Charter and 20 of
which were requests filed under the Youth Protection Act. During the same period, 284
judgments were rendered under the Charter, 21 of which concerned the application of the
Youth Protection Act.
305.
With regard to education and information concerning the rights protected by the Charter
and children’s rights, the CDPDJ has published various documents. They include The
Exploitation of the Elderly: Towards a Tightened Safety Net, published in 2001, and
Aboriginal Peoples: Facts and Fiction, a teaching tool published in 2002. In 2003, the
CDPDJ produced a review of the first 25 years of the application of the Charter of
Human Rights and Freedoms. The document makes 25 recommendations for changes to
the Charter of Human Rights and Freedoms. These recommendations are designed to
enhance the status and impact of the Charter and the role of the institutions associated
with it.
Article 3: Equal rights of men and women
306.
In 1997, Quebec began taking an integrated approach to promoting equality between men
and women. These initiatives, for which the Ministère du Conseil exécutif, the Secrétariat
du Conseil du trésor and the Secrétariat à la condition feminine are jointly responsible,
are designed to gradually introduce within the Government of Quebec, a process for
systematically reviewing how the development of legislation, policies, plans and
programs distinguishes between men and women.
307.
In 1995, the National Assembly adopted the Act to Facilitate the Payment of Support
(R.S.Q., c. P-2.2). This Act sets out the procedures for collecting support, generally
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awarded to women, and provides for enforcement measures. Since the Act came into
force, the percentage of support that is paid in full, in a timely fashion, has increased
from 45% to 79%.
308.
In 2002, the National Assembly adopted the Act to Combat Poverty and Social Exclusion
(R.S.Q., c. L-7). The purpose of this Act is to guide the Government and the whole
society of Québec towards a process of planning and implementing actions to combat
poverty, prevent its causes, reduce its effects on individuals and families, counter social
exclusion and work towards a poverty-free Quebec. To this end, the Act creates the
obligation to submit an action plan and establishes a national strategy to combat poverty
and social exclusion and the Fonds québécois d’initiatives sociales dedicated to funding
initiatives. This fund replaces the Fund to Combat Poverty through Reintegration into the
Labour Market, which was created in 1997.
309.
The Pay Equity Act (R.S.Q., c. E-12.001) was adopted by the National Assembly in 1996.
The purpose of this Act is to redress differences in compensation due to systemic gender
discrimination suffered by persons who occupy positions in predominantly female job
classes.
310.
In 1997, legislative measures were adopted to encourage mediation in family proceedings
(An Act to Institute, Under the Code of Civil Procedure, Pre-hearing Mediation in
Family Law Cases and to Amend Other Provisions of the Code (S.Q. 1997, c. 42)).
311.
The Act Respecting Equal Access to Employment in Public Bodies (R.S.Q., c. A-2.01)
was adopted by the National Assembly in 2000. This Act establishes a special framework
to promote equal access to employment for women, Aboriginal people, persons who are
members of visible minorities and persons whose mother tongue is neither French nor
English and who belong to a group other than the Aboriginal peoples group or the visible
minorities group.
Article 6: Right to life
312.
Québec
In 2001, the Ministère de la Santé et des Services sociaux published a document entitled
Pour une approche pragmatique de prévention en toxicomanie – Orientations, Axes
d’intervention et Actions [For a Pragmatic Prevention Approach in Drug-addiction –
Orientations, Axes of intervention and Actions] and implementation of the approach is
continuing. The document proposes, among other things, to better equip health
professionals to improve detection and treatment in different situations involving the
improper use of psychotropic substances, in particular foetal alcohol syndrome and the
effects of alcohol on unborn children. In the case of foetal alcohol syndrome, special
measures have been introduced in the regions where there is an Aboriginal clientele. For
the benefit of the Cree population of Northern Quebec, a brand new information and
prevention program that targets the school population has just been established. This
initiative is funded jointly with the federal government.
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313.
In 1998 Quebec adopted Quebec’s Strategy for Preventing Suicide: Help for Life. Since
its implementation, the suicide rate appears to have stabilized. Work is now being done to
update this strategy, with emphasis on setting new objectives, the results of which will be
measurable in 2008. With regard to the suicide rate among the Cree Nation, it should be
noted that it is comparable to the national rate observed. In this region, suicide prevention
is part of the regular prevention programs offered by the 9 clinics of the villages of the
Cree Territory of James Bay. In Nunavik, suicide is a major as this area has the highest
suicide rate in Canada. With special funding from Quebec’s Ministère de la Santé et des
Services sociaux, a network of 14 youth centres is now being established in the territory
to combat social distress and suicide among Inuit youth.
314.
With regard to the prevention of unwanted pregnancies, departmental guidelines on
family planning were published in 1996. Family planning services are offered to the
public throughout Quebec. Some services are offered in local community service centres,
while others are provided in hospitals. Since 2002, as a result of a decision by Quebec’s
Ministère de la Santé et des Services sociaux, women in Quebec have had increased
access to emergency oral contraception. This public health measure was introduced
principally in order to reduce unwanted pregnancies in the 15-to-24 age group.
Article 7: Protection against torture
315.
In 2000 the National Assembly adopted the Police Act (R.S.Q., c. P-13.1). This Act
establishes, in particular, a means of making police accountable in denouncing corrupt
practices, whether they are violations of the Code of Ethics, internal discipline or the
Criminal Code.
316.
The shared commitment of the Ministère de la Sécurité publique (MSP) and the police
forces to strictly control police operations involving the public is expressed in the Guide
de pratiques policières [manual of police practices]. In 1995, the MSP reviewed the
training offered to employees in detention centres with respect to physical intervention
techniques. The purpose of this training is to protect staff and incarcerated persons
through appropriate intervention techniques.
317.
As for research activities, drawing on Civil Code provisions, the Ministère de la Santé et
des Services sociaux published in 1998 a Ministerial Action Plan on Research Ethics and
Scientific Integrity. This action plan is based on the concept that following rigorous
standards of integrity and ethics in research is beneficial to research activities. For
example, all research projects involving people must be approved by a research ethics
board before they begin.
318.
In 1998, the Quebec legislature amended article 21 of the Civil Code of Québec with
respect to medical research (S.Q. 1998, c. 32). These amendments allow the spouse or, in
cases where the spouse is unable, a close relative or person with specific interest in the
person, to consent, for a person of full age who suddenly becomes incapable of consent,
to an experiment that, insofar as it must be undertaken promptly, does not permit, for lack
of time, the designation of a legal representative. Furthermore, a minor or a person of full
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age who is incapable of giving consent may not be submitted to an experiment if the
experiment involves serious risk to his health or, where he understands the nature and
consequences of the experiment, if he objects.
319.
Between January 1995 and September 2003, the Commission des droits de la personne et
des droits de la jeunesse (CDPDJ) received 236 calls regarding disciplinary measures
taken against children in custody pursuant to the Youth Protection Act or the Youth
Criminal Justice Act. 134 investigation findings were made on this matter.
320.
Further, in 1998, the CDPDJ issued an opinion on intensive supervision of children
placed in rehabilitation centres pursuant to the Youth Protection Act.
Article 8: Protection against slavery and forced labour
321.
On October 10, 2001, the Government of Quebec issued an order in council declaring
that it is bound by Convention no. 29 Forced Labour, 1930 of the International Labour
Organization (ILO). At first, compliance and opportunity studies were prepared with all
Quebec departments and agencies. In that way, Quebec demonstrated its clear desire to
be bound by international instruments concerning protection from slavery and forced
labour for children, women, immigrants and refugees.
Article 9: Right to liberty and security of person
322.
In late 1997, an Act respecting the protection of persons whose mental state presents a
danger to themselves or to others (R.S.Q., c. P-38.001), a reform of the previous law on
the protection of the mentally ill, was adopted. The Act, whose main principle is the
protection and respect of rights, ensures among other things that the person affected and
his family will receive complete information about being placed under guard.
323.
The new act sets out the rules governing confinement of persons whose mental state
presents a danger to themselves or to others. It also deals with temporary confinement
ordered by the court for a psychiatric examination and provides, in emergencies, that a
person can be placed in confinement without the authorization of the court if there is a
grave and immediate danger to himself or to others.
Article 10: Treatment of persons deprived of liberty
324.
In 2002, the Quebec National Assembly adopted the Act respecting the Québec
correctional system (R.S.Q., c. S-40.1). This act, for which the date of coming into force
has not yet been set, clearly reaffirms that social reintegration is the key principle behind
all actions taken by participants in the correctional system. Moreover, the Act defines the
roles of the participants and sets out various responsibilities of the Correctional Service
towards the people under their care.
325.
Since November 2002, the Ministère de la Sécurité publique (MSP) has been working on
implementing procedures for appearances by telephone on weekends and holidays. These
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procedures would enable people who are arrested to appear before a justice of the peace,
who would rule on their release or detention while awaiting proceedings, as quickly as
possible after their arrest. In this way a person who is detained following arrest would be
held by order of a judge.
326.
Furthermore, since 1995, the MSP has had an orientation and training program for new
correctional service officers. This mandatory program makes officers aware of the rights
of incarcerated persons and is given before they begin working.
Article 12: Mobility rights
327.
Prior to the coming into force of the Agreement on Internal Trade (AIT) in December
1994, the Government of Quebec confirmed its intention to respect the commitments and
obligations set out in Canadian trade agreements. Since then, it has ensured that its
obligations will be met by adopting the necessary regulatory amendments. The Act
respecting the implementation of the AIT (R.S.Q., c. M-35.1.1) was adopted in 1997. The
AIT firstly defines broad principles of open markets, which are based on the free
circulation of persons, goods, services and investments.
328.
As well, with respect to the mobility of workers, the residential requirements in
professional legislation was repealed, thus allowing workers from outside the province to
become members of Quebec professional orders.
Article 14: Fair trial rights
329.
The Act respecting administrative justice (R.S.Q., c. J-3) was adopted on December 16,
1996. The purpose of the Act is to affirm the specific character of administrative justice,
to ensure its quality, promptness and accessibility and to safeguard the fundamental rights
of citizens. The Act establishes the general rules of procedure applicable to individual
decisions made in respect of a citizen. Such rules of procedure differ according to
whether a decision is made in the exercise of an administrative or adjudicative function,
and are, if necessary, supplemented by special rules established by law or under its
authority. The Act also institutes the Administrative Tribunal of Quebec and the Conseil
de la justice administrative and sets out provisions concerning the members of the
Administrative Tribunal with respect to their selection and appointment, the length and
renewal of their terms of office, remuneration and other working conditions and
premature termination of the term of office.
330.
The Act respecting the implementation of the Act respecting administrative justice (S.Q.
1997, c. 43), passed on June 19, 1997, introduces provisions to the Act respecting the
Régie du logement to make applicable to the commissioners of the Régie the rules
governing recruitment, selection, appointment, reappointment and revocation, as well as
the ethics rules contained in the Act respecting administrative justice, applicable to
members of the Quebec Administrative Tribunal. The Act also enacts the transitional
principle that the new law will apply immediately and sets out transitional rules to govern
members of bodies incorporated into the Administrative Tribunal as well as the members
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of the Régie du logement and of the Commission des lésions professionnelles. It was
amended in 2002 to provide greater independence for members of the Quebec
Administrative Tribunal, the Commission des lésions professionnelles, the Régie du
logement and the Commission des relations du travail, particularly with respect to
renewal of their term of office and remuneration (S.Q. 2002, c. 22).
331.
332.
The Act respecting municipal courts (R.S.Q., c. C-72.01) was amended three times
during the period covered by this report:
•
The first time was in 1998 to create the office of chief judge of the municipal courts
whose functions include formulating, in collaboration with municipal judges, general
policies applicable to municipal judges and ensuring compliance with judicial ethics
(L.Q.1998, c. 30). This function was created to support a greater coherence in the
administration of municipal courts.
•
In 2000, the Act to reform the municipal territorial organization of the metropolitan
regions of Montréal, Québec and the Outaouais maintained the status of municipal
courts and their judges although some of them were abolished when the cities they
served were amalgamated (S.Q. 2000, c. 56, ss. 234 to 246).
•
Lastly in 2002, the Act to amend the Act respecting municipal courts, the Courts of
justice act and other legislative provisions (S.Q. 2002, c. 21) subjected all municipal
courts in Quebec to the Act respecting municipal courts and reviewed the structure of
administrative functions within the courts. It sets out the purpose of the Act
respecting municipal courts, which is to dispense community justice throughout
Quebec, thus making the justice system more readily accessible to citizens.
In 2002, to facilitate access to the courts and reduce backlog in the judicial system, the
National Assembly adopted the Act to reform the Code of Civil Procedure, (S.Q. 2002,
c. 7). It provides the following:
•
•
•
•
•
•
•
•
333.
Québec
a single, simplified procedure with a 180-day peremptory time limit for the
inscription of a case for proof and hearing;
introduction of case management in more complex cases;
settlement conferences in civil and commercial cases at trial and appeal levels;
introduction of mediation in small claims court;
the assistance of the clerk in the execution of small claims;
simplification of procedures for class actions;
increase in the court’s role in case management; and
the parties may establish the proceeding timetable.
The Quebec Court of Appeal found in Quebec (Minister of Justice) v. Canada (Minister
of Justice), [2003] R.J.Q. 1118 (C.A.), that some provisions of the Youth Criminal Justice
Act unjustly violated the rights of youth under sections 1 and 7 of the Canadian Charter
of Rights and Freedoms. In fact, some sections placed on youth the burden of justifying
the maintenance of a ban on the publication of their identity following a crime instead of
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imposing the burden on the prosecution of justifying lifting the ban. The Court of Appeal
affirmed that the principal of confidentiality was and remains the cornerstone of the
youth criminal justice system because it maximizes the chances of rehabilitation for
young persons found guilty of crimes.
334.
Furthermore, the Court of Appeal found that the presumption of an adult sentence being
given to youth 14 years and over for certain designated offences was contrary to section 7
and could not be justified under section 1 of the Canadian Charter. This presumption
imposed on young people the burden of proving that they should have a specific sentence
instead of an adult sentence rather than imposing on the prosecution the burden of
justifying the application of an adult sentence because of exceptional circumstances.
Thus, the Court confirmed the principle that a young person should only be given an
adult sentence under exceptional circumstances and that the prosecution has the burden of
convincing the court that such a sentence is warranted.
Article 17: Right to privacy
335.
In May 1999, the Government of Quebec adopted an action plan on the protection of
personal information. Its objective is to strengthen the protection of personal information
in all departments and agencies. This action plan lead to the adoption of various
instruments to reinforce the protection of personal information, such as the Cadre de
gestion relatif à la réalisation d'études ou de recherches nécessitant la collecte,
l'utilisation, la communication et la conservation de renseignements personnels par
sondage ou par le recours à des méthodes qualitatives [management framework for
studies or research requiring the collection, use, disclosure and conservation of personal
information through surveys or qualitative methods].
336.
In 2001, the Act to amend various legislative provisions as regards the disclosure of
confidential information to protect individuals (S.Q. 2001, c. 78) was adopted. The Act
gives precedence to the protection of life over the protection of personal information in
cases where there is an immediate danger of death, including suicide, or serious bodily
injury.
337.
Moreover, section 45 of the Act to establish a legal framework for information
technology (R.S.Q., c. C-1.1), in effect since November 1, 2001, provides that the
creation of a database of biometric characteristics and measurements must be disclosed
beforehand to the Commission d'accès à l'information, whether or not it is in service. The
Commission may make orders determining how such databases are to be set up, used,
consulted, released and retained, and how measurements or characteristics recorded for
personal identification purposes are to be archived or destroyed. The Commission may
also suspend or prohibit the bringing into service or order the destruction of such a
database, if the database is not in compliance with the orders of the Commission or
otherwise constitutes an invasion of privacy. A department or agency that wishes to use
biometric measurements must be able to prove that the collection of personal information
is necessary for carrying out its mission, in accordance with section 64 of the Act
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respecting Access to documents held by public bodies and the Protection of personal
information (R.S.Q., c. A-2.1).
338.
During the period covered, the Commission des droits de la personne et des droits de la
jeunesse (CDPDJ) issued many opinions regarding privacy on the following subjects:
access to information and the protection of personal information, pre-employment
medical examinations, psychological and psychometric tests, drug tests, disclosure of the
identity of sexual offenders, residential obligations as a condition of employment and
video surveillance in various contexts. Some of the positions put forward by the CDPDJ
were reiterated in case law.
Article 18: Freedom of thought, conscience and religion
339.
The Quebec Charter of Human Rights and Freedoms protects the religious beliefs and
practices of individuals. When certain practices of institutions or businesses regarding
working hours, dress codes, or food services infringes on religious beliefs or practices,
the Charter requires the institution or business to agree to an arrangement with the
affected people unless doing so would cause an excessive burden on the institution or
business. This concept is known as “reasonable accommodation.” The case law
established over the years has set the guidelines.
340.
In addition to the complaint process and training and mediation services offered by the
Commission des droits de la personne et des droits de la jeunesse (CDPDJ), other
measures exist to promote awareness of rights and fight against racism and
discrimination:
Québec
•
Information activities on the Charter and activities to fight racism and discrimination
prohibited by the Charter through the Support for Civic Participation Program, a
funding program for non-profit organizations;
•
Distribution of messages encouraging tolerance, solidarity and respect for diversity,
strengthening of ties with a number of ethnocultural and religious communities, and
implementation of a government surveillance network in the wake of the September
11, 2001 events;
•
Distribution of a guide on negotiations in intercultural situations that provides
reference points for managing cultural and religious diversity;
•
Organization of a symposium “Religious Diversity: Inclusion or Exclusion” by the
Ministère des Relations avec les citoyens et de l’Immigration (MRCI) in
collaboration with the Conseil des relations interculturelles (CRI) for the Action
Week against Racism 2003, which united over one hundred representatives of
religious groups, interveners and experts;
•
Preparations by the MRCI for the implementation of an expertise centre on diversity
management.
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341.
In 1995, the Commission des droits de la personne et des droits de la jeunesse (CDPDJ)
published the document Le pluralisme religieux au Québec : un défi d'éthique sociale
[Religious Pluralism in Quebec: a challenge of social ethics].
342.
In 1999, the CDPDJ received complaints concerning public prayer recital at the opening
of municipal council meetings and adopted a certified opinion on the presence of
religious symbols and rituals in public institutions. Aside from the provisions in the
Charter of Human Rights and Freedoms, this opinion is based on comparative law,
constitutional law, and on the provisions of the Covenant that guarantees the fundamental
freedoms of conscience and religion. The Commission found nothing preventing the
public expression of faith or religious affiliation—something perfectly legitimate in a
pluralist society, unless, however, individuals are forced to behave a certain way. Any
pressure that forces people, against their will, to participate in religious rituals such as
prayer, or to reveal their beliefs or non-beliefs, is a problem in terms of fundamental
freedoms. The Commission noted that the approval of religious symbols and rituals by
public institutions is also a problem of political ethics. According to the Commission,
public institutions that have abolished these symbols and rituals, or replaced them with
more neutral formulas such as a moment of silence or contemplation, are models of what
should be done.
343.
In 2000, the National Assembly of Quebec adopted the Act to amend various legislative
provisions respecting education as regards confessional matters (R.S.Q., 2000, c. 24).
This Act maintains the right for elementary students and students in the first cycle of the
secondary level to choose between religious instruction and moral instruction. Among
other things, it abolishes the confessional, Catholic or Protestant, status of schools.
344.
In Ville de Blainville v. Beauchemin, J.E. 2003-1657 (C.A.), the Court of Appeal of
Quebec found that a door-to-door bylaw requiring Jehovah’s Witnesses and any other
person who wanted to communicate a religious or political message to obtain a licence
for $100, valid only for two months and non-renewable for the ten subsequent months to
be of no force or effect. Moreover, the bylaw did not allow them to meet citizens in the
evening or on weekends. The Court found there was a serious and unjustified violation of
the right to freedom of religion for Jehovah’s Witnesses.
Article 19: Freedom of opinion and expression
345.
Québec
In 2001, the Commission des droits de la personne et des droits de la jeunesse (CDPDJ)
adopted a certified opinion on the conformity to the principles of the Charter of Human
Rights and Freedoms of some legislative and regulatory provisions governing
commercial signage. In this opinion, the Commission restates that using a language in a
commercial context is an exercise of the fundamental freedom of expression guaranteed
by the Charter and by the Covenant. The CDPDJ pointed out, however, that in
accordance with the case law of the Supreme Court of Canada and statements by the
United Nations’ Human Rights Committee, the rule of French predominance is, in the
specific context of Quebec, a reasonable limit to the exercise of that freedom. The
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Commission also felt that inasmuch as Quebec’s language legislation aims to give French
a place that satisfies the case law criteria of minimal impairment and proportionality, it
cannot be considered discriminatory in itself.
Article 22: Freedom of association
346.
In terms of group relations at work, the Labour Code (R.S.Q., c. C-27) is the main
practical example of the principles in articles 21 and 22 of the Covenant. Since 1995,
legislative amendments have been made to improve its application and functionality in
order to guarantee workers the freedom of assembly and association. In 2001, the
National Assembly of Quebec adopted the Act to amend the Labour Code, to establish
the Commission des relations du travail and to amend other legislative provisions (S.Q.
2001, c. 26) and the Act to amend the Labour Code, and the Act to amend the Labour
Code, to establish the Commission des relations du travail and to amend other legislative
provisions (S.Q. 2001, c. 49).
347.
Some of these provisions are related to the application of ILO Convention No. 87,
Freedom of Association and the Protection of the Right to Organize, 1948. New
responsibilities given to staff relations officers favour a more rapid treatment of
applications for union recognition (R.S.Q., c. C-27, art. 28). Now, staff relations officers
are able to certify associations of employees, despite employer opposition to the
description of the certification unit, if they see that the association would still have
representative character regardless of the decision the Commission des relations du
travail would make on the description of the unit. The Commission des relations du
travail began activities on November 25, 2002, in place of the Bureau du commissaire
général du travail and the Labour Court.
Article 23: Protection of the family, right to marriage and equality
between spouses
348.
On June 10, 1999, the National Assembly of Quebec adopted the Act to amend various
legislative provisions concerning de facto spouses (S.Q. 1999, c. 14). Through this Act,
all acts and regulations provide the same advantages to de facto spouses of the same sex
as to heterosexual spouses.
349.
In June 2001, the National Assembly of Quebec adopted the Act instituting civil unions
and establishing new rules of filiation (S.Q. 2002, c. 6), creating a new institution: civil
union. This was created for couples, made up of people of the same or different sexes,
who wished to publicly commit to a life together in respect of the laws and obligations
that entail. From then on, with civil union, Quebec legislation recognized three types of
conjugality: spouses joined in marriage, de facto spouses, and spouses joined civilly.
Moreover, the Act instituting civil unions and establishing new rules of filiation
established a filiation tie on spouses joined civilly and their children that grants them the
same rights and obligations as those with blood ties.
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350.
In Quebec, the debate surrounding same-sex marriage was an issue for the courts. On
September 2, 2002, the Superior Court declared legislative dispositions that prevented
same-sex marriages invalid. The effect of the Superior Court’s declarations of invalidity
was suspended for two years. The Attorney General of Quebec did not appeal from this
judgment. The Attorney General of Canada, who appealed, withdrew the appeal and
agreed that the suspension on the declarations of invalidity be lifted. The Catholic Civil
Rights League appealed, and did not withdraw. However, the Court of Appeal recently
reviewed the legal interest of the Catholic Civil Rights League to continue its appeal. The
Court found that the appeal had become theoretical and it was no longer relevant to hear
it. Since the March 19, 2004, judgment of the Court of Appeal, same-sex spouses can be
married in Quebec (Catholic Civil Rights League v. Hendricks and Leboeuf et al.).
Article 24: Rights of the child
351.
The Multisectoral Agreement on Child Victims of Sexual Abuse, Physical Abuse or
Neglect That Threatens Their Physical Health published on March 1, 2001, is one of
Quebec’s achievements. The socio-legal intervention procedure set out in the agreement
aims at guaranteeing better protection for children and providing them with the necessary
help while encouraging close collaboration between the Director of Youth Protection, the
Attorney General’s Prosecutor, the police, and the other stakeholders involved such as
schools or early childhood centres, as required. The Ministère de la Justice has decided to
have all cases of assault involving child victims handled by prosecutors specializing in
that field. A new Prosecutor’s guide: sexual offences and abuse cases is being developed
and will be given to all prosecutors involved in these cases in 2004.
352.
In keeping with the principles and objectives of the Convention on the Rights of the
Child, Quebec’s family policy, adopted in 1997, recognized that parents have the
essential role in their children’s development and the government has a supporting role.
To update these principles, Quebec’s family policy has the objective of equalizing
children’s chances, in addition to encouraging children’s development. The government’s
will to encourage the full development of children is reflected by the implementation of a
number of measures. These include, of note, early childhood education centres
throughout Quebec. More details can be found in Canada’s Second Report on the
Convention on the Rights of the Child.
Article 27: Religious, cultural and linguistic rights
353.
Relying on the fifteen principles adopted by the National Assembly in 1983 to guide
Quebec’s relations with Aboriginal people, and on the motions of 1985 and 1989
recognizing the eleven Aboriginal nations in Quebec, in 1997 the Government of Quebec
adopted guidelines entitled Partnership, Development, Achievement for dealing with the
Aboriginal nations.
354.
Since the introduction of its new guidelines, the Government of Quebec has signed a
number of agreements with Aboriginal communities or nations, as the Internet site of
Quebec’s Secrétariat aux affaires autochtones indicates
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(http://www.cex.gouv.qc.ca/w/html/w1305002.html). These agreements have taken
various forms: framework agreements, statements of understanding and mutual respect,
special agreements or sector-based agreements. The Government of Quebec is also
pursuing negotiations with the Aboriginal nations with a view to concluding
comprehensive territorial agreements.
355.
Mention should be made in particular of the following two agreements that the
Government of Quebec concluded during the period in question:
•
The first, the Agreement Concerning a New Relationship Between the Government of
Quebec and the Crees of Quebec, dubbed the Peace of the Braves by the Grand Chief
of the Grand Council of the Crees, was signed in 2002. It concerns in particular
cooperation between the Crees and Quebec in developing energy, forest and mining
resources.
•
The second, the Partnership Agreement on Economic and Community Development
in Nunavik, was concluded in 2002 with the Inuit. It deals primarily with economic
(hydroelectric power, mining and tourism) and community development.
Appendix 1
•
•
Birth rate in Quebec69
In 1996:
In 1998:
In 2000 projected:
In 2002 projected:
Maternal mortality70
11.7%
10.3%
9.7%
9.7%
Average annual rate (5 years) in 1996: 2.6/100 000 people.
•
Infant death rate by sex (per 1000)71
Year
Male Female Combined
1996
5.0
4.2
4.6
2000 projected 5.6
3.6
4.6
2002 projected 4.9
4.3
4.6
•
69
70
71
72
Death rate according to age and sex72
Institut de la statistique du Québec – April 7, 2003.
Éco-Santé Québec 2002.
Institut de la statistique du Québec – August 27, 2003.
Action Plan 2003 – 2008, Quebec’s Strategy for Preventing Suicide, working paper.
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In men, all age groups between 20 and 49 have rates above 40 per 100,000 for the
1997-1999 period. This is at least double the average rate in Quebec. Except for the 0-14
group, boys and men have rates three to six times higher than women. Suicide is the
leading cause of death in the under 45 group and leads to twice as many deaths than
traffic accidents.
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Ontario
Article 2: Equal rights and effective remedies
Ontario Human Rights Commission
356.
Of the 1,941 complaints closed during the fiscal year 2000-2001, 1,219 complaints were
mediated, settled, resolved by parties or withdrawn and the Commission made decisions
on 722 of these complaints. The growing use of mediation by people on each side of a
complaint, is the principal reason the Commission has significantly reduced its caseload.
Specially-trained mediators offer parties the option of voluntary mediation early in the
process. The mediation process is generally concluded within three to six months of
filing a complaint. This year, 51 % of the Commission cases were resolved as a result of
mediation services, as well as more traditional settlement techniques such as conciliation.
357.
During the 2000 – 2001 fiscal year, the Commission made significant strides in a number
of areas including caseload management and timelines in handling complaints. The
Commission resolved more cases than it opened. In 2000 – 2001, it opened 1,775 and
resolved 1,941 cases. As at March 31, 2001, the Commission’s active caseload was
1,781. A comparison with earlier figures of 2,745 on March 31, 1998, 2,386 on March
31, 1999 and 1,952 on March 31, 2000, demonstrates the consistent progress the
Commission continues to make in this area.
358.
In the fiscal year 2001 – 2002, 2,438 new complaints were filed at the Commission
representing a general rise in complaints across most grounds of discrimination. This
amounts to an increase of 663 cases (37%) over the total 1,775 complaints filed in the
previous fiscal year 2000 – 2001. The ground of disability and sexual orientation
accounted for the largest proportion of the increase in complaints received by the
Commission.
359.
In the fiscal year 2002 – 2003, 1,776 new complaints were filed at the Commission. The
Commission closed 1,954 cases, close to the same number as the previous year (1,932).
Its active caseload as at March 31 2003 was 2,137. The Commission continued to
maintain a caseload that is current, which means the average age of the cases is less than
12 months. For the 2002 – 2003 fiscal year, the average age of the caseload was 11.5
months, up slightly from 11 months in the previous year.
Family Initiatives
360.
Ontario
In 1999, Ontario expanded the unified Family Court so that it now covers approximately
38 per cent of the population. The Family Court provides a single point of entry for
family clients into the justice system because it has jurisdiction to hear all family matters.
All Family Courts provide voluntary family mediation services and parent information
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sessions to the public and have Family Law Information Centres. The Centres provide
clients with information and general advice to assist them in the early and non-adversarial
resolution of family disputes. In 2003, Ontario began work on a proposal for expansion
of the Family Court across the province for submission to the federal government. Plans
were also made for the expansion of Family Law Information Centres to remaining court
locations.
361.
Also in 1999, the Family Law Rules came into effect in two of the three trial courts that
hear family cases, including the unified Family Court. They emphasize the early nonadversarial resolution of cases and include plain language rules and forms to assist access
to the family court system. In 2003, Ontario's Family Rules Committee began work to
expand the application of the Family Law Rules to the remaining trial court in the
summer of 2004.
362.
In 2002, Ontario established a Child Protection Backlog Steering Committee to address
best practices in child protection cases and to respond to concerns about delays in
processing these cases through the family court system. The Committee is expected to
provide its final report to Ontario's 2004 Justice Summit.
Victims’ Bill of Rights
363.
In 1996, the Victims’ Bill of Rights came into force. This legislation sets out the
principles that apply to the treatment of victims of crime. It also amended some
provisions of the Ontario Evidence Act making it easier for child and vulnerable
witnesses to testify in civil court by:
•
•
•
•
364.
The Victims’ Bill of Rights requires that victims are to be given access to information
about:
•
•
•
•
•
•
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changing the rules related to the competency of child witnesses;
eliminating the need for corroboration of a child’s testimony;
providing accommodation measures such as screens and closed-circuit TV; and
providing options for reviews of the admissibility of hearsay evidence for child
witnesses.
the services and remedies available to victims of crime;
the provisions of the Act and of the Compensation for Victims of Crime Act;
the protection available to victims to prevent unlawful intimidation;
the progress of investigations that relate to the crime, the charges laid with respect to
the crime and, if no charges are laid, the reasons why no charges are laid;
the victim's role in the prosecution, court procedures that relate to the prosecution, the
dates and places of all significant proceedings that relate to the prosecution;
the outcome of all significant proceedings, including any proceedings on appeal, any
pretrial arrangements that are made that relate to a plea that may be entered by the
accused at trial, the interim release; and
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•
365.
in the event of conviction, the sentencing of an accused, any disposition made under
section 672.54 or 672.58 of the Criminal Code (Canada) in respect of an accused who
is found unfit to stand trial or who is found not criminally responsible on account of
mental disorder, and victims’ right under the Criminal Code (Canada) to make
representations to the court by way of a victim impact statement.
The Victims’ Bill of Rights was amended in 2001, creating the Office for Victims of
Crime, a permanent agency that provides advice to the Attorney General on issues
pertinent to the protection of victims of crime.
Environmental Bill of Rights
366.
The Environmental Bill of Rights (EBR) allows the public more access to the
Envronmental Review Tribunal to appeal the issuance or amendment of environmentally
significant instruments. Section 38 allows residents in Ontario to seek leave to appeal a
decision to implement an instrument for which notice was already provided for under the
EBR. For example, in 2001, a citizens group made use of section 38 to challenge a water
taking permit.
367.
Section 84 of the EBR also permits Ontario residents to bring an action in court, in
certain prescribed circumstances, against individuals or parties where an actual or
imminent contravention has caused or will imminently cause significant harm to a public
resource of Ontario.
Declarations of Death Act
368.
In the wake of September 11, 2001, Ontario passed the Declarations of Death Act, 2002.
The legislation allows relatives of people who have disappeared in disasters to apply to
the courts for a declaration of death.
Amendments to the Public Service Act
369.
Amendments to the Public Service Act proclaimed in June 2001 provide better protection
for vulnerable persons resident in provincially operated facilities. The amendments place
a limit on the authority of vice-chairs at a Public Service Grievance Board arbitration
hearing to reinstate employees dismissed from employment for physically or sexually
abusing a resident of a provincial facility. The amendments do not prevent a vice-chair
from reinstating an employee but do prevent a vice-chair from reinstating an employee to
a position that provides him or her with an opportunity for contact with residents of a
facility if the vice-chair finds that the employee did in fact physically or sexually abuse a
facility resident.
370.
The amendments maintain an employee’s right under the Public Service Act to be
reinstated if the vice-chair determines that dismissal from employment was not the
appropriate discipline in the circumstances. At the same time, the amendments provide a
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further measure of protection and security for vulnerable persons resident in provincially
operated facilities.
SCC Decision in Ontario v. OPSEU
371.
Ontario successfully defended an appeal made to the Supreme Court of Canada (SCC) by
a bargaining agent for provincial government employees in 2003. In the case, Ontario v.
Ontario Public Service Employees Union, the SCC determined that in certain
circumstances it is an abuse of process for a criminally convicted person to re-litigate the
issue that was at the heart of the criminal conviction in a subsequent civil proceeding.
The Supreme Court’s decision in this case protects participants in the criminal trial
process, especially victims of the criminal activity, from being required to participate or
testify in a subsequent hearing when there is no basis to doubt the merits of the criminal
conviction.
Racial Profiling
372.
In December 2002, on the eve of International Human Rights Day, the Ontario Human
Rights Commission (OHRC) announced that it would conduct an inquiry into the effects
of racial profiling on individual, families, communities and society as a whole. The
OHRC defined racial profiling as any action taken for reasons of safety, security or
public protection that relies on stereotypes about race, ethnicity, colour, ancestry, religion
or place of origin rather than reasonable suspicion, to single out an individual for greater
scrutiny or different treatment. Profiling occurs in many contexts, including law
enforcement and criminal proceedings, the enforcement of zero tolerance policies in
schools, and the actions of private security guards. Submissions were received by
telephone, mail, and through an online questionnaire on the OHRC’s website. The OHRC
received approximately 400 responses related to racial profiling. The OHRC’s report
including recommendations, entitled Paying the Price, the Human Cost of Racial
Profiling, was released in December 2003.
Community Mental Health and Addiction Treatment Services
373.
Community Mental Health and Addiction Treatment Services have signed Transfer
Payment Agreements with the Ministry of Health and Long-Term Care which contain a
commitment to operate according to the manual, including:
•
•
•
•
374.
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complying with the Human Rights Code and other legislation,
providing clients information about their rights,
ensuring clients are aware of their right to complain or appeal an agency’s decision,
and
ensuring agencies have code of ethics posted in places accessible to clients.
The agencies must establish processes and procedures that demonstrate that they are
providing equitable and fair access to services for the entire community.
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Ontario Works Act
375.
Recommendation #35 of the Hadley Inquest Jury Recommendations directed that “all
delivery agents of Ontario Works Act social assistance establish a local response for the
expedited intake of applicants who are fleeing situations of domestic violence.” In
addressing this Jury Recommendation, the government committed to providing training
for Ontario Works delivery agents on abused women's issues and related supports and
services. The Ministry of Community and Social Services committed to working with its
municipal partners to increase staff awareness and strengthen supports in place for those
fleeing situations of domestic violence.
376.
Currently, Ontario Works policies are in place to assist abused women who are applying
for, or already in receipt of, financial assistance. The Ministry is developing a Learning
Module for Ontario Works staff on abused women’s issues. The Learning Module is
intended to enhance these measures by providing delivery agents with tools and targeted
training to promote best practices and enhanced service in supporting abused women and
their children.
Article 6: Right to life
Ontario Rental Housing Tribunal
377.
The Tenant Protection Act, 1996, governs landlord and tenant matters in Ontario. The
Act contains a legislative clause that an adjudicator of the Ontario Rental Housing
Tribunal may use discretion in ordering termination of a tenancy if there is a
compassionate or other reason to retain the tenancy. Adjudicators often use this clause
when the only alternative is to create a homeless situation and there may be other
remedies available for the landlord, i.e., mediation, establishment of a payment plan, etc.
Supportive Housing for those with Mental Illness
378.
In March 1999, the Ontario government announced a provincial homelessness strategy
that included $45 million in each of the next three years for the Ministry of Health and
Long-Term care to provide supportive housing for people with serious mental illness.
The initiative is referred to as the Mental Health Homelessness Initiative, Phase 1 and
Phase 2.
379.
In October 1999, $24 million was awarded for Phase 1 for 962 units of supportive
housing in Toronto, Hamilton and Ottawa. These three cities were targeted for Phase 1 as
they had the highest emergency hostel expenditures in 1998.
380.
Of the 962 housing units, 762 are in Toronto, 100 in Ottawa and 100 in Hamilton. 739
units are through lease agreements (apartments) and 223 units are through property
purchases and renovations.
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381.
Phase 2 of the initiative addresses the supportive housing needs of homeless seriously
mental ill persons throughout all regions of the province, including needs related to
Provincial Psychiatric Hospital restructuring. Phase 2 funding of $67.6 million was
announced in April 2001, for about 2600 units.
382.
There are about 3,400 units in place, with 200 remaining units under development to be
completed this year. At the end of the implementation phase, this initiative (phase 1 and
phase 2) will create 3,600 units of supportive housing across the province.
383.
A snap-shot survey of Phase 1 has been completed and demonstrates very positive results
for targeting the correct homeless population and for relatively low turnover which
reinforces the idea that housing with supports can stabilize very difficult to house
populations. Also, an independent research project has studied Phase 1 and provides very
favourable results for the initiative.
Ipperwash Incident
384.
On September 6, 1995, Dudley George was shot by a member of the Ontario Provincial
Police (OPP) during a protest at Ipperwash Provincial Park. He later died. A number of
criminal proceedings resulted, including one conviction against an OPP officer and one
conviction against an occupier.
385.
A civil action was brought against the Crown and others. The action was settled on
October 1, 2003.
386.
On November 12, 2003, the Ontario Attorney General announced the appointment of
Justice Sidney Linden to lead an independent, public inquiry into the events surrounding
the death of Dudley George.
387.
In conducting the inquiry, established under section 2 of the Public Inquiries Act, Justice
Linden has a broad mandate to:
•
•
388.
inquire into and report on events surrounding the death of Dudley George; and
make recommendations directed to the avoidance of violence in similar
circumstances.
The government has indicated that it would study the report with a view of taking further
steps to curb incidents of racial profiling.
Suicide in Aboriginal communities
389.
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In Ontario, the issue of the high rate of suicide among aboriginal youth is being addressed
through the Intergovernmental Committee on Youth Suicide, which is comprised of the
federal and provincial governments working with First Nation leaders. The committee
was established in the spring of 2000, to promote positive change in northern First
Nations communities so that they become safer and healthier places for children, youth
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and families to live. Strategies include supporting community capacity building,
improving system responsiveness, better service coordination, promoting innovation,
evaluating effectiveness and sharing lessons learned.
390.
There were 204 suicides in Nishnawbe-Aski communities between 1986 and August
2000, with most of the individuals under 25 years of age. The annual number of suicides
has diminished over each of the past three years by almost half.
Article 7: Protection against torture
Patient Restraints Minimization Act
391.
On June 27, 2001 the government passed the Patient Restraints Minimization Act. The
Act received Royal Assent on June 29, 2001.
392.
The intent of the Act is to minimize the use of restraints and to encourage hospitals and
other health care facilities to use alternative methods to prevent serious bodily harm by a
patient to himself or herself or others. Under the Act, a hospital or prescribed facility
may not physically, mechanically or chemically restrain a patient, or confine a patient, or
use a monitoring device on a patient unless it is necessary to prevent serious bodily harm
to him or her or to another person. The use of the restraint must meet other criteria
prescribed by regulation, and be ordered by a physician or a person specified by
regulation. The Act requires hospitals and other prescribed facilities to establish and
follow policies, as prescribed in regulation, regarding restraints.
393.
On April 1, 2003, regulations governing the use of physical restraints came into effect for
children’s residences licensed under the Child and Family Services Act (CFSA) and
residences funded under the Developmental Services Act (DSA) that provide group living
supports to adults with developmental disabilities.
Long-Term Care System
394.
In 2004, the government embarked on a comprehensive plan to reform the province’s
long-term care system. In December 2003, the Minister of Health and Long-Term Care
appointed his Parliamentary Assistant to undertake a top-to-bottom review of the longterm care sector and to recommend practical actions to strengthen long-term care
services.
395.
The Ministry of Health and Long-Term Care took immediate actions to raise care
standards and protection for long-term care residents. As of January 1, 2004, all annual
inspections of long-term care facilities are unannounced so that the ministry can identify
and act on incidents of sub-standard care, neglect or abuse more effectively. Complaint
investigations are already unannounced.
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396.
The ministry also created a toll-free number so that long-term care residents and their
families have one easy access point to seek information or lodge complaints about a longterm care facility.
397.
Ministry officials are taking a number of additional medium and long-term steps to
continually improve the safety and quality of long-term care services. These efforts focus
on four main areas:
•
•
•
•
better protection for residents, improved ministry inspection and enforcement,
improved accountability and performance management,
better public reporting and greater transparency, and
long-term strategies to improve the facility system’s capacity to deliver high quality
care.
Changes to Developmental Services Act
398.
In November 2001, as part of the Ministry of Community and Social Services’
Developmental Services Multi-Year Plan, the Homes for Retarded Persons Repeal Act,
2001 was proclaimed, and the Developmental Services Act and its regulations were
updated to remove outdated and insensitive language and to maintain important health
and safety provisions formerly contained in the Homes for Retarded Persons Act.
Amendments were also made to more than 30 statutes to reflect the repeal and resulting
changes in language.
Substitute Decisions Act
399.
The Substitute Decisions Act, 1992, protects mentally incapable people against degrading
treatment by prohibiting the use of electric shock as aversive therapy. It also does not
allow a substitute decision maker to consent to sterilization that is not medically required.
Article 9: Right to liberty and security of person
400.
Section 84.1 of the Highway Traffic Act is an example of how the Ministry of
Transportation (MTO) ensures that its law does not violate the right to life, liberty and
security of the person protected by section 7 of the Canadian Charter of Rights and
Freedoms. Section 84.1, which was added to the Highway Traffic Act by the
Comprehensive Road Safety Act, came into force on July 3, 1997. Section 84.1(1) states
that the operator of a commercial motor vehicle with its wheels becoming detached while
on the highway is guilty of an offence. According to section 84.1(2), due diligence is not
a defence to this charge, thereby making it an “absolute liability” offence. To ensure that
the absolute liability offence provision does not violate the liberty of an offender, only
fines are awarded upon conviction. Section 84.1(4) prohibits an offender being
imprisoned or subject to a probation order.
401.
A constitutional challenge to the validity of making the offence in section 84.1 “absolute
liability”, on the basis that it attracts potentially high penalties, social stigma and denies
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the right to a fair trial, was launched by a number of transport carriers. On November 14,
2003, the Ontario Court of Appeal ruled that section 84.1 does not violate the Charter.
Article 10: Treatment of persons deprived of liberty
Institutionalized Adult Offenders
402.
The Ministry of Community Safety and Correctional Services has embarked on a review
of the offender misconduct process to ensure that penalties that remove an offender’s
earned remission are fair and follow appropriate procedures.
403.
In 2003, Correctional Services administrators underwent extensive training in the
misconduct process to ensure that decisions that impact on the liberty of detained persons
are made in a fair and equitable manner.
404.
Offenders have the right to apply to the courts for a review of their detention. Sentenced
offenders also have the right to appeal their sentence. Offenders who are charged with
internal misconduct have the right to appeal any sentence that impacts on their legislated
earned remission.
405.
Offenders may also contact the Office of the Ombudsman of Ontario or the Ontario
Human Rights Commission to investigate their concerns. There is no current data
available at this time to determine how often these recourses are exercised.
Young Persons
406.
Currently, Ontario does not contract out to halfway houses. However, the Ministry of
Community Safety and Correctional Services has contracts with open detention and open
custody residences and secure detention and secure custody facilities. Current policy and
procedures are in place to ensure the rights of youth in these facilities are not violated.
407.
A “Rights and Responsibilities” booklet is made available to young persons whether they
are on community supervision or in a custody setting. This booklet helps them to
understand their rights and responsibilities under the Youth Criminal Justice Act, the
federal legislation that came into effect on April 1, 2003, as it pertains to the youth
criminal justice system.
408.
Training for new Correctional Services staff includes an introduction and overview on the
rights of the child as expressed in the Convention on the Rights of the Child.
409.
Young persons have the right to apply to the courts for a review of their detention.
Sentenced young persons also have the right to appeal their sentence and to ask for a
review of their sentence by an independent group called the Custody Review Board.
410.
Young persons may also contact the Office of the Ombudsman of Ontario, the Office of
Child and Family Service Advocacy of Ontario or the Ontario Human Rights
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Commission to investigate their concerns. In addition, the Office of the Ombudsman and
the Child Advocate’s Office are permitted to have access to the facilities where youth are
held, in addition to any record related to a young person in the course of conducting an
investigation. The youth under community supervision or in a custodial setting also have
the right to initiate contact with these agencies. Young persons are protected under the
Canadian Charter of Rights and Freedoms. There is no current data available at this time
to determine how often these recourses are exercised.
411.
The annual reports of the Ombudsman describe all complaints and enquiries received by
that Office and summarize the results of investigations by the Ombudsman. Annual
Reports by the Ombudsman Ontario are available online at
http://www.ombudsman.on.ca/ann_reports.asp.
Adult Community Services
412.
In Ontario, the courts make a determination as to who is placed under community
supervision (i.e., probation or conditional sentence) and what conditions they must abide
by.
413.
The Ontario Parole and Earned Release Board (OPERB) has the legislative authority to
determine who is eligible for parole and temporary absences from a correctional facility
for over 72 hours and what conditions the offenders must abide by.
414.
It is the mandate of Probation and Parole Services to ensure that the offenders placed
under community supervision are assessed at intake for risk/needs and supervised in
accordance with their level of risk under the Ministry’s Service Delivery model.
415.
If offenders feel they cannot comply with their conditions or feel they are not being
treated fairly, they have the recourse to the courts for variation of their order, OPERB, or
the Area Manager of the supervising probation office. They may also contact the Office
of the Ombudsman of Ontario or the Ontario Human Rights Commission to investigate
their concerns.
Article 14: Fair trial rights
Youth Criminal Justice
416.
Ontario
In 1999, Ontario Youth Criminal Justice Committees began operation in six locations.
They expanded in August 2001 to 22 sites. These Committees are one form of alternative
measure and are mandated to deal with minor offences committed by young persons. The
Committees, which include representatives from community organizations as well as
criminal justice sector partners, focus on rehabilitation and reintegration, while holding
young persons accountable for their crime. They provide an effective and timely response
both to the offender and community, offer direct participation in resolution to victims of
crime and contribute to the efficient operation of the courts.
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417.
Since the proclamation of the Youth Criminal Justice Act, the federal legislation
governing the conduct of proceedings against young offenders, Ontario has developed
policy and training materials for Crown counsel. Prior to the Act coming into force in
April 2003, Ontario offered a two-day intensive educational program to Crown counsel.
Ontario Rental Housing Tribunal
418.
The establishment of the Ontario Rental Housing Tribunal (website:
http://www.orht.gov.on.ca) through passage of the Tenant Protection Act, 1996 has
offered greater access to justice to both landlords and tenants in Ontario and has provided
them with the means to have a quick result to their judicial disputes. It has also taken
approximately 75,000 applications per year out of the judicial system and had them
resolved through an administrative tribunal, which is both quicker and less costly. Under
the Tenant Protection Act, parties can appeal to Divisional Court only on a question of
law. Appeal rates for Tribunal decisions are very low, averaging approximately one to
two per cent of all Tribunal decisions.
Elimination of the Zero Tolerance Policy for Welfare Fraud
419.
In December 2003, the government of Ontario revoked the policy regarding the
permanent and temporary periods of ineligibility for social assistance for those convicted
of welfare fraud. People who are convicted of welfare fraud may now receive social
assistance to cover their basic needs and will no longer face life-threatening
circumstances. Ontario has determined that people who commit welfare fraud should be
dealt with by the criminal justice system.
Tribunal Powers
420.
In McKinnon v. The Queen, released December 23, 2003, the Divisional Court affirmed
the Ontario Human Rights Tribunal's jurisdiction to remain seized of a matter for the
purpose of monitoring the implementation of its orders. It also held that once the Tribunal
has found non-compliance with one of its orders, a complainant is not required to start a
fresh complaint at the Commission. Rather, the Tribunal can ensure the delivery of an
effective remedy by hearing evidence about implementation.
Article 18: Freedom of thought, conscience and religion
421.
Ontario
On April 3, 1995 the Substitute Decisions Act, 1992 (SDA) was proclaimed in force.
The SDA governs what may happen when someone is not mentally capable of making
certain decisions about their own property or personal care. Generally, the law is
designed to give individuals more control over what happens to their lives if they become
incapable of making their own decisions and to respect people's life choices, expressed
before they become mentally incapable, and take into account their wishes. The SDA
ensures that mentally incapable people will be treated in a manner consistent with their
beliefs, religion and culture.
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Article 22: Freedom of association
422.
In June 1994, the government passed the Agricultural Labour Relations Act (ALRA) to
allow agricultural workers to unionize. Prior to the passage of the ALRA, workers in
agriculture had been excluded from organizing and collective bargaining under a
statutory labour relations regime. The ALRA extended the statutory right to organize to
these workers, but prohibited strikes in favour of an interest arbitration regime as the
dispute resolution mechanism.
423.
The ALRA was repealed by the Labour Relations and Employment Statute Law
Amendment Act, 1995, which restored the exclusion of agricultural workers from
provincial labour relations legislation. The reasons given for the restoration included the
unique characteristics of farming and the economic vulnerability of Ontario’s agricultural
sector. With the repeal of the ALRA, unions that had been certified under the ALRA
were “decertified”.
424.
The United Food and Commercial Workers’ union (UFCW) challenged the repeal of the
ALRA, alleging violation of the freedom of association and of the equal protection of the
law guaranteed under the Canadian Charter of Rights and Freedoms. The UFCW
pursued this Charter challenge to the Supreme Court of Canada (SCC), where the case
was heard in February 2001.
425.
On December 20, 2001, in Dunmore v. Ontario (Attorney General), the SCC declared
that the exclusion of agricultural workers from the Labour Relations Act, 1995 (LRA)
was unconstitutional in the absence of any other statutory protection of their freedom to
associate. The Court held that, at a minimum, a statutory freedom to organize must be
extended to agricultural workers along with protection judged essential to its meaningful
exercise. (The Court did not rule on the UFCW’s arguments that the repeal of the ALRA
allegedly violated the right to equal protection of the law under the Charter.)
426.
The SCC suspended its decision for 18 months (until June 19, 2003) to allow Ontario to
develop a legislative response.
427.
In response to the Dunmore decision, the government introduced on October 7, 2002 Bill
187, the Agricultural Employees Protection Act, 2002 (AEPA), which was passed by the
Legislature and received Royal Assent on November 19, 2002. The AEPA was
proclaimed into force on June 17, 2003.
428.
Recognizing the unique characteristics of agricultural production, the AEPA provides for
the following rights of agricultural employees:
•
•
•
•
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to form or join an employees’ association,
to participate in its lawful activities,
to assemble,
to make representations to their employer, and
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•
to protect against interference, coercion or discrimination in the exercise of their
rights.
Article 23: Protection of the family, right to marriage and equality
between spouses
429.
The Family Responsibility and Support Arrears Enforcement Act, 1996, expanded the
tools available in Ontario to enforce support orders. The Family Responsibility Office,
which enforces support provisions in court orders and domestic contracts, can report
defaulting payors to the credit bureau, suspend defaulting payors’ drivers’ licences,
garnish joint bank accounts, and even obtain court orders against third parties who shelter
assets on behalf of a defaulting payor.
Article 24: Rights of the child
Early Childhood Development Initiative
430.
The Ministry of Health and Long-Term Care has funded 17 projects as part of Ontario’s
Early Childhood Development Initiative to develop services for substance-involved
pregnant and parenting women and their children under six years of age. The 17 different
sites across the province are engaged in a range of activities from direct treatment
services to needs assessments. The scope of Early Childhood Development Addictions
Project activities include: substance abuse treatment; ancillary programming such as
childcare, life skills, parenting skills, improved client access and linkages to health care,
housing and social services and some public education regarding fetal alcohol
syndrome/fetal alcohol effects (FAS/FAE).
Article 26: Equality before the law
431.
The Ontarians with Disabilities Act (ODA), 2001, was passed in December 2001. The
ODA requires that the provincial government and all of Ontario’s municipalities, school
boards, hospitals, public transportation providers, colleges and universities prepare
annual accessibility plans for the removal of physical, attitudinal and policy barriers in
order to ensure greater accessibility and opportunities to all citizens of the province.
432.
The Act established the Minister’s Accessibility Advisory Council of Ontario to advise
the Minister of Citizenship and Immigration on accessibility and effective
implementation of the ODA.
433.
The Act also established the Accessibility Directorate of Ontario to support and manage
the implementation of the ODA and to support and review the progress of organizations
with legal obligations under the ODA. The Accessibility Directorate of Ontario also
works in partnership with organizations, businesses and interested individuals to develop
voluntary accessibility standards and provides public education and community-based
accessibility programs to raise awareness and create a greater understanding of the need
for accessibility and inclusion throughout the Province.
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Article 27: Religious, cultural and linguistic rights
434.
French-language colleges of applied arts and technology have been established by
regulations made under the Ministry of Colleges and Universities Act (now the Ministry
of Training, Colleges and Universities Act). At present, there are two active Frenchlanguage colleges of applied arts and technology in Ontario: Collège Boréal (established
in 1993) and La Cité Collégiale (established in 1989).
435.
The Ministry of Community and Social Services (MCSS) is responsible for the Violence
Against Women Program that includes province-wide crisis telephone counselling to
provide women with information and support 24 hours a day, 365 days of the year. To
further the objectives of the French Language Services Act, MCSS, as of April 1, 2003,
has provided funding to enhance existing Francophone crisis line services to provide
province-wide coverage 24 hours a day, 365 days of the year. Two Francophone crisis
lines are fully operational in both southern and northern Ontario.
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Manitoba
Article 2: Equal rights and effective remedies
436.
The Manitoba Human Rights Commission continued to administer and enforce The
Human Rights Code of Manitoba (http://web2.gov.mb.ca/laws/statutes/ccsm/h175e.php)
and to educate and promote understanding of the civil and legal rights of Manitobans.
437.
In 2003, The Inter-jurisdictional Support Orders Act
(http://web2.gov.mb.ca/laws/statutes/ccsm/i060e.php) came into effect. Under this Act
which replaces the former Reciprocal Enforcement of Maintenance Orders Act,
individuals can continue to seek family support orders and variations of these orders in
other Canadian jurisdictions and in foreign jurisdictions by filing an application in
Manitoba. The process has been simplified so individuals can proceed without incurring
the cost of legal counsel. Manitoba has established reciprocal procedures with 26 foreign
jurisdictions.
438.
The Immigrant Integration Program provides funding to support paralegal services for
refugee claimants and provides liaison with legal aid services, settlement and social
supports and access to due process in refugee determination and other immigration
matters to ensure rights are protected.
Article 3: Equal rights of men and women
439.
The Manitoba Women’s Directorate continued to represent women’s interests by
informing government of the impact of its programs and policies, identifying and
communicating emerging issues and working to ensure the inclusion of women’s
priorities in Manitoba public policy. For further information, see
http://www.gov.mb.ca/wd/.
440.
On September 27, 2002, the “See Jane Run……Women in Politics – Make a Difference”
Conference, organized by Manitoba women from various political backgrounds, was held
to encourage women to participate in electoral politics.
441.
Planning to replace the existing Portage Correctional Centre for women continues. A
contemporary facility will provide programs specifically designed for the needs of
women, with recreation and living environment at least equal to the predominantly maleoriented facilities.
442.
As an example of employment equity, in the Corrections Division of Manitoba Justice
employment equity objectives have provided an opportunity for women to be
successfully employed at all levels of the Corrections Division. The increasing number
of women from entry level to senior management positions has positively changed the
face of corrections.
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443.
The following are some examples of measures taken during the reporting period to ensure
equal rights of men and women in employment:
•
•
•
beginning in 1997, grant funding was provided to child care facilities to establish
flexible child care arrangements to assist parents who work non-traditional hours;
in 2000, fee subsidies to families looking for work were enhanced;
in 2002, as part of Manitoba’s Five-Year Plan for Child Care in Manitoba (see
below), child care fees were frozen, and a commitment was made to reduce the daily
non-subsidized fee of $2.40 per child by the end of the plan.
444.
In September 1999, The Domestic Violence and Stalking Prevention, Protection and
Compensation Act (http://web2.gov.mb.ca/laws/statutes/ccsm/d093e.php) was
implemented with a wide range of civil remedies for people subject to stalking and
domestic violence. Amendments introduced in 2003 (passed but not yet proclaimed)
extend remedies to situations where there has not been cohabitation and situations where
there is a likelihood of violent or stalking behaviour (rather than a need for immediate
protection).
445.
Manitoba has a variety of initiatives which address the real and perceived barriers to
ending violence in the family. These include:
•
•
•
•
•
•
•
•
•
Residential Second Stage Housing programs;
a Native Women’s Transition Centre;
counselling programs;
an annual media campaign launched in 1998;
education for all government employees;
enhanced services through women’s crisis shelters;
improved outreach capacity, especially in Northern and rural Manitoba;
expanded services through women’s resource centres, including specialized services
to francophone women; and
the Men’s Resource Centre in Winnipeg, one of only three in Canada, provides
counselling, outreach services and a peer assistance program to help men deal with
various issues that affect their lives including relationships and intimacy, abusive
behaviours, childhood sexual, physical and emotional abuse, parenting and separation
and divorce, etc. The Centre also offers a toll-free telephone number for men living
in outlying communities or in rural Manitoba.
446.
All family violence prevention and intervention services began measuring outcomes for
families who use these services, rather than simply program outputs, to assess the
efficacy and relevance of the services and to facilitate improved programming.
447.
Additional information on measures taken to promote equal rights of men and women
can be found in the Manitoba section of Canada’s Fifth Report on the Convention on the
Elimination of all Forms of Discrimination Against Women
(http://www.pch.gc.ca/progs/pdp-hrp/docs/cedaw_e.cfm).
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Article 6: Right to life
448.
An Aboriginal Suicide Prevention Committee is being formalized to address the high rate
of suicide in Aboriginal communities. Members include representatives from Manitoba
Keewatinowi Okimakanak, Dakota Ojibway Tribal Council, Klinic Community Health
Centre, Health Canada and the Manitoba departments of Health, Family Services and
Housing, Aboriginal and Northern Affairs, and Education and Youth.
449.
The “Healthy Child Manitoba FAS Strategy”, put in place to address the high rate of
foetal alcohol syndrome in Aboriginal communities, consists of: “Stop FAS”; support in
the classroom for students with FAS; diagnostic services, treatment, outreach and
support; information and education for educators and caregivers; and women's addiction
services. For more information, see www.gov.mb.ca/hcm/programs/fas/index.html.
450.
“Stop FAS” provides effective, supports for high-risk mothers who have used alcohol or
drugs heavily during pregnancy to help prevent the birth of children affected by alcohol
and drug abuse. The program began operating in Winnipeg, and, in December 2000,
about $270,000 was allocated to expand the program to the Northern Manitoba
communities of Thompson and The Pas.
451.
After 3 years in the Program:
•
•
•
•
•
•
•
84% are no longer at risk of having a child with FAS; they have stopped using
alcohol or drugs, or are using birth control;
65% have completed an addictions treatment program;
49% have stopped using alcohol, more than half for 6 months or more;
49% use birth control;
28% have completed an educational or training program;
63% of target children are living with their own families;
100% of the target children are fully immunized.
452.
Through the “Canada Northwest FASD partnership”, the governments of Manitoba,
Alberta, Saskatchewan, British Columbia, Nunavut, Northwest Territories and Yukon,
are working together to prevent foetal alcohol syndrome and to raise public awareness of
the impact of FAS and related disorders. The partners share best practices, expertise and
resource materials in the development of joint strategies and initiatives on FAS. For
more information, see http://www.faspartnership.ca/page.cfm?pg=index.
453.
Manitoba Health works directly with the Regional Health Authorities, other health care
professionals, and government and community agencies, in the following areas:
•
Manitoba
Diagnosis:
The Winnipeg Regional Health Authority maintains the Clinic for Drug and
Alcohol Exposed Children at the Winnipeg Children's Hospital. Manitoba Health
assists with the planning of training, mobile clinics and other consultative services
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between Clinic staff and other regional health authorities, and communities who
require FAS diagnosis.
Burntwood Regional Health Authority maintains the Thompson FAS Support
Team and Tele-Diagnostic Clinic in Northern Manitoba, which links with the
Winnipeg Clinic to provide FAS diagnosis at Thompson General Hospital.
Outreach services to assist families to access diagnostic services and plan for the
post-diagnostic services are also provided.
•
High-Risk Women:
Manitoba addictions treatment programs provide priority admission for pregnant
women to reduce the impact of alcohol on the foetus. Women in residential
treatment also receive alcohol and pregnancy information from a physician.
The “Study on the Needs of Pregnant Addicted Women” produced over 40
recommendations to reduce barriers for women with addictions across systems.
Currently, Manitoba Health chairs an implementation committee that is working
closely with key stakeholders to make positive changes for addicted women in
accessing and using treatment and support services.
•
Education and Awareness:
Child Health provides presentations, training, and community consultation to
health, education, social service and justice professionals and community
members on FAS. Emphasis is on prevention and intervention initiatives are
highlighted and providing professionals with concrete strategies for working with
FAS children and adults.
FAS/E information is provided in the curricula for both physicians and nurses.
Health Canada, in collaboration with Manitoba Health and other provincial and
territorial governments, has launched a new FAS poster and pamphlet called
"Pregnant? No Alcohol." The successful collaboration has sparked preliminary
discussions on future national collaborations in the area of FAS.
Funding is provided to the Addictions Foundation of Manitoba to provide training
to community and professional groups including community health nurses; care
givers; “Stop FAS” mentors; and parents.
Support is provided to the FAS Resource Centre at the Alcoholism Foundation of
Manitoba. The Resource Centre provides library materials and resource support
across the province on FAS and has one of the largest collections of FAS
resources in Canada.
Article 7: Protection against torture
454.
A new Correctional Services Act (http://web2.gov.mb.ca/laws/statutes/ccsm/c230e.php)
came into effect October 1, 1999. The Act states "discipline and restrictions imposed on
offenders otherwise than by a court shall be applied by a fair process and with lawful
authority". The initial approach to listed disciplinary offences is to consider alternative
resolution measures and, failing that, there is a hearing by a discipline committee at
which the offender may be represented. If found responsible, the offender is subject to a
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range of sanctions from a warning to loss of some sentence remission time, segregation
or temporary loss of some privileges. All sanctions can be appealed under the Act.
455.
On May 1, 2001, The Protection for Persons in Care Act
(http://web2.gov.mb.ca/laws/statutes/ccsm/p144e.php) came into effect. The Act
imposes a duty on health facilities to protect patients from abuse and to maintain a
reasonable level of safety for them. Persons who have been found to be ‘not criminally
responsible’ for the commission of an offence due to mental disorder, and who are
subsequently detained in a hospital, are also covered by this Act. The Act imposes a duty
to report, and to receive reports of, abuse. Abuse means “mistreatment, whether physical,
sexual, mental, emotional, financial, or a combination of any of them, that is reasonably
likely to cause death or that causes or is reasonably likely to cause serious physical or
psychological harm to a person, or significant loss to that person’s property”. The Act
provides a mechanism for complaint, requires the investigation of complaints and
requires compliance with subsequent ministerial orders. The Protection for Persons in
Care Office provides ongoing education and training to help facilities and regional health
authorities with respect to policies and procedures required to comply with the Act.
Since May 2001, some 1500 people have received education and training.
456.
Manitoba has set standards for foster parents and staffed residential services that promote
positive behaviour management practices. Caregivers are not permitted to use corporal
punishment or other forms of physical discipline such as spanking, hitting, slapping or
shaking. As of April 29, 2003 these standards have been extended to cover those wishing
to adopt a child.
457.
The Immigrant Integration Program provides funding, coordination and professional
development to assist immigrant-serving agencies to gain sensitivity and skills to assist
victims of torture and to provide services to the public. The Program also provides
consultation on service development for individuals and families affected by war and
violence.
Article 8: Protection against slavery and forced labour
458.
In December 2002, the Healthy Child Committee of Cabinet launched the Manitoba
Strategy on child and youth sexual exploitation. A Multi-Jurisdictional Implementation
Committee, with representation from across government and from external agencies was
established to implement the Manitoba Strategy, and a provincial Sexually Exploited
Youth Coordinator was hired on January 6, 2003.
459.
The Manitoba Strategy offers a range of prevention and intervention strategies:
•
•
Manitoba
the Community Outreach Project has increased the number of outreach workers from
one to three full time positions. Outreach workers provide active and immediate
outreach to children in care who are on the run;
funding has been provided to establish a six bed residential “safe transition home” in
Winnipeg for sexually exploited females between the ages of 13 and 17;
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•
•
•
Manitoba Justice has developed specialized child victim support services for sexually
exploited youth who are willing to testify in the prosecution of prostitution-related
charges;
education and awareness programs are being developed for professionals, front line
workers, citizen groups, parents and youth around the province. “Partnerships
Toward Action”, a one-day Forum on Child Sexual Exploitation held March 4, 2003
in Winnipeg, was attended by 150 stakeholders;
learning materials on the prevention of child sexual exploitation are being developed
for use in schools across Manitoba.
For further information on the Manitoba Strategy, see
http://www.gov.mb.ca/fs/childfam/strategy_on_sexual_exploitation.html.
460.
In the fall of 2003, Manitoba Justice appointed a specialized prosecutor to act as a Child
Exploitation Case Coordinator, to coordinate the province's prosecutorial response to
sexual exploitation of children, particularly where internet-based.
461.
The Immigration and Multiculturalism Division of Manitoba Labour and Immigration has
participated in a local working group to raise awareness of issues related to trafficking
and vulnerability of immigrant workers and promotes access to information and
orientation to Manitoba employment standards.
Article 9: Right to liberty and security of person
462.
In October 1996, The Vulnerable Persons Living with a Mental Disability Act
(http://web2.gov.mb.ca/laws/statutes/ccsm/v090e.php), described in Canada’s Fourth
Report, came into force. The Act is designed to promote and protect the rights of adults
living with a mental disability who require assistance in meeting their basic needs or
making decisions, and recognizes these Manitobans as ‘vulnerable persons’. The Act
establishes the position of Vulnerable Persons Commissioner to administer the provisions
dealing with the substitute decision-making. The Commissioner is subject to a number of
checks and balances, including the right to appeal the Commissioner’s decisions to court.
For further information, see http://www.gov.mb.ca/fs/pwd/vpo.html.
Article 10: Treatment of persons deprived of liberty
463.
The new Correctional Services Act resulted in a re-draft of existing policies and
development of new policies which support an environment that promotes treating
inmates with humanity and with respect for their inherent dignity as human beings. The
“Standards of Professional Conduct”, a Corrections Divisional policy jointly developed
by management and employees and established in September 1999, states "We treat
offenders fairly, objectively and with due concern for their health and safety." The
Manitoba Ombudsman receives copies of all policies of youth and correctional facilities.
The Correctional Services Act contains an internal complaint process for inmates; an
independent complaint mechanism is available through the Manitoba Ombudsman, who
has a wide jurisdiction to investigate allegations of mistreatment by inmates.
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464.
The use of force is controlled by the Correctional Services Act. Care is exercised to
protect the heath and safety of all and the security of the facility. Authorized restraints
are set out in the regulations under the Act. Correctional Emergency Response Units
consisting of specialized and intensively trained staff members intervene at disturbances
or serious threats. Only authorized staff may use OC pepper spray, other authorized
equipment, restraint chairs and Electro-Muscular Disruption (Taser) technology, and use
is controlled by policy. Other specialized units include Incident Response Teams and the
Female Cell Extraction Team and policies provide direction to these units.
465.
A large percentage of the correctional facility population are Aboriginal people who are a
high suicide risk group in the community, and are at an even higher risk due to their
incarceration. All facility staff are trained in suicide prevention through the ASIST
standard program. All staff members are expected to assist in the prevention of suicide.
Certified trainers deliver the program and are part of facility suicide teams of suicide risk
managers, case managers, nurses and mental health staff that do follow up and contribute
to the process of reducing risk of suicide. Standardized risk estimations are completed,
standardized observation reports and records are documented and direction is provided
through policies.
466.
In November 1999, the Manitoba government appointed the Aboriginal Justice
Implementation Commission. The Commission was charged with reviewing those
recommendations made in the 1991 Report of the Aboriginal Justice Inquiry of Manitoba
for which the Province of Manitoba is responsible and accountable, and with proposing
methods of implementing those recommendations. The Commission’s final report,
submitted June 29, 2001, priorized issues of family and child welfare and the Aboriginal
Justice Inquiry – Child Welfare Initiative (discussed below) was implemented to address
the Commission’s recommendations in this area. For additional information on the
Commission’s recommendations, see http://www.ajic.mb.ca/.
467.
The devolution of delivery of Probation Services by First Nations has been a long-term
objective of the Manitoba government that has involved ongoing planning, training and
program requirement development. It is expected that restorative justice programs,
providing increased options for mediation, community forums and healing programs that
are particularly relevant in the aboriginal context, will be available in areas where
offenders are predominantly First Nations people.
Article 14: Fair trial rights
468.
The Provincial Court Act (http://web2.gov.mb.ca/laws/statutes/ccsm/c275e.php) was
amended in 2001 to establish a Judicial Compensation Committee to make
recommendations to the Manitoba Legislative Assembly respecting the salaries of
provincially appointed judges, thereby assuring them a greater degree of independence.
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Article 17: Right to privacy
469.
On December 11, 1997, The Personal Health Information Act
(http://web2.gov.mb.ca/laws/statutes/ccsm/p033-5e.php) came into effect. Under the
Act, Manitoba “public bodies” (Manitoba provincial government departments and
agencies, municipalities, etc.) and the Manitoba public and private health care sector
(regional health authorities, health care professionals, hospitals, personal care homes,
etc.) are trustees of personal health information. The Act provides an individual with a
right of access (subject to limited and specific exceptions) to his or her personal health
information maintained by a trustee. The Act also controls the collection, use, disclosure,
retention and destruction of personal health information by trustees and requires trustees
to protect personal health information and the privacy of the individuals it is about.
470.
On May 4, 1998, The Freedom of Information and Protection of Privacy Act
(http://web2.gov.mb.ca/laws/statutes/ccsm/f175e.php) came into effect. In addition to
providing a general right of access to records maintained by Manitoba government
departments, agencies and other “public bodies”, the Act provides an individual with a
right of access (subject to limited and specific exceptions) to his or her personal
information maintained by Manitoba government departments, agencies and other public
bodies. The Act also controls the collection, use, disclosure, retention and destruction of
personal information by public bodies and requires public bodies to protect personal
information and the privacy of the individuals it is about. This Act does not apply to the
private sector.
471.
Both Acts reflect the fair information principles in the Organization for Economic
Cooperation and Development’s Guidelines on the Protection of Privacy and
Transborder Flow of Personal Data.
Article 23: Protection of the family, right to marriage and equality
between spouses
472.
In November 2002, the Family Division of the Manitoba Court of Queen’s Bench
introduced universal case conferencing (excluding child protection cases), requiring a
semi-formal conference with parties and counsel before a Judge to seek amicable
resolution of family litigation where possible. This ensures that matters proceed
promptly and that the parties have the benefit of judicial advice about the merits of their
case before incurring extensive legal costs.
473.
In 2001, the Comprehensive Co-mediation Program (introduced in 1998 as a pilot
project) recommenced operation. A lawyer/mediator from Manitoba Justice works with a
family relations counsellor from Family Conciliation to provide comprehensive
mediation on all issues arising on separation or divorce.
474.
The Maintenance Enforcement Program established under The Family Maintenance Act
(http://web2.gov.mb.ca/laws/statutes/ccsm/f020e.php) was enhanced by legislative
amendments in 2001 and 2003. First stage amendments included provisions to pierce the
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corporate veil, preserve assets, attach lottery winnings, and register support orders in the
Personal Property Registry. The second stage amendments in The Improved Enforcement
of Support Payments (Various Acts Amended) Act
(http://web2.gov.mb.ca/laws/statutes/2004/c01404e.php) come into effect on
proclamation and will strengthen enforcement tools for collection of support payments.
Article 24: Rights of the child
Aboriginal Justice Inquiry - Child Welfare Initiative (AJI-CWI)
475.
The Aboriginal Justice Inquiry – Child Welfare Initiative was established in 2000 to
restructure the Manitoba child welfare system, in response to a recommendation made
earlier that year by the Aboriginal Justice Implementation Commission (see above). The
Commission had identified child welfare as a priority and recommended that the
Government of Manitoba work with First Nations and Métis leaders to develop a plan
that would result in First Nations and Métis communities developing and delivering child
welfare services province-wide.
476.
A series of agreements between the Manitoba government and First Nations and Métis
representatives were negotiated, and The Child and Family Services Authorities Act
(http://web2.gov.mb.ca/laws/statutes/ccsm/c090e.php) came into effect November 24,
2003. The Act creates four new Child and Family Services Authorities for Manitoba: the
Métis Child and Family Services Authority; the First Nations of Southern Manitoba Child
and Family Services Authority; the First Nations of Northern Manitoba Child and Family
Services Authority; and the General Child and Family Services Authority.
477.
The new system is unique in Canada, and returns to First Nations and Métis peoples the
right to develop and control the delivery of their own child and family services in a
manner consistent with First Nation and Métis cultural traditions and beliefs.
478.
No matter where they live in Manitoba, Aboriginal children and families will have access
to child and family services from agencies providing services on behalf of an Aboriginal
Authority. To ensure that children, families and communities are kept together, that
decisions are made in the best interests of children and that service arrangements are
culturally appropriate, stable and friendly, a standardized process has been developed
which will direct children and families to their most culturally appropriate Authority.
The process also provides families with an opportunity to choose a different Authority to
be responsible for service provision. As of October 31, 2003, this process was completed
for an estimated 7,800 families and children receiving services through the Child and
Family Services system in Manitoba. The majority of these families chose to receive
services from their most culturally appropriate service provider.
479.
When fully implemented, the AJI-CWI will promote the following outcomes for the
Métis and First Nations communities affected: self-governance; capacity building;
employment opportunities; improved outcomes in terms of reduced child apprehensions
and provision of improved family supports; and improved community health. More
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information on the progress of the AJI-CWI is available at www.ajicwi.mb.ca/eng/index.html.
Healthy Child Manitoba
480.
Healthy Child Manitoba, established in March 2002, works across Manitoba government
departments to build a community development approach for the well-being of
Manitoba’s children, families and communities. This effort is led by the Healthy Child
Committee of Cabinet, chaired by the Minister of Family Services and Housing and
comprised of the ministers of Aboriginal and Northern Affairs; Culture, Heritage and
Tourism; Education and Youth; Health; Justice; and the Status of Women. The core
commitments of Healthy Child Manitoba include Foetal Alcohol Syndrome prevention,
adolescent pregnancy prevention and prenatal and early childhood nutrition programs.
481.
During the reporting period, activities included:
•
•
•
•
•
increased funding for child care centres and family child care homes;
increased support for families with children 6 years of age and under, who now
receive the full National Child Benefit Supplement;
funding to launch the Healthy Baby prenatal program for pregnant women on lower
incomes, the first program of its kind in Canada;
more funding for the BabyFirst program, which provides a three-year home visiting
service for newborns; and
increased support to community coalitions for local programs such as parenting
support, children’s nutrition and literacy development.
For additional information, see http://www.gov.mb.ca/healthychild/.
Other measures
482.
In April 2002, Manitoba’s Five-Year Plan for Child Care in Manitoba was announced.
The Plan advances three major elements to help strengthen children and their families –
maintaining and improving quality of child-care; improving accessibility; and improving
affordability of child care. For further information, see
https://direct.gov.mb.ca/cdchtml/html/internet/en/five_yr_plan.html.
483.
Manitoba Family Services and Housing has established a policy that allows First Nations
agencies to apply for and retain the Child Tax Benefit provided by the government of
Canada for children in their care. Non-aboriginal agencies are required to remit the
benefit to General Revenue of the Province. This differential policy was established to
partially offset an inequity in funding to First Nations agencies caring for children who
are the responsibility of the Province. Manitoba has committed to addressing this
inequity as resources permit and has gradually made improvements to funding. The
funding model is under negotiation in the AJI-CWI implementation process.
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484.
In 1997, in concert with the federal government, Manitoba introduced Child Support
Guidelines to provide certainty of entitlement to child support for custodial parents in the
event of separation or divorce. Manitoba amended these guidelines in 2001 to clarify
provisions respecting the non-custodial parent’s contribution to special expenses and
financial disclosure requirements. These guidelines can be found at
http://canada.justice.gc.ca/en/ps/sup/grl/glp.html.
485.
The following programs and services were delivered through Family Conciliation of
Manitoba Family Service and Housing:
•
•
•
commencing in 1995, a parent information program – “For the Sake of the Children”
– was initiated to provide separating parents with information and education
regarding the effects of separation and conflict on children. As of March 2003, over
10,000 parents had attended;
commencing in 2001, a joint pilot project between federal Justice, Manitoba Justice
and Manitoba Family Services and Housing was initiated to provide enhanced
assessment services to the Court of Queen's Bench on custody and child access
matters. The program provides brief consultation and the 'voice of the child' for older
children, to help assess the wishes and concerns of the child and aid the court in
decision-making. Between March 2002 and March 2003, two staff dedicated to this
service area completed 143 assessments for families and the court. This service is in
addition to the longstanding provision of free, court-ordered custody and access
assessment reports;
“Caught in the Middle”, a support and education program for 8-12 year old children
whose parents are in conflict over separation and divorce issues was initiated.
486.
The Children’s Advocate, established in 1993 to respond to complaints about children
receiving or entitled to receive services from child welfare authorities, now reports
directly to the Speaker of the Legislative Assembly, rather than to the Department of
Family Services and Housing. For more information about Manitoba’s Children’s
Advocate, see http://www.childrensadvocate.mb.ca/English/index.html.
487.
In 1999, The Child and Family Services Act
(http://web2.gov.mb.ca/laws/statutes/ccsm/c080e.php) was amended to allow
applications for access to children by extended family members to be determined on the
basis of the best interests of the child, rather than requiring extraordinary circumstances.
Article 26: Equality before the law
488.
The Adoption Act (http://web2.gov.mb.ca/laws/statutes/ccsm/a002e.php) and The Child
and Family Services Act were amended to make the language gender neutral and provide
the opportunity for same sex couples to both legally adopt a child. De facto and extended
family adoption provisions were also expanded to provide the opportunity for two
persons in a non-conjugal relationship to adopt a child. These provisions enabled
existing placements to be finalized, providing permanency for a number of children.
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489.
In 2001 and 2002, Manitoba passed a series of three acts dealing with common-law
relationships, broadening them to include same-sex relationships and providing support
and property rights similar to those of spouses. The acts amended included The Family
Maintenance Act and legislation providing death benefits or pension benefits to commonlaw spouses, but a broad spectrum of laws in addition to those relating to families were
also affected.
490.
The first Act, entitled “An Act to Comply with the Supreme Court of Canada Decision in
M. v. H.” (http://web2.gov.mb.ca/laws/statutes/2001/c03701e.php), defined “commonlaw” relationships gender neutrally, repealed or expanded definitions of “spouse”, and
made the definition of “common-law relationship” more consistent from situation to
situation. While the dominant definition relates to three years of cohabitation, or one
year if there is a child of the relationship, a single standard is not feasible and the
definition varies from act to act. The second step in this process was The Charter
Compliance Act, passed in 2002
(http://web2.gov.mb.ca/laws/statutes/2002/c02402e.php), which amended a large number
of acts by redefining “common-law partner”. While the most common definition is a
person cohabiting with another “in a conjugal relationship of some permanence”, one
definition could not be applied to all situations, and the definition varies from act to act.
Finally, in 2002, Manitoba passed The Common-Law Partners’ Property and Related
Amendments Act (http://web2.gov.mb.ca/laws/statutes/2002/c04802e.php). Once
proclaimed, this Act provides common-law spouses with property rights similar to
spouses.
Article 27: Religious, Cultural and Linguistic rights
Aboriginal people
491.
On March 2, 2001, the Government of Manitoba, the Government of Canada and the
Sioux Valley First Nation signed the Sioux Valley First Nation Self-government
Agreement-in-Principle, setting the stage for self-government for the Dakota people of
Sioux Valley First Nation. It is anticipated that the comprehensive agreement may be
finalized by July 2004. For further information, see www.ainc-inac.gc.ca/nr/prs/ja2001/01110bk_e.html.
492.
Funding has been provided to the Aboriginal Council of Winnipeg and the Manitoba
Métis Federation in support of self-government tri-partite negotiations.
493.
Treaty Land Entitlement negotiations continued between the Government of Canada,
Manitoba and the Treaty Land Entitlement Committee of Manitoba, which represents 19
First Nations with validated Treaty Land Entitlement claims. On May 29, 1997, the
Treaty Land Entitlement Framework Agreement was signed by the 19 “Entitlement First
Nations”, the Government of Canada and the Government of Manitoba. As of March 31,
2003, 748,270 acres of Manitoba Crown land have been selected and 175,415 acres have
been surveyed for transfer to the Government of Canada. For further information, see
http://www.gov.mb.ca/ana/tle_overview.html.
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494.
Implementation of comprehensive settlements under the Northern Flood Agreement
continued. The Northern Flood Agreement, signed in 1977 and involving Canada,
Manitoba, Manitoba Hydro and 5 Northern First Nations communities, addresses the
effects of the flooding of lands for hydro development in these Northern communities.
For further information, see http://www.gov.mb.ca/ana/agreement.html.
495.
Tri-partite negotiations took place with the Aboriginal Council of Winnipeg respecting
the Alternative Justice Program; adult education – the Aboriginal Community Campus;
the Aboriginal Health and Wellness Centre; and labour market training.
496.
Tri-partite negotiations took place with the Manitoba Métis Federation respecting
housing; culture and education (the establishment of the Louis Riel Institute); and the
Aboriginal Justice Inquiry - Child Welfare Initiative.
Multiculturalism
497.
The Manitoba Multiculturalism Secretariat coordinates implementation of Manitoba's
Multicultural policy and administers The Manitoba Ethnocultural Advisory and Advocacy
Council Act (http://web2.gov.mb.ca/laws/statutes/ccsm/e148e.php). The Secretariat is
responsible for identifying priorities for action throughout government departments and
agencies and ensuring the principles of multiculturalism are incorporated in their
programs and services. Multicultural, cross-cultural and anti-racism initiatives are
generated in government and communicated to the public and to other departments to
encourage their continued evolution and development.
498.
Through the Multiculturalism Secretariat and the Ethnocultural Community Support
Fund, consultation, advice, board development and program planning supports are
provided to ethnocultural community organizations. The Secretariat promotes and
maintains the cultural values of Manitobans and encourages the development,
understanding, appreciation and sharing of the diverse cultural values that enrich our
province. It also coordinates communication projects to ensure cultural sensitivity, and
participates on intergovernmental and community committees and with other levels of
government to promote anti-racism, good citizenship and cultural awareness.
499.
On July 6, 2001, The Manitoba Ethnocultural Advisory and Advocacy Council Act came
into effect. The Act establishes a Multicultural Council that advocates on behalf of, and
provides advice to the government on issues of importance to, the ethnocultural
community.
Immigrants
500.
The Immigrant Integration Program has two components to assist immigrants to settle in
Manitoba and fully participate Manitoba life. Funding and supports are provided for
adult language training to assist immigrants to develop communicative competence in
English and acquire necessary, appropriate and timely settlement information to pursue
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their personal, academic and employment goals and live lives of dignity and purpose in
Canada. The Program also provides settlement services that facilitate the economic and
social integration of immigrants in Manitoba and enhances their ability to contribute to
and participate in Manitoba’s labour market economy. Coordination, awareness raising
and professional development activities are also conducted within government and with
service providers and the general public to ensure the rights of immigrants and refugees
are respected.
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Saskatchewan
Article 2: Equal rights and effective remedies
501.
Amendments to The Saskatchewan Human Rights Code were proclaimed in November
2001. The amendments replaced the ad hoc board of inquiry system with an independent
human rights tribunal and streamlined the complaint process. Information respecting
those amendments can be found in paragraphs 265-268 of Canada's Fifteenth and
Sixteenth Reports on the International Convention on the Elimination of All Forms of
Racial Discrimination.
502.
In 2003-2004, the Saskatchewan Human Rights Commission received 3,926 inquiries and
opened 242 complaint files. Allegations of discrimination were on the following
grounds:
Mental or physical disability
Sex
Ancestry
Age
Religion
Marital status
Family status
Sexual orientation
Receipt of public assistance
Other
41.1%
23.4%
18.4%
5.2%
1.0%
1.7%
3.8%
3.1%
0%
2.1%
503.
At all stages in the complaint process, the Human Rights Commission encourages
resolution of complaints through mediation and settlement. In 2003-04, 28.3% of
complaints were resolved through settlement agreements.
504.
Information respecting Saskatchewan’s Cree Court, Circle Courts, Courts on Reserve, the
Aboriginal Courtworker Program, and Community Justice programs and initiatives, can
be found in Canada's Fifteenth and Sixteenth Reports on the International Convention on
the Elimination of All Forms of Racial Discrimination. The number of courtworkers in
the Aboriginal Courtworker Program has increased to 29, and the number of Aboriginal
carrier agencies that employ the courtworkers has increased to 16.
505.
On November 15, 2001, the Attorney General for Saskatchewan announced the
establishment of the Commission on First Nations and Métis Peoples and Justice Reform.
This independent Commission engaged in problem-solving dialogue with the people of
Saskatchewan, in particular with Aboriginal communities and organizations, to identify
efficient, effective and financially responsible reforms to the justice system. The
Commission released its final report on June 21, 2004, after having released three interim
reports. Information respecting the recommendations of the Commission and the
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Saskatchewan Government’s response may be found in Canada’s Fifth Report on the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.
506.
In 2001, Saskatchewan passed The Class Actions Act, allowing plaintiffs to launch class
actions in situations where they may previously have been discouraged from pursuing
individual claims due to the potentially high cost of litigation.
507.
In 1997, a new Small Claims Act was passed, improving access to the courts for people
with claims of small monetary amounts. Among other things, the Act has allowed for a
wider variety of cases to be heard in Small Claims Court and has expanded the kinds of
Orders the Court can make.
Article 3: Equal rights of men and women
508.
On October 3, 2003, the Government of Saskatchewan released the Action Plan for
Saskatchewan Women, a plan that envisions empowered women who have the
opportunities and resources to influence and benefit from the social, cultural, political and
economic life of Saskatchewan (http://www.swo.gov.sk.ca/Action_Plan.pdf ). The Action
Plan was the result of a cooperative effort of all departments, the Crown Investments
Corporation, and the women’s community, who adopted a strategic and integrated
approach to achieve a common vision. This plan will guide the Government of
Saskatchewan over the next three to five years as it works to achieve equality for
Saskatchewan women.
509.
The Action Plan has four goals, with objectives and actions under each goal:
•
•
•
•
510.
Economic equality and security of all Saskatchewan women;
Safety for all Saskatchewan girls and women in their homes, schools, institutions,
workplaces and communities;
Health and well-being for all Saskatchewan women; and
Equitable participation of women in leadership and decision-making in all sectors of
society and the economy.
Among other things, the Plan will support the delivery of gender-based analysis (GBA)
training, which is now underway, and the integration of GBA throughout government and
the Crown sector.
Article 6: Right to life
511.
Phase II of the National Homelessness Initiative was announced in the 2003 federal
budget. Saskatchewan’s allocation under Phase II is identified as $12.5 M over a threeyear period. The program is delivered by Human Resources and Skills Development
Canada (HRSDC). The federal priority is transitional housing with support services.
Support services will be a critical aspect of both transitional and longer-term housing
solutions for the homeless.
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512.
The province has an interest in responding to homelessness. The goal is the promotion of
independence and self-reliance for people who are homeless or at significant risk of
homelessness. People who are identified as at-risk are special needs and multiple needs
populations including those leaving homes with family violence, persons with disabilities
that prevent them from finding permanent housing, youth in transition and transient
people. Saskatchewan officials are working informally with local HRSDC staff to
establish a mutually agreeable process to identify, review and develop projects for the
National Homelessness Initiative.
513.
In Saskatchewan, the suicide rate for all people of all ages (per 100,000 population) was
12.9 for 2000, 10.9 for 2001 and 10.8 for 2002. To address the high rate of suicide
among young people and Aboriginal people, over the past decade the Province has
increased funding to regional health authorities to provide suicide prevention,
intervention and post-intervention services. It has supported education and training for
professionals and communities dealing with the issue of suicide. On a broader prevention
level, the Province has implemented a number of child and youth initiatives such as
KidsFirst, a program to maximize healthy early childhood development; the Youth
Services Model, a program to reduce reliance on the youth criminal justice system to deal
with youth misconduct; and SchoolPLUS ,a provincial initiative where schools nurture the
development of the whole child, intellectually, socially, spiritually, emotionally and
physically; and serve as centres for the delivery of social, health, recreation, culture,
justice and other services for children and their families. The western provinces,
including Saskatchewan, have also begun discussions with the federal government on the
coordination of services for Aboriginal people who typically cross over between federal
and provincial jurisdictions.
514.
With respect to Fetal Alcohol Spectrum Disorder (FASD), the Province supports a
number of prevention, awareness and intervention initiatives including the Provincial
Fetal Alcohol Spectrum Disorder Prevention Program and the Saskatchewan Fetal
Alcohol Support Network. In addition, KidsFirst provides support to vulnerable families
and gives priority to pregnant women. The Province is working to have all health
professionals understand FASD and incorporate the functioning and special needs of
individuals affected by FASD into the way services are provided. Six departments are
currently developing a provincial strategy for individuals with complex cognitive
disabilities, including FASD, based on feedback received from a number of community
discussions held across the province. Saskatchewan participates in the Canada Northwest
FASD Partnership, an alliance of seven provinces and territories, that is committed to the
development, promotion and co-ordination of a comprehensive approach to the
prevention of FASD, as well as the intervention, care and support of individuals affected
by FASD.
515.
A child death review policy, which has been in place since 1992, was revised in February
2004 by Saskatchewan Department of Community Resources and Employment. The
policy pertains to circumstances where a child or youth dies and the child, youth or
family received services pursuant to The Child and Family Services Act, or the Youth
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Criminal Justice Act (Canada), or attended a child-care centre or a family child care
home licensed under The Child Care Act. Child death reports are published by the
Saskatchewan Children’s Advocate office:
http:/www.saskcao.ca/adult/linksandpublications.html.
Article 7: Protection against torture
516.
For information respecting Saskatchewan measures to prevent violence, torture and other
cruel, inhuman or degrading treatment or punishment, and to provide compensation to
victims of personal violent crimes, see Canada’s Fifth Report on the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Article 8: Protection against slavery and forced labour
517.
Legislation has been implemented in Saskatchewan to hold accountable and deter those
who would exploit children for sexual purposes, and strengthen protections and support
services for victims. In 2002, Saskatchewan proclaimed The Emergency Protection For
Victims of Child Sexual Abuse and Exploitation Act. The Act provides for emergency
applications to be made to a Justice of the Peace for the purpose of obtaining a protective
intervention order to prevent contact between a child, who is being exposed to sexual
abuse and is under 18, and the offender. The Act also provides the police with enhanced
search and seizure powers in relation to vehicles in the stroll area or where a police
officer has reasonable grounds to believe that there is evidence in a vehicle of child
sexual abuse.
Article 10: Treatment of persons deprived of liberty
518.
Integrated Case Management provides for a collaborative and coordinated team approach
to managing an offender’s sentence, with the objective of successfully reintegrating the
offender back into the community. It involves all personnel actively engaged with an
offender, such as police, social workers, mental health professionals, and community
agencies. In the case of young offenders, families can be involved as well. Case
management planning begins at the outset of the offender’s entry into the system.
519.
See also Canada’s Fifth Report on the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment.
Article 17: Right to privacy
520.
Saskatchewan has three pieces of legislation related to freedom of information and
protection of privacy: The Freedom of Information and Protection of Privacy Act
(FOIP), in effect since 1992, The Local Authority Freedom of Information and Protection
of Privacy Act (LA FOIP), in effect since 1993, and The Health Information Protection
Act (HIPA), which came into force on September 1, 2003. The Saskatchewan
Information and Privacy Commissioner is an independent officer of the Legislative
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Assembly who is responsible for ensuring that public bodies respect both privacy rights
and access rights under the three Acts.
521.
From 1992 to 2003, the Information and Privacy Commissioner was a part-time position
but, effective November 1, 2003, it became a full-time position. A stand-alone office was
also established, with an Office Manager and an Assistant to the Commissioner. The
number of inquiries increased from 428 in 2002-03 to 641 in 2003-04, and the number of
case files increased from 75 in 2002-03 to 92 in 2003-04 (Office of the Information and
Privacy Commissioner 2003-2004 Annual Report). More information on the Office of
the Information and Privacy Commissioner can be obtained at http://www.oipc.sk.ca.
522.
The privacy of persons living on social assistance continues to be protected by the FOIP.
No change has been implemented to the procedures for identifying recipients of social
assistance. Fingerprinting and retinal pattern reading would be viewed as extraordinary
approaches that do not reflect provincial practice.
Article 18: Freedom of thought, conscience and religion
523.
The Education Act, 1995 allows parents to educate their children at home, rather than
sending them to school, for reasons of religious or conscientious belief. The total number
of students being home schooled has increased by about 100 per year since 1994.
524.
In 2000, Saskatchewan replaced The Dependent Adults Act with The Adult Guardianship
and Co-decision-making Act. The latter Act includes provisions for the appointment of a
personal or property co-decision-maker for an adult who requires assistance in decision
making but does not need full guardianship services. This respects the autonomy of
adults by recognizing their rights to receive the least restrictive intervention possible.
Article 22: Freedom of association
525.
The Construction Industry Labour Relations Act, 1992, established a province-wide
system of trade-by-trade bargaining in the construction industry. The Act established
trade divisions along craft lines, and provided for naming a single employer organization
and trade union for each trade division. The Construction Industry Labour Relations
Amendment Act, 2000 disallowed a unionized company to operate a non-union spin-off in
the same business sector. Eliminating double-breasting put all Saskatchewan
construction firms on the same competitive footing as those in other jurisdictions.
Article 23: Protection of the family, right to marriage and equality
between spouses
526.
In 2001, the Saskatchewan Government passed The Miscellaneous Statutes (Domestic
Relations) Amendment Act, 2001 and its bilingual companion Bill, The Miscellaneous
Statutes (Domestic Relations) Amendment Act, 2001 (No. 2). These Acts amended
fourteen statutes to provide for same-sex couples to be treated in the same way in law in
Saskatchewan as common law couples. In those statutes, the benefits and obligations had
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already been extended to unmarried opposite sex couples. The two Bills also amended
eight Acts to extend benefits and obligations to unmarried couples where they were then
provided only to married couples.
Article 24: Rights of the child
527.
The Saskatchewan Provincial Youth Advisory Committee (PYAC) is an example of
youth and government working together in meaningful ways to make substantive changes
in areas of concern to youth. The main objective is to engage youth in decision making
and thereby developing the capacity of the next generation of Saskatchewan leaders.
Members learn about strategic planning and the formation of government policy. The
PYAC has provided valuable feedback on government policies and strategies related to
youth. The PYAC is funded through the Department of Culture, Youth and Recreation.
528.
The Saskatchewan Youth in Care and Custody Network is a provincial organization made
up of young people who are, or have been, in care or custody. Its primary objectives
include supporting youth and addressing specific issues in the child welfare system. The
Network provincial office and the local Network groups are funded through the
Department of Community Resources and Employment.
529.
Youth justice proceedings contain special guarantees to protect the rights of young
people, such as protection of their identity and involvement of their families/guardians in
their case planning. There is a recognition of the fact that young persons lack the
maturity and knowledge of adults, and thus require safeguards to ensure their privacy and
other rights are protected.
530.
Canada’s Second Report on the Convention on the Rights of the Child, referred to the
establishment of the Children’s Advocate Office (CAO). In 2003, the CAO received
1069 new requests for service. 18% of calls were from children or youth, and 50% were
from parents requesting services on behalf of children or youth. Others requesting
services included extended family members, those in professional relationships with
children, foster parents, and interested third parties. In 2003, 55% of callers were assisted
through Self-Advocacy Strategies, which included information on government policies,
procedures and appeal processes, and ideas to assist callers in resolving issues. 27% of
callers received Early-Advocacy Intervention, which involved the CAO making initial
calls, conducting preliminary negotiations, and providing further self-advocacy strategies.
14% of callers received In-Depth Advocacy Intervention, which is used when issues are
not resolved through self-advocacy strategies or early-advocacy intervention. In-Depth
Advocacy Intervention generally includes meetings, and may involve more in-depth
coaching in self-advocacy, liaison with government departments and organizations, case
conferences or, on a limited basis, formal investigations.
531.
The Children’s Advocate Office is also involved in public education (in 2003, staff made
approximately 100 presentations related to the role of the CAO and issues involving the
interests of children); in systemic advocacy respecting government policies, practices or
legislation (eg. issues related to youth in conflict with the law, mental health services for
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children and youth, dispute resolution in the school environment, services for children
with disabilities and standards of care in residential family services and First Nations
Child and Family Services facilities, and safeguards for children and youth in foster and
group home care); and in community advocacy on children's issues (eg. Fetal Alcohol
Spectrum Disorder, Section 43 of the Criminal Code of Canada) (Saskatchewan
Children’s Advocate 2003-2004 Annual Report). More information on the work of the
CAO can be found at www.saskcao.ca.
Articles 26: Equality before the law
532.
In 2003-04, the Saskatchewan Human Rights Commission provided 61 seminars and
presentations, participated in 27 community-outreach or partnership events, filled
numerous requests for information, and responded to 46 media inquiries.
533.
By 2003-04, the number of voluntary employment equity programs in Saskatchewan had
increased to 37 employers, covering over 42,000 employees or approximately 10% of
Saskatchewan workers.
534.
In the sponsor workforces, the percentage of Aboriginal employees increased from 2.9%
to 7.9%, and to 10.2% in the Government of Saskatchewan between 1993 and 2003.
Aboriginal people make up approximately 13.5% of the Saskatchewan population.
During the same period, the percentage of visible minorities in the sponsor workforces
increased from 1.5% to 3.1%, and the percentage of people with disabilities increased
from 2.9% to 3.6%. Visible minorities are approximately 3.0% of the provincial working
age population, although these percentages are higher in the province's two largest cities:
5.5% and 5.8% in Regina and Saskatoon respectively. People with disabilities represent
11.1% of the working age population. Women make up 46.5% of the workforce, but are
underrepresented in management positions. Since 1993, the number of women in
management has increased from 27.6% to 33.2%, although this figure reached 35.1% in
1998 and then dropped to 33.2%.
535.
In 2003-04, there were education equity programs in 17 school divisions, involving close
to 80,000 students. In addition, the Regina Public School Division had an employment
equity program enabling the recruitment of Aboriginal staff, which brought the total
number of students benefitting from these programs to over 100,000, or approximately
57% of the students in the kindergarten to grade 12 system. In addition, there were
education equity plans in ten post-secondary institutions.
536.
Of self-declared Aboriginal students who entered Grade 10 between 1992 and 1998,
approximately 47% completed Grade 12. In 2003-04, the Saskatchewan Human Rights
Commission asked education equity sponsors to provide statistics on numbers of
Aboriginal and non-Aboriginal students entering and completing grade 12, but since the
information had not previously been requested only a few school divisions were able to
provide the information. Of the small number that did respond, 57.6% of Aboriginal
students completed Grade 12, compared to an overall graduation rate of
82.4%.(Saskatchewan Human Rights Commission 2003-2004 Annual Report)
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537.
Further information respecting the work of the Saskatchewan Human Rights Commission
can be found at http://www.gov.sk.ca/shrc/.
538.
In June 2003, the Federation of Saskatchewan Indian Nations established the First
Nations University of Canada, formerly known as the Saskatchewan Indian Federated
College, which was created in 1976 as a federated partner of the University of Regina. It
is an independently administered university that offers quality education in an
environment of First Nations’ cultural affirmation. The Elders presence at the university
provides wisdom and counsel for students and staff and ensures that new programs and
services are founded on tradition. There are over 2,000 students attending.
539.
The Saskatchewan Indian Institute of Technologies Act (July 1, 2000) recognizes the
Saskatchewan Indian Institute of Technologies (SIIT) as the province’s First Nations
technical training institution with the ability to grant certificates and diplomas. This
legislation ensures that First Nations people have full control over the operation of their
institution and has also enhanced SIIT’s credibility and stature within the country. In
2002-03, SIIT’s enrolments totaled 1,013 full-time students and 220 part-time students.
540.
The former Non-status Indian and Métis Program and other targeted funding programs
were rolled into the Provincial Training Allowance (PTA). The PTA program is incometested and provides financial support for people enrolled in basic education, short skills
and bridging programs. In 2003-04 approximately 62% of those participating were
Aboriginal.
541.
The provincial government continues to provide funding and support to the Gabriel
Dumont Institute of Métis Studies and Applied Research to focus on education through
cultural research as a means to renew and strengthen the heritage and achievements of
Saskatchewan’s Métis people. Funding continues to be provided to Dumont Technical
Institute (DTI) to develop and deliver culturally relevant adult basic education and skills
training for Métis people. In 2002-03, DTI had 354 students enrolled in adult basic
education and 220 students enrolled in skills training.
542.
Partnership agreements such as the Northern Health Science Access Program and the
Nursing Education Program of Saskatchewan in Prince Albert (both started in fall 2002)
enable students to achieve their education and career aspirations while preserving the
northern perspective of cultures, languages and traditional values. Elders are available to
provide support.
543.
The Post-Secondary Sector Aboriginal Education and Training Action Plan was
implemented in 2002-03 to increase the participation of Aboriginal people in postsecondary education and training, and to increase the participation and employability of
underrepresented groups to contribute to a representative workforce.
544.
Amendments to The Education Act, and Regulations in 1997 allow members of the
French-language minority to establish and operate their own schools, where numbers
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warrant, in accordance with Section 23 of the Canadian Charter of Rights and Freedoms.
In 1994-95 there were eight schools in the Francophone School Division with an
enrolment of 1,001 students, and in 2003-04 there were 13 schools with an enrolment of
1,070 students.
545.
In 2001, the Equity in Education Forum produced Planning for Action, an
implementation guide for the 1997 policy framework Our Children, Our Communities,
and Our Future. The Forum hosts an annual fall symposium to provide an opportunity
for educators to network and advocate on issues relating to education equity.
Article 27: Religious, cultural and linguistic rights
546.
The Government of Saskatchewan recognizes the inherent right to self-government of
First Nations people to exercise jurisdiction on reserve land. Saskatchewan has been
negotiating a self-government agreement with Canada and the Federation of
Saskatchewan Indian Nations (FSIN). A separate process has also been underway
between the province, Canada and the Meadow Lake Tribal Council (MLTC). An
agreement-in-principle was initialed by negotiators in July 2004 in the FSIN process. In
the MLTC process, an agreement-in-principle was signed by the parties in January, 2001.
547.
The proclamation of The Métis Act and signing of the associated Memorandum of
Understanding took place in January 2002. The Act focuses on three primary areas:
•
•
•
it recognizes the historic, economic and cultural contributions the Métis have made to
the development and property of Canada;
it enables the Métis Nation--Saskatchewan Secretariat Inc., and its subsidiaries, to do
business outside of The Non-profit Corporation Act, 1995; and
it sets out a mechanism to address practical, non-rights based issues and enhanced
opportunities that are important to Métis people, such as capacity building, land,
harvesting and governance, through an accompanying Memorandum of
Understanding.
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Alberta
Article 2: Equal rights and effective remedies
548.
In 1972, the Government of Alberta endorsed the Canadian Bill of Rights by creating the
Alberta Bill of Rights. At the same time, the Individual's Rights Protection Act was
enacted as the human rights law in the province. In 1996, this Act was repealed and new
legislation was passed called the Human Rights, Citizenship and Multiculturalism Act.
549.
The Human Rights, Citizenship and Multiculturalism Act recognizes everyone in Alberta
has the right to be treated with dignity and equality. It prohibits discrimination in the
following areas: public statements, publications, notices, signs and other representations;
public services, goods, accommodation, or facilities; tenancy; job advertisements and
applications; employment practices; and membership in trade unions, employers'
organizations, or occupational associations.
550.
It is a legislated right that every person in Alberta is protected from discrimination in the
following grounds: race; marital status; religious beliefs; family status; colour; age;
gender; ancestry; physical disability; place of origin; mental disability; source of income;
and sexual orientation.
551.
All grounds are protected in all areas, with the exception of age, which is defined as 18
years and over and is not covered in the areas of tenancy or public services, goods,
accommodations or facilities.
552.
The Government of Alberta has established the Alberta Human Rights and Citizenship
Commission to administer and gain compliance with the Human Rights, Citizenship and
Multiculturalism Act. The Commission is made up of a Chief Commissioner and
Commissioners selected from the general public. They are appointed by the LieutenantGovernor. The Commission reports to the Minister of Community Development.
553.
The Commission receives complaints alleging discrimination at its regional offices in
Calgary and Edmonton and offers a complaint resolution process. Additional information
on the Commission, its programmes and its complaint resolution process can be found at
http://www.albertahumanrights.ab.ca.
554.
The Ombudsman Amendment Act was introduced in the legislature in March 2003. The
proposed amendments will allow the Ombudsman to access all the information he needs
to thoroughly investigate complaints about the administrative actions of provincial
government departments and their associated boards and agencies. The Ombudsman
investigates complaints of unfairness within the administration of the provincial
government after all other avenues of appeal have been exhausted.
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555.
The Class Proceedings Act outlines the specific process for cases involving multiple
plaintiffs with similar claims against the same defendant or defendants. The Act will help
improve access to justice for Albertans with legitimate actions that might not pursue them
because of the high cost of pursuing a case in court. The Act was proclaimed in force
April 1, 2004.
556.
The Calgary Domestic Violence Intake Court was established in May 2000. The
judiciary, prosecution service and probation have dedicated staff to this court. The
Edmonton Domestic Violence Court began on September 1, 2001. Currently, the
dedicated prosecutors assigned to the Family Protection Unit are handling family
violence docket and trial courts and all first appearances for family protection. In
Lethbridge, protocols have been in place since 1999 to coordinate services to people
affected by family violence. In March 2004, the Lethbridge Domestic Violence Docket
Courtroom heard its first matters. The Domestic Violence Docket Court operates every
Tuesday afternoon with a specialized domestic violence Crown prosecutor.
557.
The Edmonton First Appearance Centre, a joint project of Alberta Justice and the
Edmonton Police Service, was launched in 2001. The centre is designed to deal with noncriminal traffic offences outside of court. People who appear at the Edmonton courthouse
may either set a trial date or speak to a prosecutor at the First Appearance Centre. The
prosecutor can then provide information about the nature of the fine and the legal options
available if they go to court. Where appropriate, the prosecutor works to resolve the
matter with the accused before he or she goes to court. The centre is based on a similar
First Appearance Centre in Calgary that opened in 1999. Similar services were also
introduced in the St. Albert, Sherwood Park and Stony Plain courthouses.
558.
The Criminal Justice Division has designated at least one Crown prosecutor in each of the
12 provincial Crown offices as an Aboriginal Liaison Crown Prosecutor. The role of the
Aboriginal Liaison Crown Prosecutor is to develop relationships and work with local
First Nations and Metis communities to identify local criminal justice needs, to
participate in developing community-based Aboriginal justice initiatives and to act as a
resource to other Crown prosecutors on Aboriginal justice issues.
559.
Easy-to-read booklets and court forms are now available at the Court of Queen's Bench
Family Law Information Centres to help Albertans who represent themselves in family
court. About 20 per cent of the more than 15,000 Court of Queen's Bench family law
cases each year involve a person not represented by a lawyer. The booklets and court
forms use plain language to explain the often complicated procedures, giving ordinary
Albertans the information they need to represent themselves. The booklets and court
forms cover 27 different court applications in the area of family law ranging from child
support, custody and access, to restraining orders and protection orders.
560.
The Law Society Libraries web site, which allows users to search the catalogues of the
Law Society Libraries and the Legal Reference Libraries via internet, was launched in
December 2001. Users can also ask reference questions electronically and link to a
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multitude of other legal resources and information, including judgments and legislation
from across Canada and around the world.
561.
Alberta Justice in consultation with Alberta Learning and Alberta Solicitor General,
worked with teachers from across the province to develop a teaching resource for use in
Grade 10 Social Studies classes. Using a variety of teaching and learning activities, the
manual addresses five areas of law within the Canadian judicial system: constitutional,
Aboriginal, criminal, civil and youth. The resource was distributed to 625 Social Studies
teachers across the province.
562.
The Legal Aid Society opened new Family Law Legal Aid offices in Edmonton in July
2001 and in Calgary in October 2001. These two offices provide family law services to
Albertans who qualify for legal aid assistance in areas including divorce, child welfare
and custody disputes. Mediation and other alternative dispute resolution processes are
also used. The offices are a four-year pilot project that will examine the quality and costeffectiveness of using Legal Aid staff lawyers to provide family law legal services.
563.
A pilot project for all unrepresented applicants in the Family Division of the Provincial
Court (except in Child Welfare matters) was launched in October 2001. Under the pilot,
unrepresented parties are required to meet with intake counsellors and attend conferences
before a caseflow coordinator to determine if matters can be resolved. These staff
members explore options with the parties, facilitate resolutions and make referrals.
Parties also receive information on mediation, judicial dispute resolution and relevant
courses to assist in resolving matters without going to court. If a matter cannot be
resolved, staff members ensure documents are in order, explain the court process and
accompany parties through the court process.
564.
The Aboriginal Courtwork Program is cost-shared through a Memorandum of Agreement
between the Government of Alberta and the Government of Canada. The program
provides Aboriginal people with counselling (other than legal) in relation to court
procedures, their rights, and the availability of legal aid and other resources. The mandate
of the Aboriginal Courtwork Program is to facilitate and enhance access to justice by
assisting an Aboriginal person, who has been charged with a criminal offence and is
before the Criminal Division of the Provincial Court of Alberta, to understand the system
and its processes. In four Aboriginal communities, courtwork programs are provided
through agreements between Alberta Justice and community corrections societies or
justice commissions created by these communities. They include: Kainai Community
Corrections Society, Siksika Justice Commission, Tsuu T'ina Nation/Stoney Corrections
Society, Yellowhead Tribal Community Corrections Society. In other Alberta locations,
Native Counselling Services of Alberta provides courtwork services for Aboriginal
people facing criminal charges. All Aboriginal people (Indian, Inuit or Metis) are eligible
for courtwork services, regardless of their status or place of residence.
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Article 4: Derogation clause
565.
The Security Management Statutes Amendment Act amends 17 Alberta acts to prevent or
reduce the threat of terrorist activity and enhance the province's ability to respond to
emergency situations. The Act upgrades precautions to protect the safety and security of
all Albertans, and the province's infrastructure, industry, natural resources and
environment.
Article 6: Right to life
566.
All mortality data is transferred from Alberta’s vital statistics board to Statistics Canada
on a yearly basis. This data includes, but is not limited to, infant mortality data. The
Government of Canada also receives a record of all hospitalizations in Alberta, which
allows it to determine maternal mortality, among other things. Finally, the Government of
Canada is provided with copies of all reports produced by the Government of Alberta,
including all statistical reports. Alberta health statistics can be found at
http://www.health.gov.ab.ca/resources/publications/index.html#8.
567.
Alberta Health and Wellness, in collaboration with its Regional Health Authorities,
develops print resources on human sexuality and methods of birth control. This
information is to be used by sexual health professionals, public health nurses, and
community organizations to provide information on fertility control and counseling
services. This information is also available to the public.
568.
Alberta Health and Wellness is involved in the Aboriginal Youth Suicide Prevention
Strategy, however results are not yet available.
Article 7: Protection against torture
569.
All women in Alberta have access to safe pregnancy terminations through either public
hospitals or accredited private clinics. In Alberta the cost of a pregnancy termination is
not a barrier to access since these procedures are publicly funded under the Alberta
Health Care Insurance Plan. There is no cap on the number of procedures performed each
year. The reason for pregnancy is not a factor that determines access.
570.
In 1996, three major funding agencies, the Medical Research Council of Canada, the
Natural Sciences and Engineering Research Council, and the Social Sciences and
Humanities Research Council, issued a new common policy entitled the Tri-Council
Policy Statement: Ethical Conduct for Research Involving Humans. While the rigorous
policy statement and guidelines are not mandatory, Alberta, through government,
universities, and research institutions, has adopted and incorporated the ethical principles
and articles of the Tri-Council Policy Statement.
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Article 9: Right to liberty and security of person
571.
Federal legislation concerning anti-terrorism has created significant police powers to
arrest, including arrest without a warrant in some cases. The legislation provides for
review by judiciary and reporting by police to provincial ministers responsible and by
ministers to the public. Alberta Justice and the Alberta Solicitor General comply by
publishing annual reports on usage of these provisions.
572.
The Mental Health Act was proclaimed in force January 1, 1990. This Act sets out
processes that must be followed in order for a person suffering from a mental disorder to
be admitted to and detained as an involuntary patient in a designated mental health
facility. Patients must be informed of the reasons for their detention and of their rights.
These rights include the right to obtain legal counsel; to apply to an independent review
panel for cancellation of their admission certificates or renewal certificates; and to appeal
the decision of a review panel to the Court of Queen's Bench. A Mental Health Patient
Advocate is appointed to investigate complaints from, or relating to, formal patients.
Article 10: Treatment of persons deprived of liberty
573.
The Alberta Corrections Act C-29 RSA 2000 and, specifically, Section 7 of the
Correctional Institution Regulation OC 205-2001, requires employees to be firm and
impartial when managing offenders incarcerated in correctional centres. The legislation
specifically proscribes the use of humiliating tactics or harassing techniques, and states
that inmates must be dealt with in a manner designed to encourage their self-respect and
personal responsibility.
574.
As well, Alberta Correctional Services has a considerable number of policies that
reinforce the need to treat incarcerated offenders equitably. Policies include appeal
mechanisms to correctional and third party officials, and reviews of staff decisions by
senior correctional staff. Training initiatives are predicated on policy directives. All new
and incumbent staff receive complete training on all aspects of policy, including
approved security and disciplinary methods, offender management techniques, conflict
resolution and protections available to offenders.
575.
The Solicitor General administers the Police Act P-17 RSA 2000, which sets out a
complaint mechanism under Part 5 for the public. A complaint respecting a police service
or a police officer may be laid, which can proceed to the Law Enforcement Review
Board, an independent tribunal that determines the validity of the complaint. If it is
determined during the course of the complaint process that a criminal offence has
occurred, the matter must be referred to the Minister of Justice and Attorney General to
determine whether charges should be laid.
576.
A conditional sentence is a sentence of incarceration that the judiciary has directed be
served in the community. It has been utilized in Alberta since sentencing reforms in
September 1996 and has been widely accepted and used by the judiciary.
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Other Alternatives to Incarceration
577.
The Adult Alternative Measures Program commenced operation in February 1997, to
divert selected adult offenders involved in minor offences from the formal court process.
The House Arrest Program is an alternative to incarceration for select, intermittentsentenced offenders (weekend servers). Inmates who participate must adhere to the
following conditions: mandatory curfews and mandatory participation in Alberta Justice
programming or supervised community service work during the time they are sentenced
to serve. The Community Surveillance Program is an intensive, highly structured form of
supervision for inmates on temporary absence from correctional institutions. It
incorporates the use of mandatory curfews and either full-time employment or
participation in Alberta Justice programming for select, low-risk, minimum-security
offenders. Offender community service work crews were involved in numerous
community work projects across the province. Many of these projects were completed in
collaboration with other government ministries, municipalities or non-profit groups.
578.
A unique First Nations Court and Restorative Justice Initiative has been developed at the
Alexis First Nation where Provincial Court Judges and Stony Plain Crown prosecutors
share information about the criminal justice system and court procedures with the Alexis
Justice Committee, Elders, and other community members. In turn, judges and
prosecutors have the opportunity to build relationships with the Aboriginal community
and learn about its culture, traditions, and social resources. The court, working with the
community and justice stakeholders, has incorporated court-ordered supervision of
offenders, interim reviews, and accountability to the community into the Alexis
Restorative Justice process. The Justice Committee acts as a sentencing resource that
augments pre-sentence reports by identifying cultural and social resources available at the
reserve. The Justice Committee also assists the probation officer in monitoring the
probation of some offenders, and in providing the court with community reviews of the
probationer's compliance. These interim reviews are an important and unique component
of the Alexis Restorative Justice process.
579.
The Blood Sentencing Panel, officially named “Aisiimohki”, which means "to discipline"
in the Blackfoot language, was developed as a community options program. It operates
under the Blood Tribe Department of Health and is comprised of professionals from the
Blood Tribe departments including Education, Corrections, Health, and Housing. Each
panel involves an Elder as the panel relies upon and promotes traditional values. The
process used by the panel is formal and focused. The accused goes through an initial
screening process and an assessment process. A structured program is subsequently
developed. The Sentencing Panel provides the details of the program in the form of a
written report to the Crown prosecutor. The prosecutor may then ask the Court to
incorporate the proposed program into the terms of a probation order. To support and
encourage rehabilitation, the offender is provided assistance and direction through the
process. A condition of being referred to the Aisiimohki is that the accused must plead
guilty in court and accept responsibility for the criminal act. The Blood Tribe has also
established the Blood Tribe Youth Justice Committee, which received ministerial
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sanction pursuant to section 18 of the Youth Criminal Justice Act. This initiative is also
managed by the Blood Tribe Department of Health and is closely related to the Blood
Tribe Sentencing Panel.
580.
The Edmonton Crown Prosecutors' Office and the Aboriginal Justice Initiatives Unit have
started working with Aboriginal justice stakeholders and community partners in the
Edmonton area to develop an Adult Aboriginal Justice Committee. Similar in concept to
the Edmonton Native Youth Justice Committee, the proposed committee will be made up
of community volunteers and Elders and will provide a sentence advisory role to the
Provincial Court of Alberta in Edmonton when Aboriginal offenders are involved.
581.
The Lethbridge Crown Prosecutors' Office has also been closely involved in developing
an innovative urban Aboriginal initiative, the Lethbridge Urban Sentencing Circle. In
November 1999, two young Aboriginal residents became the first accused persons to be
brought before the Circle. The process was inaugurated with the cooperation of the
Provincial Court of Alberta, the Lethbridge Crown Prosecutors' Office, the Lethbridge
Police Service and Lethbridge Community College. The Circle continues to operate
successfully.
Youth Justice
582.
Alberta's Youth Justice Committee Program was recognized with a gold award from the
Institute of Public Administration of Canada (IPAC) in August 2002. Youth justice
committees in communities across the province work to resolve legal conflicts through
alternative measures, community service work and meeting the victims and community
members. A five-member jury from IPAC, which is a non-profit organization that
provides networks and forums dedicated to fostering excellence in public service,
selected Alberta youth justice committees for the gold award from among 132 federal,
provincial and municipal government entries.
583.
Alberta Solicitor General and the Alberta Mental Health Board work together on an
ongoing basis to ensure enhanced mental health services for young offenders. The intent
is to provide timely assessment and treatment of young offenders with mental health
issues. Staff will be provided with the knowledge and ability to appropriately respond to
youth with mental health problems. A Mental Health Diversion Committee has been
established to examine ways to divert youth with mental illness from the formal criminal
justice system.
584.
Many initiatives have been developed to address the needs of youth offenders, including,
for example:
•
Alberta
Mental Health units have been created in the Calgary and Edmonton Young Offender
Centres. These units feature an enhanced staffing pattern that reduces the need for
confinement.
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•
Programs to meet the therapeutic needs of female offenders have been introduced
which complement existing programs by providing a clinical, more intensive
approach.
•
Native Elders have been contracted individual counselling to Aboriginal youth. The
Correctional Services Division contracts the operation of two adult Aboriginal
minimum-security camps and one community correctional centre. Aboriginal groups
hold the contracts and services are provided to Aboriginal offenders. Additionally,
the division contracts an Aboriginal Adolescent Substance Abuse Treatment Centre
and an Aboriginal young offender group home. Aboriginal Elders and Aboriginal
community members attend correctional and young offender facilities regularly to
provide cultural programs to offenders. These programs focus mainly on Aboriginal
culture and spirituality.
•
Additional training opportunities are available to employees and contracted staff in
order to enhance their knowledge and ability to appropriately respond to youth with
mental health problems.
•
Community transition workers have been put in place in Calgary and Edmonton to
assist youth leaving custody.
585.
In anticipation of new sentencing options under the Youth Criminal Justice Act, Alberta
piloted Youth Attendance Centres in Edmonton and Calgary. These non-residential
facilities house a variety of programs to address the non-residential sentencing option,
however, this option is only available in the two cities where the Youth Attendance
Centres are located.
586.
Policies and Procedures that guide the administration of youth justice in the community
and in youth custody facilities have been revised to reflect changes in federal legislation.
The federal legislation includes provisions for provincial and territorial jurisdictions to
offer programs necessary for certain sentences, or to “opt out”; advising youth justice
court judges that the sentences are not available. Alberta has chosen to offer most
sentences that contain this provision, including non-residential orders, intensive support
and supervision, and intensive rehabilitative custody and supervision.
587.
Alberta's first comprehensive court facility for child victims opened in Edmonton
Provincial Court to help children who have to testify at criminal trials. The child-friendly
facilities consist of a waiting room with its own washroom and courtroom with a back
entrance for the child. The facilities prevent the child victim from seeing the accused
while testifying and aim to make the court process less intimidating for children. The
courtroom and waiting room are wired with two-way communication for the rare
instances where a child is unable to testify in the courtroom. The project was the result of
a partnership between Alberta Justice, Alberta Solicitor General, the Edmonton Police
Service, the Zebra Child Protection Centre and the John Howard Society's Victims'
Assistance Program.
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588.
In February 2000, the Lethbridge Fetal Alcohol Spectrum Disorder Committee was
created to focus on FAS issues in the justice system. Committee members represent the
police, prosecution, probation, defence bar, two school boards, the medical profession,
Aboriginal people and provincial and municipal agencies involved with child welfare
issues. A process was established to identify those cases in which the needs of society for
protection and the needs of the FAS sufferer for support can be met by early intervention
and deployment of community resources to provide a daily living plan for the youth as
part of any criminal justice system outcome required by the nature of the case. In
addition, members of the Calgary Crown Prosecutors Office have participated in FAS
training sponsored by the Calgary Police Service.
589.
The Piikani Nation established the P.E.I.gan Nation Youth Traditional Justice Circle
which was sanctioned as a Youth Justice Committee pursuant to section 18 of the Youth
Criminal Justice Act. The Circle functions in accordance with Piikani traditions and
receives youth referrals at various stages including pre-charge diversion, post-charge
diversion or after a guilty plea is entered. In each case, the Circle convenes and a report is
submitted to the prosecutor for presentation to the court. The Circle utilizes a very formal
process and relies on volunteers including tribal Elders. The Lethbridge Crown
Prosecutors' Office continues to work closely with the Piikani Nation on this successful
initiative.
590.
Crown prosecutors from the Red Deer office have met with community Aboriginal
service agencies to establish a Youth Justice Committee for Red Deer Aboriginal youth.
Currently, several Elders and community members have expressed interest in functioning
in a community justice forum format and accepting diversion referrals from the Crown's
office.
Article 14: Fair trial rights
591.
Alberta's small claims limit was raised to $25,000 to improve Albertans’ access to justice
in civil court. People are now able to pursue civil claims of up to $25,000 in Provincial
Court, Civil Division, rather than in the Court of Queen's Bench, which has more
complex procedures and generally requires a lawyer. The increase took effect
November 1, 2002 and is the highest small claims limit in Canada.
592.
The Victims Restitution and Compensation Payment Act was passed in November 2001.
The Act allows civil courts to order that illegally obtained property and profits of illegal
activities be returned to their rightful owners. It also allows civil courts to order that
assets owned by a convicted offender be transferred to the victim up to the value of a
restitution order. In cases where no victim can be found, or where the offence committed
has no identifiable victim (such as drug trafficking and gaming offences), proceeds and
property may be paid to programs that support victims of the type of crime that has been
committed, or to the Alberta Victims of Crime Fund. The Act has not yet been
proclaimed.
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593.
The Protection Against Family Violence Act was passed in 1998 and proclaimed in force
June 1, 1999. It focuses on protection rather than punishment and, through the
Emergency Protection Order (EPO), allows police to remove the abusive family member
from the home. In 2002/03, training to victim services workers, court staff, Crown
prosecutors and police in Calgary, Fort McMurray, Grande Prairie and Lethbridge was
provided.
594.
Legislative reforms have been made that increase the independence of the sitting and
presiding justices of the peace, including establishing an independent Judicial
Compensation Commission that publicly examines and recommends their pay and
benefits.
Aboriginal initiatives
595.
Promotion of culturally sensitive approaches to prosecutions: A three-phase Aboriginal
Cultural Understanding training strategy has been developed. Phase III focuses on the
legal issues related to dealing with Aboriginal people in court.
596.
The Provincial Court of Alberta sits at the Siksika Nation, and is served by a dedicated
Crown prosecutor from the Calgary Crown Prosecutors' Office. This arrangement permits
the Crown prosecutor to form a close working relationship with the Nation and supports
the provision of culturally sensitive prosecution services. While every effort is made to
have a judge of Aboriginal heritage preside at Siksika Nation, there may be instances
where it is not possible and another judge would be assigned to the hearing.
597.
The Southern Alberta Institute of Restorative Justice started in the spring of 2001. The
Lethbridge Crown office was instrumental in developing this initiative with both Alberta
Justice and Lethbridge Community College providing funding.
598.
The Tsuu T’ina Nation Court and Peacemaker Initiative blends Aboriginal justice
traditions, including an Office of the Peacemaker, with the Provincial Court of Alberta.
The judge, Crown prosecutor, judicial clerks and peacemakers are all Aboriginal people.
The Tsuu T’ina Court has jurisdiction over offences that have taken place on the Tsuu
T’ina Nation. The first sitting of this court was on October 6, 2000. Local Peacemakers
and Elders are directly involved in the initiative and are referred cases that have been
diverted from the criminal justice system as well as cases that require dispute resolution.
Cases can be referred to the Peacemaker’s Office by the Provincial Court, the police,
schools, the Tsuu T’ina Band Administration or by a community member.
599.
As recommended by the Cawsey Commission in the publication Justice on Trial - Report
of the Task Force on the Criminal Justice System and Its Impact on the Indian and Métis
People of Alberta (1991), the Chief Judge of the Provincial Court of Alberta or his
designate has the authority to supervise Aboriginal Justices of the Peace. Supervision by
the Chief Judge of the Provincial Court enhances the judicial independence of these
positions. Since the completion of the report, three Provincial Court judges of Aboriginal
heritage have been appointed.
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600.
Regular sittings of Provincial Court are held at the Dene Tha First Nation in Assumption
(Chateh Reserve) throughout the year. This substantially reduces travel for residents who
would normally be required to attend court in High Level nearly 100 kilometers away.
An agreement is also in place for the Fort McMurray circuit court to have Provincial
Court sittings at the Janvier Nation as required.
Article 17: Right to privacy
601.
Alberta's Health Information Act, proclaimed into force in 2001, establishes the rules for
the collection, use, disclosure, and protection of health information primarily in the
publicly funded health sector. The Act provides an individual with the right to access
his/her own health information, to request correction or amendment of that information,
and access to a third party arbiter in situations where the individual believes that health
information was inappropriately collected, used, disclosed or protected.
602.
The privacy of people receiving social assistance was covered in the provisions of
Alberta Human Resources and Employment’s new Income and Employment Supports
Act. This Act was passed this year and proclamation is expected in 2004. The Act
requires any person employed in assisting the administration of the Act to preserve the
confidentiality of personal information which comes to the department’s attention under
the Act. The collection, use and disclosure of this information is restricted.
Article 23: Protection of the family, right to marriage and equality
between spouses
603.
There are many parent education programs aimed at educating parents on issues around
parenting after separation and/or divorce, and learning new skills to help reduce the
conflict between the separated parents. They include the Parenting after Separation
seminars, the Focus on Communication in Separation program and the Communications
in Conflict program.
604.
The Dispute Resolution Officer Pilot Project began on December 1, 2001 in the Calgary
Court of Queen's Bench. A similar project, the Child Support Resolution Officer Pilot
began in Edmonton on September 1, 2002. This project is also mandatory for all selfrepresented parents raising an issue with respect to child support in an application.
Through the use of either the Dispute or the Child Support Resolution Officers, parents
are benefiting from the experience of the pilot projects and saving time and money by not
having to participate in a lengthy court process
605.
The Judicial Dispute Resolution (JDR) Pilot Project became an ongoing program in
Provincial Court, Family Division. JDR helps people involved in family law and child
protection matters in Provincial Court resolve their concerns without the need for a trial.
A judge assists the parties in negotiating a resolution, or if resolution is not possible,
offers an opinion about what his or her decision would be if that information were heard
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in a trial. The judge's decision is not binding, but is provided to help the parties with their
settlement negotiations.
606.
In May 2003, the provincial government introduced Bill 45, the Family Law Act in the
provincial Legislature. The legislation consolidates provincial family legislation while
updating it to reflect current legal practices and making it easier for Albertans to
understand. Most amendments fall into the following areas: guardianship; parenting
(formerly custody and access); contact with a child; child support; spousal and adult
interdependent partner support; and parentage. The legislation will also abolish seldomused legal actions that no longer reflect current legal or social understandings of personal
relationships.
607.
The Aboriginal Family Courtwork Program is funded entirely by the Alberta
Government, and provides an opportunity for families appearing before the Provincial
Court of Alberta Family Court to have access to culturally appropriate, reliable assistance
during the court process. The Family Courtwork Program is available at all family court
circuit points in Alberta. In areas with a greater concentration of Aboriginal people and in
larger population centres, courtwork services are provided for each court sitting. In other
areas, courtworkers attend court on an "on-call" basis, if a client requests that they be
present.
608.
The Alberta Ministry of Children’s Services was established in 1999 and signified the
commitment of government to supporting the best interests of children, youth and
families. Core businesses of the Ministry are:
•
•
•
609.
Promoting the development and well-being of children, youth and families
Keeping children, youth and families safe and protected
Promoting healthy communities for children, youth and families.
The Adult Interdependent Relationships Act was introduced in the legislature in May
2002. The legislation amends 68 Alberta laws to address the legal needs of unmarried
Albertans involved in committed, interdependent relationships. The act came into force
June 1, 2003. The act covers a range of personal relationships that fall outside the
traditional institution of marriage, including committed platonic relationships where two
people agree to share emotional and economic responsibilities.
Article 24: Rights of the child
610.
Alberta
Reciprocal agreements enable the Maintenance Enforcement Program to collect and
disburse support payments on behalf of Albertans who have support orders with someone
who lives outside of the province. New agreements were reached with the U.S., the
Slovak Republic, the Czech Republic and the Republic of Poland. Alberta also has
reciprocal agreements with 30 jurisdictions, including all Canadian provinces and
territories, Australia, Germany, Norway, New Zealand, Austria, South Africa, and the
United Kingdom.
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611.
The province of Alberta is committed to fostering healthy pregnancies and positive birth
outcomes. As women plan to have children, and while they are pregnant, they have
universal access to prenatal health care provided by physicians, registered midwives, and
community-based prenatal education programs. Information/support to assist them in
practicing healthy behaviors during pregnancy related to nutrition and use of tobacco,
alcohol and other substances is also available. More vulnerable populations may access
specialized supports such as nutritional supplements for low-income pregnant women,
culturally appropriate counseling, and support programs. Through physicians, registered
midwives, and Regional Health Authorities women have access to publicly funded
intrapartum (labor and delivery) care and a wide range of postnatal services and programs
to support a healthy start in life and provide care to newborns with health concerns.
612.
As noted in Article 9, the Child, Youth and Family Enhancement Act clarifies and
strengthens the involvement of Aboriginal communities in planning for their children.
The Act identifies that uniqueness of culture, heritage, spirituality and traditions be
respected and considered and that preserving a child’s cultural identity be given
importance. For more information, please refer to the Children’s Services website at
http://www.child.gov.ab.ca/whoweare/childwelfareactreview/page.cfm?pg=index.
613.
Detailed statistical information regarding the rights of children can be found in Canada’s
responses to the list of issues of the Committee on the Rights of the Child, available at:
http://www.pch.gc.ca/progs/pdp-hrp/docs/crc-2003/rep_e.cfm.
614.
In 1997, the Alberta Task Force on Children Involved in Prostitution was established to
review the issue of juvenile prostitution. A key recommendation of the Task Force was
that legislation be developed to protect children from abuse. Alberta’s Protection of
Children Involved in Prostitution Act was proclaimed February 1, 1999. Amendments to
the Act were proclaimed March 15, 2001. The Act recognizes that children and youth
under the age of 18 years who are exploited by prostitution are victims of child sexual
abuse and are therefore in need of help and protection.
615.
The Act enables police and child protection workers to apprehend children engaging in or
attempting to engage in prostitution. A range of community support programs is in place
to help children who may wish to leave prostitution. The amendments proclaimed in
2001 enhanced the support provided to children and ensures that their legal rights are
protected. The amended Act extended the length of the initial confinement period from
three days to a maximum of five days each. In addition, a process to allow access to legal
representation was also developed.
616.
The review of Alberta’s Child Welfare Act was announced by the Honourable Iris Evans,
Minister, Alberta Children’s Services on May 23, 2001. The Child Welfare Amendment
Act received Royal Assent May 16, 2003 and the new Child, Youth and Family
Enhancement Act will likely be proclaimed in 2004. This Act provides the legislative
base for the provision of a range of services to children and families in cases where
children are found to be “in need of protective services”. The rights of children have
been enhanced in this Act through a requirement that the Director of Child Welfare
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consolidate and inform children of their procedural rights under the legislation. New
Directions in Child Welfare: Overview of Significant Changes in the Child, Youth and
Family Enhancement Act can be viewed at (Go to Updates Section)
http://www.child.gov.ab.ca/whoweare/childwelfareactreview/page.cfm?pg=index.
Article 25: Civic responsibility and political participation
617.
In Alberta, offenders in remand, those serving ten days or less, or those sentenced for
non-payment of fines may vote in provincial elections.
618.
The Aboriginal Policy Framework (APF) reflects the principle that enhancing the wellbeing of Aboriginal Albertans is a government-wide responsibility. While respecting the
responsibility of the federal government to provide services to First Nation communities
and persons, the APF also contains the principle that Aboriginal people have access to
provincial public services that are enjoyed by other Albertans in communities of similar
size and geographic location.
619.
Among the activities being undertaken in support of this principle is the development of
an Aboriginal policy “checklist’ to review existing and future policies to ensure that they
meet the needs of Aboriginal people. In 2003, over 600 provincial employees were
provided with Aboriginal cultural awareness training as part of an ongoing initiative to
enhance the understanding within the public service of the cultural heritage and diversity
of Aboriginal people in Alberta.
Article 27: Religious, cultural and linguistic rights
620.
In September 2000, the Government of Alberta approved a government-wide Aboriginal
Policy Framework (APF) entitled “Strengthening Relationships” containing a number of
principles and commitments to action to guide the province’s relationships with
Aboriginal people and to enhance their socio-economic well-being. One of the principles
in the APF is the Government of Alberta recognizes, in principle, the inherent right of
self-government. The APF goes on to say that the Government of Alberta will focus its
efforts on establishing self-government arrangements with Aboriginal people living on
recognized Aboriginal land bases.
621.
Since September 2000, the Government of Alberta has participated with Canada and the
Blood Tribe in discussions pertaining to the governance of child welfare related matters
and with Canada and Treaty 8 First Nations in exploratory discussions regarding selfgovernment.
622.
The Aboriginal Policy Framework recognizes that the languages, cultures, traditions and
values of Aboriginal people in Alberta contribute positively to the province’s vitality and
that cross-cultural awareness and understanding is an important component of an
inclusive Alberta society.
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623.
Alberta
Alberta Aboriginal Affairs and Northern Development provides grants to communities
and organisations directed to building cross-cultural awareness and the preservation of
Aboriginal culture. Since 1995, the department has provided $1,855,000 in grants for this
purpose.
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British Columbia
Article 2: Equal rights and effective remedies
624.
Changes to the Human Rights Code were introduced in 2003 to make the human rights
system more accessible, timely and efficient. The new system eliminated the Human
Rights Commission in favour of an independent Human Rights Tribunal that is directly
responsible for receiving, investigating and adjudicating cases. The Tribunal emphasizes
mediation, to encourage faster and less expensive resolution of complaints. The Ministry
of Attorney General retains responsibility for human rights education.
625.
In concert with the establishment of the Tribunal, government established a contractual
relationship with the British Columbia Human Rights Coalition to deliver education and
training programs to the public, and with the Community Legal Assistance Society to
provide legal advice and assistance to complainants and respondents.
626.
The Ministry of Community, Aboriginal and Women’s Services has developed a threestep model called the Critical Incident Response Model, which focuses on facilitating a
dialogue between key community representatives on racism and hate and a protocol to
address such issues. In 2003, the ministry funded a province-wide tour with the
BC Human Rights Coalition (BCHRC). Two representatives travelled around the
province to talk about racism, and the process to file a human rights complaint with the
Human Rights Tribunal.
627.
The Legal Services Society is funded to provide legal aid in British Columbia. The
Society has restructured its delivery model and has developed creative new approaches
such as providing family duty counsel. Government continues to provide programs
worth $25 million to assist families in solving legal disputes outside the court system.
628.
The Learning Services Branch of the Public Service Agency provides the following
courses to civil servants: Discrimination Prevention Workshop, Aboriginal Cultural
Awareness, Culturally Responsive Service Delivery, Discover Ability, Valuing and
Welcoming Diversity in the Workplace. The Discrimination Prevention Workshop is
mandatory for all new employees.
Article 3: Equal rights of men and women
629.
24% (19 of 79) of Members of the Legislative Assembly are women (including Cabinet
and Opposition members). Of the 28 members of the Executive Council (the Premier
and Cabinet Ministers), 7 are women (25%).
630.
Of 182 local governments, women lead 38 (20.8%) including:
•
City Mayors (7 of 45)
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•
•
•
•
•
•
•
•
District Mayors (13 of 49)
Island Municipality (1 of 1)
Resort Municipality (0 of 1)
Town (3 of 15)
Townships (0 of 3)
Village (8 of 40)
Regional District Chair: 6 of 27
Indian Government District Chief Counsellor: 0 of 1.
631.
Aboriginal Community Leadership (Band Councils): 8 of 39 Nisga'a Lisims Government
elected officials were women. As of 2002, 20% of Band Council Chiefs were women (39
to 197).
632.
With respect to the question about assessment of the impacts of budget cuts on social
programs, the Ministry of Human Resources does not collect client information with
respect to visible minorities and aboriginal status. It is not possible nor has it been the
ministry's desire to single out and identify its caseload by visible minority or aboriginal
status.
633.
The Government of British Columbia, through the Ministry of Community, Aboriginal
and Women’s Services:
•
•
•
•
•
•
•
634.
provides $26.5 million in funding for transition houses, including second-stage
housing and safe homes, as well as individual and group counselling;
funds community agencies throughout the province working in the areas of
trafficking and sexual exploitation of women, low-income women, violence against
women, employment and health care;
develops policy in the area of preventing violence against women and enhancing their
safety;
is implementing a child care strategy for the province to ensure accessible, safe and
affordable child care;
through the Vancouver Agreement, creates social and economic opportunities for
women including improving health, enhancing public safety and increasing
employment;
provides a service for low-income women with children who are leaving transition
houses to ensure that women leaving abusive relationships who do not have safe,
permanent housing receive priority when affordable housing units become available;
contributes to projects undertaken by the Federal/Provincial/ Territorial Status of
Women Forum, including “Women’s Economic Independence and Security” (2001),
“Assessing Violence Against Women: A Statistical Profile” (2002), and “Workplaces
that Work” (2003), which sets out a strategy for how employers can encourage
employment and retention of women in the workplace.
The British Columbia government included gender equity as a principle of the new
British Columbia policy on Sport and Physical Activity and as eligibility criteria for
provincial sport organization funding. It has also provided funding to Promotion Plus, an
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agency that works specifically to promote gender equity and participation for women and
girls in sport and physical activity. Promotion Plus aspires to develop an equitable sport
system for women and girls in British Columbia by increasing levels of participation,
leadership and policies through Recognition, Consultation, Education and Development
programs.
635.
The British Columbia government supported Promotion Plus' “Instrumental Guidance
and Advocacy” for gender equity programs for sport and recreation - including its
involvement in a landmark BC Supreme Court decision in respect to gender equity in
Coquitlam's municipal recreation facilities.
Article 6: Right to life
636.
Statistics on birth rates, infant mortality and suicides are provided below:
Birth rate by gender
1995
Gender
Live
Rate per
Births 1000
population
Male
24,111 6.37
Female
22,557 5.96
Unknown
Total
46,668 12.33
Infant mortality by gender
1995
Gender
Deaths
Rate per
1000 live
births
Male
151
3.24
Female
124
2.66
Unknown
Total
275
5.89
2001
Rate per
1000
population
20,734 5.06
19,662 4.79
2002
Rate per
1000
population
20,604 4.98
19,314 4.66
40,396
39,918
Live
Births
9.85
Live
Births
9.64
2001
Deaths
Rate per
1000 live
births
86
2.13
76
1.88
2002
Deaths
Rate per
1000 live
births
108
2,71
70
1.75
162
178
4.01
4.46
Suicide rate
1995
Gender Deaths Crude
rate
Male
406
0.11
Female 109
0.03
Total
515
0.14
637.
Deaths
334
103
437
2001
Crude
rate
0.08
0.03
0.11
Deaths
320
91
411
2002
Crude
rate
0.08
0.02
0.10
BC Housing provides affordable housing for the homeless or those at risk of
homelessness (e.g. individuals with alcohol/drug dependencies, with HIV/AIDS, and
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youth), persons with a mental illness, and seniors and other individuals with special
needs, many of whom are women; and shelter aid for elderly renters, of which the
majority of recipients are female (77 percent).
Status Indians
638.
The following information is taken from a regional analysis of health statistics for Status
Indians for the period 1991- 2001, prepared by the Vital Statistics agency of the Province
of British Columbia.
Births
639.
Over the period 1991 to 2001, one out of every 14 babies born in the province was a
Status Indian. There were 34,731 Status Indian live births, or 23.6 per 1,000 Status Indian
population, more than twice the rate for other residents.
640.
The Status Indian population accounted for less than one out of every 12 low birth weight
births in the province over the 11 year period. One out of 10 premature live births in B.C.
in 1991-2001 was a Status Indian baby. The Status Indian caesarean section rate was 20%
lower than the rate for other residents for 1991-2001.
641.
From 1991 to 2001, more than one in four teenage mothers in the province was a Status
Indian. The Status Indian live birth rate for teenage mothers was four and a half times the
rate for other residents.
642.
There has been a significant decrease in infant mortality in the Status Indian population.
Status Indian infant mortality rate showed a dramatic decline from 14.7 infant deaths per
1,000 live births in 1995 to 4.0 in 1999 and 2000, and 4.3 in 2001. Infant mortality also
declined in this time period for other residents, dropping from 5.2 to less than 4.0.
Fetal Alcohol Spectrum Disorder (FASD)
643.
British Columbia has been considered a leader in FASD prevention, support and
intervention. There are key provincial initiatives launched by government in recent years
such as the Aboriginal Early Childhood Development programs and Building Blocks
programs located throughout the province. The British Columbia government has
approved the first comprehensive plan for responding to FASD in Canada.
644.
This strategic plan for British Columbia summarizes the current research on FASD and
identifies the resources available from all levels of government. The intent of the plan is
to provide policy makers, service providers, community groups and researchers with a
map of the multi-layered and multi-faceted work involved in the prevention, intervention
and support for FASD thereby setting the framework for more solutions to be found.
645.
In 2001, British Columbia joined the Prairie Northern FAS Partnership. Now called the
Canada Northern FASD Partnership, this is an alliance among the four western provinces
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and three territories. The goal is to partner in the development and promotion of an interprovincial/territorial approach on the prevention, intervention, care and support of
individuals affected by FASD.
646.
British Columbia has entered into a two year partnership with the Assante Centre for
Fetal Alcohol Syndrome with funding support from the federal government to develop
and implement a best-practice service delivery model for youth before the court
suspected of having an alcohol related diagnosis.
Preventing Suicide in First Nations Communities
647.
Between 1999 and 2001, several small-scale, community-based youth suicide prevention
projects were funded by the Ministry for Children and Families (through Mheccu, UBC).
The purpose of these projects, some of which were implemented in First Nations
communities, was to implement comprehensive approaches to youth suicide prevention
based on the best practices identified by White & Jodoin (1998). First Nations
communities adapted the strategies to fit their context and placed significant emphasis on
developing and implementing culturally relevant training, strengthening relationships
between elders and youth, and teaching and renewing traditional healing practices.
648.
A copy of the Final Evaluation Report, which summarizes key learnings from this
initiative, is available from: http://www.mheccu.ubc.ca/SP/publications/.
Article 7: Protection against torture
649.
British Columbia has introduced a set of Core Programs for inmates of provincial
correctional centers that are intended to promote long term behavioral change in these
individuals. Programs are tailored for individual inmates, based on risk and needs
assessment of offenders. These programs include a Violence Prevention Program, a
Respectful Relationships Program, a Sex Offender Maintenance Program, and a
Substance Abuse Management Program as well as education upgrading programs. These
programs reduce the risk that these individuals might re-offend when they are returned to
the community.
650.
There have been no new measures with regard to medical experimentation or training of
medical personnel, law enforcement officials or prison guards during the reporting
period. Abuse of prisoners is not permitted within the British Columbia corrections
system. Abuse allegations are investigated internally and may be reviewed by oversight
agencies such as the office of the Provincial Ombudsman and the Investigation,
Inspection and Standards Office of the Ministry of Solicitor General.
Article 9: Right to liberty and security of person
651.
In 1997/98 changes were introduced to the process for making complaints concerning
police conduct. Previously the Police Complaints Commission had the responsibility
both for setting policy and standards for policing (other than for the RCMP, which is
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under federal jurisdiction), as well as for receiving and oversight of complaint
investigations. Following the recommendation of a Commission of Inquiry, the policy
and standards function has moved to the direct responsibility of the province. An
independent Police Complaints Commissioner is now in place and has increased
authority in the oversight of complaint investigations. The actual investigation of a
complaint is conducted by the police department directly involved, or another
department. The decision on which agency will investigate is made by the Complaint
Commissioner. The Complaint Commissioner also has authority to return the
investigation report for further work if not satisfied with the quality of the investigation.
It is also within the authority of the Complaint Commissioner to call for a public hearing
if it is deemed in the public interest.
652.
All persons detained in corrections facilities are detained pursuant to detention orders
imposed by the court or by federal immigration officials and are supported by proper
legal authority and documentation. All prisoners have access to the courts and oversight
agencies for the review of their detention.
Article 10: Treatment of persons deprived of liberty
653.
In 1999 several hundred Chinese migrants arrived illegally by boat and container ship on
the shores of British Columbia. At the request of Citizenship and Immigration Canada
(CIC), over 400 adult migrants were detained at provincial correctional facilities. During
the period of detention, migrants were provided with a variety of services, including
healthcare, English as a Second Language, recreation, institutional work opportunities,
counselling, interpreter/translation services and communication with their families in
China was facilitated. Staff at facilities housing migrants received cultural training and
were provided access to Chinese language training. The International Red Cross
provided independent regular monitoring of detention conditions. The United Nations
High Commissioner for Refugees also monitored conditions. All of the migrants were
either returned to China or granted refugee status by mid 2001.
654.
With regard to treatment of accused as compared to convicted persons, there are no new
measures to report. Accused persons are treated similarly and receive the same services
as convicted persons with the exception that accused persons are not required to perform
work (except where they consent), and they are unable to access the same level of
programming as convicted persons as they are generally incarcerated for short periods of
time-generally less than 30 days. Accused persons are also held separate and apart from
convicted persons.
655.
Specific measures applied during detention:
•
•
•
Convicted persons are categorized according to risk, based upon established criteria.
The disciplinary system for offenders is codified and subject to the principles of
administrative law and independent review or judicial review.
Solitary confinement is established in regulations and is subject to a review process,
internally and by external oversight agencies.
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•
•
•
•
Convicted and accused persons are entitled to receive and send communications
through the postal service (the Corrections Branch pays postage for 7 letters per
inmate per week) subject to limitations for institutional security and protection of the
public.
Accused and convicted persons have regular telephone access through telephones
installed on inmate living units to make outgoing calls. A new phone system makes
more telephones available and gives enhanced access to telephones to inmates. The
system is limited only to the point of maintaining institutional security and protection
of the public.
Accused and sentenced persons have fully subsidized access to legal counsel and
designated oversight agencies.
Medical services are equally available to accused and convicted persons. On the
basis of identified need, basic dental and psychological services are available to
offenders.
Psychiatric facilities
656.
The Mental Health Act RCBC 1996 ch 288 outlines the conditions under which a person
may be detained in a psychiatric facility.
657.
A person may enter a psychiatric facility as a voluntary or an involuntary admission. An
involuntary admission requires a medical certificate by a physician, in a specified format.
A second medical certificate must be completed by another physician within 48 hours.
The condition of the involuntary patient must be reviewed before the end of the first one
month period from admission, at which point the person’s stay may be extended, by one,
three or six month periods. The involuntary patient, or a person acting on their behalf,
may appeal this decision to a review panel, which is made up of a chairperson, a
physician appointed by the facility, and a third person appointed by the patient. A patient
or a person on behalf of the patient may appeal to the court if they feel that there is not
sufficient reason or legal authority for the medical certificate which admitted the patient.
658.
A person can also be detained in a hospital for up to 48 hours on a warrant from the
provincial court for the purpose of a medical examination to determine whether they
should certified as an involuntary patient. This must only be used if there is no other way
to examine the patient.
659.
The Act outlines the conditions under which a patient may be detained in an emergency.
A police officer may be authorized to apprehend and take a person to a physician for
examination if the person is acting in a manner likely to endanger that person’s own
safety or the safety of others and the person has an apparent mental disorder. The person
must be released if a physician does not complete the medical certificate required for
admission to a facility. If there are concerns about the mental condition of a person
imprisoned, detained in a correctional centre or youth custody centre, two medical
certificates are required, following the requirements for an involuntary admission. On
determination of a complete or partial recovery, the person may be returned to the
correctional centre, or be discharged.
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660.
661.
A person may also enter a psychiatric facility if, under the Criminal Code they are found
not criminally responsible on account of a mental disorder or is found unfit to stand trial
on account of a mental disorder. If they are order to be detained in a mental health
facility, the person must receive appropriate care and treatment as authorized by the
director of the facility.
Inpatient categories of care:
Psychiatric Intensive Care Unit – a locked unit for patients requiring the highest level
of observation and containment. Provides secure care to ensure prevention of harm to
the patient or to others until the condition improves;
• Adolescent in-patient unit – a unit where youth are cared for separately from adults;
• Geriatric care – specialized units for geriatric patients with psychiatric conditions. If
there is a need to mix seniors with the general adult population, it is preferable, due to
the fragile nature of these patients, to assign them to a geriatric medical ward than to
an adult psychiatric ward.
•
662.
Best practices for the provision of mental health services are found at the following
website: http://www.healthservices.gov.bc.ca/mhd/.
663.
In addition the Ombudsman office can review complaints regarding the actions of public
bodies including "hospitals, regional and local health agencies, and health-related
government agencies such as Medical Services Plan and Pharmacare.
Article 14: Fair trial rights
664.
In July 2001, the Province initiated the Administrative Justice Project, a comprehensive
examination of the province’s administrative justice system. The Project included a
review of 67 administrative tribunals, including reviews of their independence and
accountability, dispute resolution procedures, and their jurisdiction to make decisions
under the Canadian Charter of Rights and Freedoms. The Project released reports and a
White Paper for public review. In response, Government took immediate steps to
implement the Project’s recommendations. A program of law and policy reform was
approved and initiated. The Administrative Justice Office was established to lead the
implementation and to develop a permanent centre of excellence on administrative justice
reform. The Office has released its first annual report on its activities for the year
2002/03.
665.
The Provincial Court Amendment Act 2002 strengthened judicial independence by
clarifying the role and powers of Judicial Justices of the Peace.
Youth Justice
666.
Since joining the Ministry of Children and Family Development in 1997, Youth Justice
Services have been significantly enhanced based on the principle of integrated and multidisciplinary case management.
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667.
A $2 million increase was provided for addiction treatment services for young offenders
including new residential treatment beds specifically for females and Aboriginal youth.
668.
The total annual budget for funding drug and alcohol services is approximately $3.3
million which includes: 24 residential treatment beds, Youth Substance Abuse
Management Programs, (educational and treatment readiness programs available in
custody and the community), group and individual addiction counseling services in all
youth custody centres, and enhancements to Youth Forensic Services, including
rehabilitative programs for violent young offenders and the addition of a clinical services
unit at the new Victoria Youth Custody Centre.
669.
BC has the lowest per capita rate of youth on probation in the country, and the lowest per
capita youth custody rate in Canada (less than one half the national average).
670.
A declining demand for custody beds has facilitated the redeployment of additional
custody staff to the community intensive support and supervision programs (a total of 18
custody staff working in the community). A contributing factor has been this Ministry's
increase in the number and range of community-based services including the expansion
of intensive support and supervision programs in the community, particularly in rural
communities.
671.
In preparation of the implementation of the federal Youth Criminal Justice Act earlier this
year and with funding support from the federal government through the young offender
cost-sharing agreement, 11 probation officer positions have been designated as
restorative justice conferencing specialists.
672.
British Columbia welcomes the emphasis in the Act on the rights of victims, the value of
restorative justice approaches, the need to deal with minor offenders outside the formal
court system, and the need to reserve custody for only the most serious offenders. Court
procedures change significantly, and judges will have a wider range of sentencing
options. The Act also promotes intensive intervention and treatment for serious violent
offenders who suffer from mental disorders and addictions.
Article 17: Right to privacy
673.
On January 1, 2004, British Columbia's Personal Information Protection Act came into
force. This Act limits the amount of personal information that businesses, non-profit
organizations and charities can collect from clients, customers, employees and
volunteers, and sets out how that personal information can be used and disclosed. It
strikes a balance between a citizen's right to control access to and use of his or her
personal information with an organization's need to collect, use and disclose personal
information for legitimate and reasonable business purposes. Citizens also have a right to
see, and ask for corrections to, their personal information held by organizations. In
addition to protecting the personal information of B.C. citizens, this Act will also support
electronic commerce and increase opportunities for B.C. businesses to trade with other
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jurisdictions, such as the European Union, that require their trading partners to have
privacy protection laws.
674.
A 2003 amendment to the Freedom of Information and Protection of Privacy Act requires
a Privacy Impact Assessment to be conducted prior to the introduction of any new
legislation, program, or information technology initiative.
675.
With regard to the protection of privacy for social assistance recipients, British Columbia
is proactive in taking steps to protect individuals' right to privacy. All information
collected from clients is restricted to the specific needs of the program and in accordance
with the Freedom of Information and Protection of Privacy Act (FOIPPA). The Ministry
of Human Resources continues to develop and implement policies/procedures, and take
necessary precautions to improve the security of client information. Further to the
required Privacy Impact Assessment, the ministry conducted a security/privacy audit in
2003 and is currently working to implement recommendations from that audit. It is
anticipated that audits around security and privacy of information within the ministry will
continue on an interval basis.
Article 23: Protection of the family, right to marriage and equality
between spouses
676.
In 2003, the British Columbia Court of Appeal ruled that the common law definition of
marriage, which prevented same-sex couples from marrying, violated the Canadian
Charter of Rights and Freedoms. The court reformulated the definition of marriage and
same-sex couples may now legally marry in British Columbia. Since the federal
government has exclusive responsibility over capacity to marry under the Canadian
Constitution, if the federal government passes a law defining who may marry, that law
will apply throughout Canada, including British Columbia.
Article 24: Rights of the child
677.
The document “Responses of Canada to the Committee on the Rights of the Child”
describes the change in responsibility from the British Columbia Children’s Commission
to the Office for Children and Youth.
678.
New regulations have been introduced which prohibit the employment of youth during
school hours. Young people between 12 and 14 may work up to 4 hours outside of
school hours on a school day, with a maximum of 20 hours per week. When school is not
in session they may work up to seven hours per day and 35 hours per week. Parental
permission must be provided and they must be under the supervision of an adult in the
workplace at all times. For children under the age of 12 permission of the director of
employment standards is required. New rules have also been introduced limiting the
hours of work for young people in the film industry and ensuring that a portion of their
earnings are held in trust. Employers who are in violation of these rules are subject to
fines of up to $10,000.
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Child Care
679.
In 2001, the Government of British Columbia undertook its fourth Provincial Child Care
Survey of licensed Centre-based and licensed Family Child Care providers. Surveys are
designed to allow for data comparability over time. As of April 2001:
•
•
There were 2,116 licensed centre-based child care facilities (an increase of almost 15
percent since 1997) with an estimated maximum capacity of 56,053 licensed spaces
(an increase of 12 percent since 1997).
There were 2,382 licensed family child care facilities, an increase of 5 percent since
1997. The overall capacity was 16,555 child care spaces, an increase of 5 percent
since 1997.
680.
Based on child population, determination of child care need and number of total licensed
child care spaces available at that time, British Columbia had 26 spaces per 100 children
0 - 12 in 2001.
681.
British Columbia continues to provide capital and operating funding programs to childcare providers and child care subsidy to low-income parents to support their ability to
afford child care.
Community Governance – Aboriginal Services
682.
A Memorandum of Understanding signed September 09, 2002 between the Province and
Aboriginal leaders will allow Aboriginal children to grow up and flourish in their own
culture.
683.
The Memorandum of Understanding established a Joint Aboriginal Management
Committee to make decisions related to the safety and well being of Aboriginal children
and families, and to play a role in the move of child protections and family development
service delivery to regional Aboriginal authorities.
Article 25: Civic responsibility and political participation
684.
A Citizen’s Assembly on Electoral Reform has been established to examine the
province’s electoral system. The Assembly is an independent, non-partisan assembly of
160 randomly selected British Columbians who will look at how votes cast in provincial
elections translate into seats in the legislative assembly. If they decide that B.C. should
have a new system, their proposal will frame a referendum question that will go directly
to the voters in the provincial election of May 2005. If a change is approved by voters,
government has made a commitment to implement the change for the general election of
2009.
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Article 27: Religious, cultural and linguistic rights
685.
A historical treaty between the Nisga’a First Nation and the governments of British
Columbia and Canada was signed on August 4, 1998. This was the first treaty to be
signed in the province since 1899. The Nisga’a Final Agreement sets aside
approximately 2000 square kilometres of land in the Nass River Valley in northern
British Columbia where the Nisga’a people now own surface and subsurface resources
and have a share of Nass River salmon stocks and Nass area wildlife harvests. The Final
Agreement provides a financial transfer of $190 million, payable over 15 years, as well as
$21.5 million in other financial benefits. The Criminal Code, the Canadian Charter of
Rights and Freedoms and other federal and provincial laws of general application
continue to apply. In addition, the Final Agreement specifies that personal tax exemptions
under the Indian Act will be phased out.
686.
Under the Nisga’a Final Agreement, the specified lands will be owned by the Nisga’a as
fee simple property, including forest resources, subsurface resources and gravel. The
Nisga’a will be able to sell or lease parcels of land. An existing provincial park and
ecological reserve within the Nisga’a Lands will remain under provincial government
ownership and jurisdiction, and the Nisga’a will continue to be involved in the
management of these areas. A five year transition period was established for forest
resources, to allow forest licensees to continue to harvest forest resources, protecting jobs
and the stability of the wood processing industry. The Nisga’a may establish rules and
standards to govern forest practices. These standards must meet or exceed provincial
rules and standards for Crown lands, including those in the Forest Practices Code of
British Columbia Act. The Agreement addresses public access to lands and province’s
responsibility for maintenance of an existing provincial highway. Standards for fisheries
and wildlife management are included, as is the procedure for environmental assessment
of development proposals. A governance structure is provided and the powers and
authority of the governing body are specified. The Nisga’a government may assume
responsibility for policing, and may also establish a Nisga’a Court, which may come in to
effect if the Province is satisfied with the Court’s structures and procedures. Decisions of
the Nisga’a Court may be appealed to the BC Supreme Court. The Nisga’a Treaty
became law on April 13, 2000.
687.
Since 1992, an independent and impartial British Columbia Treaty Commission was
established with the responsibility to oversee all treaty negotiations in the province with
the exception of the Nisga’a negotiations, which were already in progress when the
Commission was established. Since then, Canada, British Columbia and First Nations
who choose to engage in the British Columbia Treaty Commission process have been
negotiating treaties with the goal of bringing certainty to issues related to aboriginal
rights, lands and resources, forestry, fishing, and governance. The Commission’s
responsibilities include allocating federal and provincial funding to First Nations to
enable treaty negotiations, providing assistance to the parties as required, and promoting
public education with respect to the treaty process.
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688.
There are six stages in the treaty making process. Significant progress has been made
during the last three years, with four First Nations commencing the final stage of
negotiations leading to a treaty. According to the BC Treaty Commission, the breakdown
of First Nations in each stage is as follows:
# of First Nations Stage 2 Stage 3 Stage 4 Stage 5
participating
2004 55
6
3
41
5
689.
In 2002, the Government of British Columbia approved a reconciliation framework to
help bridge the gaps between First Nations and government. The framework includes a
public expression of regret for tragic experiences visited upon First Nations through years
of paternalistic policies that fostered inequity, intolerance, isolation and indifference. It
also includes a recognition of aboriginal rights, culture and heritage, as well as providing
tools at treaty tables to reach agreements on the use of land and resources. The
reconciliation and recognition initiative, though not about monetary compensation, is a
critical component of the effort to build strong and respectful relationships between
government and First Nations. It is intended to resolve key policy issues related to the
treaty process and to form a partnership to work on building new approaches that will
improve First Nations’ quality of life, before and after treaties are concluded.
690.
British Columbia has also developed a “Provincial Policy for Consultation with First
Nations” for use in the interim to treaties. The policy, which is consistent with recent
case law, sets out a required consultation process to inform decisions taken by the
provincial government on land and resource issues that have the potential to infringe
aboriginal rights and/or title asserted by First Nations in the Province.
691.
Subsequent to this policy, the Province has also committed to a framework for
accommodating First Nations in fulfillment of legal obligations related to government’s
responsibility to avoid unjustifiable infringement of aboriginal rights and title. As
government ministries and agencies develop agreements with First Nations and engage in
accommodation activities, benefits are expected to accrue to both the provincial economy
and First Nations’ stake in it.
692.
For example, in 2003, government made a commitment to share forest revenues with
First Nation groups. In the first year of that commitment, seven forestry accommodation
agreements have been signed, committing a total of almost $28 million in exchange for
provisions that promote a stable operating environment for the provincial forest and range
sector. Other agencies within the provincial government are also engaged in negotiating
accommodation agreements to provide similar outcomes for other sectors.
693.
Between 1991 and 2003, the Province has allocated approximately $14 million to the
First Peoples’ Heritage, Language and Culture Council to fund a variety of projects
aimed at preserving and strengthening Aboriginal languages and culture. Between 2001
and 2004, the Province has also provided $26 million to First Nations throughout British
Columbia to support economic development projects.
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694.
With regard to the implementation of the recommendations of the Royal Commission of
Aboriginal Peoples, the information in this report regarding the status of treaty
negotiations and the delegation of child protection services to First Nations and Métis
agencies responds to the intent of the Royal Commission recommendations.
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Part III
Measures Adopted by the
Governments of the
Territories
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Nunavut
695.
On April 1, 1999 the new territory of Nunavut was created out of the Northwest
Territories pursuant to section 3 of the Nunavut Act, S.C. 1993, c.28. Modeled on the
Northwest Territories Act and the Yukon Act, the Nunavut Act bestows on the
Government of Nunavut powers equivalent to those possessed by the other two
territories. Under section 29 of the Nunavut Act, all territorial laws in force in the
Northwest Territories immediately before division were duplicated for Nunavut on April
1, 1999. All other laws in force in the Northwest Territories on April 1, 1999 (e.g. federal
laws, common law) were continued in Nunavut, to the extent that they were applicable.
Article 2: Equal rights and effective remedies
696.
The Fair Practices Act which was duplicated for Nunavut from the Northwest Territories
at the time of division, addresses the issue of equal rights of men and women.
697.
The Human Rights Act was passed by the Nunavut Legislative Assembly on November 4,
2003. The Act makes provision for a one-year implementation period, and is to come
into effect on November 5, 2004, being the anniversary date of the day on which it
received assent.
Article 3: Equal rights of men and women
698.
The Human Rights Act, which acknowledges the paramountcy of the Nunavut Land
Claims Agreement, recognizes that everyone in Nunavut has the right to be treated with
dignity and equality, and prohibits discrimination in the following areas: employment;
membership in employees’ organizations, trade unions, trade associations, occupational
or professional associations or societies, employers’ organizations or co-operative
associations or organizations; provision of goods, services, facilities or contracts;
tenancy; and publication of notices, signs, symbols, emblems and other representations
concerning the above.
699.
The Act provides that no one may be discriminated against on the following grounds:
race; colour; ancestry; ethnic origin; citizenship; place of origin; creed; religion; age;
disability; sex; sexual orientation; marital status; family status; pregnancy; lawful source
of income; and conviction for which a pardon has been granted.
700.
The impact of this new Act is such that Nunavummiut now have legislation which not
only provides for more adequate human rights protection, but also makes such protection
more accessible:
•
•
Nunavut
a tribunal, made up of Nunavummiut, will hear cases in Nunavut;
Nunavummiut will be able to file complaints in a simplified manner, and in their own
language; and
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•
701.
a third party will be able to file a complaint on behalf of a person who has been
wronged.
The Act also acknowledges Inuit Qaujimajatuqangit, which is Inuit traditional
knowledge.
Article 6: Right to life
702.
An updated Community Plan for Homelessness has been developed by the City of Iqaluit,
which is the capital of Nunavut and by far the largest community in the Territory. This
Plan recommends a number of projects with the expectation that sustainable programs
will be initiated. Various initiatives have provided emergency shelter, safe houses, a
mental health facility, a friendship centre, and related programs. Given that Nunavut
continues to experience severe housing shortages, these temporary measures provide very
necessary relief.
703.
The Government of Nunavut has created a portfolio on homelessness, a position that is
shared between the Nunavut Housing Corporation and the Department of Health and
Social Services. A homelessness strategy is being developed for all of Nunavut, as well
as a long term housing strategy. The Corporation is also attempting to address the need
for more affordable housing.
704.
Many of Nunavut’s social problems are directly linked to over-crowding and
homelessness, and it is hoped that ongoing efforts by both the municipal and territorial
governments to resolve housing issues will go far in alleviating these problems.
Fetal Alcohol Spectrum Disorder (FASD)
705.
Corrections staff as well as members of communities involved in Community Justice
Committees have been trained in recognising and working with clients who are affected
by FASD. The chief focus to date has been in education, but this is being expanded in
the area of diagnosis and development of treatment tools.
Article 7: Protection against torture
706.
With the coming into effect of the federal Youth Criminal Justice Act on April 1, 2003,
Nunavut availed itself of the election provisions under s. 61, and fixed the age with
respect to provisions relating to presumptive offences at 16 years. This decision has the
effect of permitting a young person to benefit more fully from the spirit of the Act, being
one of a restorative justice approach, as set out in the Declaration of Principles set out in
said Act.
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Article 10: Treatment of persons deprived of liberty
707.
All offenders have the option of taking programs that focus on rehabilitation and
education, unless they are ineligible due to having remand status, or because their
participation would be disruptive.
708.
Currently all woman are housed in the facility in Fort Smith, which uses only female staff
to guard female offenders. If a woman who is at this facility is pregnant, it is anticipated
that she would be given an early release to have her baby. If this is not possible the
individual will be provided adequate medical attention and efforts will be made to have
the baby placed with a family member. If the woman is in a halfway house,
arrangements might also be made for her to keep the baby in the facility.
709.
In Nunavut, remanded offenders are offered the same programs as those available to
sentenced offenders. Everyone is given these options, but those on remand may choose
not to be in treatment, at the advice of their lawyer.
710.
In accordance with Nunavut’s Corrections policies and procedures, all offenders maintain
their rights. Remedies available to offenders in the event of violation of their rights
consist of appeal procedures which are in place. These are directed either through the
Warden, or the Director of Corrections.
711.
Offenders are classified as high, medium or low security, with rules set out for each
classification. Remanded and sentenced offenders are classified pursuant to the
guidelines, each having rules applicable to that classification.
712.
The disciplinary system provides for a review of charges, and options available to the
offender for the giving of evidence. The decision is made by a panel.
713.
Prisoners are not placed in solitary confinement, but are sometimes segregated from the
rest of the prison population. Such individuals are however given the same privileges as
others, with the exception of being more restricted in their movement within the prison
environment.
714.
Prisoners have free access to the use of telephones but are restricted in that they may not
contact a potential witness, nor may they contact individuals who have requested that
they not be so contacted.
715.
Respect of prisoners among detention centre officials is covered by the basic training
they receive, and through supervision.
716.
Prisoners who are on probation following their release from prison are in contact with
probation officers in the community. Community Justice officials also work with
individuals who have been released.
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Article 18: Freedom of thought, conscience and religion
717.
Nunavut’s Human Rights Act prohibits discrimination on the basis of religion.
Article 24: Rights of the child
718.
By letter addressed to The Right Honourable Jean Chretien, dated September 8, 2003,
Premier Paul Okalik of Nunavut, expressed Nunavut’s support for the objectives and
principles contained in the United Nations Convention on the Rights of the Child. The
letter further extended Nunavut’s formal support for the Government of Canada’s
ratification of the Convention.
719.
Nunavut values its children, and this formal recognition of the Convention reinforced this
commitment.
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Northwest Territories
Article 2: Equal rights and effective remedies
720.
The Human Rights Act received assent on October 30, 2002. It became fully in force on
July 1, 2004.
721.
The Legislative Assembly is coordinating implementation of the Human Rights Act.
722.
The Act establishes the Northwest Territories Human Rights Commission to carry out
functions under the Act. The Commission is an independent agency of the Government of
the Northwest Territories, providing annual reports through the Legislative Assembly.
723.
Through the provisions outlined in the Human Rights Act, the Human Rights
Commission will be responsible to promote equality and reduce discrimination for
territorial residents.
724.
Prohibited grounds of discrimination under the Act are race, colour, ancestry, nationality,
ethnic origin, place of origin, creed, religion, age, disability, sex, sexual orientation,
gender identity, marital status, family status, family affiliation, political belief, political
association, social condition and a conviction for which a pardon has been granted.
Pregnancy, disability, multiple grounds and association are also prohibited.
725.
The Human Rights Commission Office opened to the public on July 1, 2004.
726.
The Commission will fulfill its responsibilities through public education initiatives and
the investigation/mediation and resolution of complaints of discrimination.
727.
Provisions of the Fair Practices Act continued in the Human Rights Act. The Fair
Practices Act was repealed on enactment of the Human Rights Act. Complaints being
heard under the older Act will continue until resolved.
728.
The Northwest Territories Legal Services Board, an independent body from government,
operates legal aid in the Northwest Territories.
729.
In addition, the Legal Services Board is responsible for the Aboriginal Courtworker
Program and Public Legal Aid and Information.
730.
In 2004-2005, the Government of the Northwest Territories increased funding to allow
for establishment of a separate family law clinic, to meet pressing needs and the backlog
in family law.
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Article 3: Equal rights of men and women
731.
Of the Northwest Territories’ 18 elected Members of the Legislative Assembly, two are
women. None are in Cabinet.
732.
The Special Advisor for the Status of Women provides a point of contact within the
territorial government on issues of concern to women and advice and support to the
Minister Responsible for the Status of Women. The office also administers funding
which supports and provides liaison with the Status of Women Council, the Native
Women’s Association and other organizations that enhance the cultural, economic,
political and social participation of women in society.
733.
Over the past several years, lump sum payments have been made to female workers in the
NWT Public Service who had not been receiving equal pay for work of equal value. The
complaint was settled June 25, 2002.
734.
In 2000, the Workers Compensation Act was amended to allow lump sum payments to be
made to surviving spouses whose pensions were terminated upon their marriage or
remarriage before April 17, 1985.
735.
The Northwest Territories Maintenance Enforcement Program (MEP) helps children and
families by monitoring, enforcing and collecting support payments. The Program has
reciprocal enforcement agreements with all Canadian provinces and territories, all
American states, and some foreign countries. Under these agreements, maintenance
enforcement agencies in other jurisdictions can collect on behalf of the NWT
Maintenance Enforcement Program for creditors who live within the NWT. This
agreement also allows the NWT Maintenance Enforcement Program to collect funds
from debtors who live within the NWT on behalf of other jurisdictions.
Article 10: Treatment of persons deprived of liberty
736.
All staff of Corrections Service receive training on the rights of offenders to ensure
offenders have their freedoms restricted as minimally as possible in order to carry out the
sentences of the courts.
737.
Three new facilities opened in 2002, 2003 and 2004, providing appropriate spaces for
rehabilitating incarcerated female and male youth and adult males. Their designs required
staff to be retrained as case managers. Time is program centred. Elders are on staff and
culturally appropriate settings are provided for talk and contemplation.
738.
In 2003, the River Ridge Correctional Facility in Fort Smith was redesigned to house
victims of Fetal Alcohol Spectrum Disorder and other adult offenders who have mental
and emotional disorders. Staff were retrained to work with the special needs of these
offenders and the program is showing some success. The local community has been very
supportive.
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Article 14: Fair trial rights
739.
Following a 1997 Supreme Court of Canada decision, the Northwest Territories Judicial
Remuneration Commission was established under the Territorial Court Act.
740.
The purpose of the Judicial Remuneration Commission is to ensure independence from
Government for Territorial Court Judges through independent determination of Judges’
salary and benefits.
741.
The Commission’s function is to conduct an inquiry every three years with respect to the
salaries paid to territorial judges, and the pension, vacation leave, sick leave and other
benefits provided to territorial judges. After the inquiry, the Commission prepares a
report which has the same effect as if it was passed by the Legislative Assembly.
742.
An independent Judicial Appointments Advisory Committee makes recommendations to
the Commissioner in Executive Council respecting the appointment of Territorial Court
Judges and Deputy Judges.
743.
The federal Youth Criminal Justice Act (YCJA) came into effect on April 1, 2003.
Implementation has proceeded smoothly.
744.
Amendments were made in 2003 to the NWT Young Offenders Act and a new NWT
Youth Justice Act into force on April 1, 2004.
745.
Community Justice Committees, RCMP, Peace officers (under the YJA) and the public in
seven communities received information on the new legislation in 2004 when staff from
the Department of Justice travelled to do follow-up training on the federal Youth
Criminal Justice Act (YCJA).
Article 24: Rights of the child
746.
The Children’s Law Act came into force November 1, 1998. It confirms the status of
children within their families; recognizes in law the parentage of a child; provides for the
mutual obligations of parents to care for and support their children; recognizes that
decisions regarding custody and access to children, and the guardianship of the estates of
children, should be made in accordance with the best interests of the children, with a
recognition that differing cultural values and practices must be respected in those
determinations; and provides in law for the timely and orderly settlement of the affairs in
respect of a child and to avoid a multiplicity of proceedings in relation to the affairs of a
child.
747.
The Children’s Law Act replaced the Child Welfare Act, the Domestic Relations Act, the
Extra-Territorial Custody Orders Enforcement Act, the Maintenance Act and the Minors
Act.
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Article 27: Religious, cultural and linguistic rights
748.
A Special Committee of the Legislative Assembly conducted a two-year review of the
Official Languages Act, tabling its report, One Land – Many Voices, on March 3, 2003.
The Committee made 65 recommendations. The Government responded in 2003.
749.
The settlement of land claims and self-government agreements continues to be a priority
for the Government. Negotiations are tripartite, with the Aboriginal organizations,
Government of the NWT and the Government of Canada.
750.
The Inuvialuit Final Agreement was signed in 1984. The Gwich’in Comprehensive Land
Claims Agreement was signed in 1992. The Gwich’in and Inuvialuit are in SelfGovernment negotiations, which continue through 2004.
751.
The Sahtu Dene and Metis Comprehensive Land Claim Agreement was signed in 1993.
The communities of Tulita and Deline are in Self-Government negotiations in 2004.
752.
The Tli Cho Lands, Resources and Self Government Agreement was signed August 25,
2003 (Dogrib). The Tli Cho Intergovernmental Services agreement has also been
signed.
753.
Accords have been signed with the South Slave Metis, the Akaitcho and the Deh Cho.
Discussions at these tables are at various stages.
754.
The creation of Nunavut on April 1, 1999 was the implementation of a clause in the
Tungavik Federation of Nunavut (TFN) Comprehensive Claim, negotiated with TFN,
Canada and the Government of the NWT.
755.
Implementation of the signed claims continues.
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Yukon
Article 2: Equal rights and effective remedies
756.
In 1998 the Yukon Human Rights Act, was amended to add source of income as a
prohibited ground of discrimination.
757.
In 2002, the Yukon Human Rights Commission received from the Yukon Government an
increase in base funding providing for the addition of part time legal counsel and public
education positions. Addition of legal counsel on staff for the first time has contributed
to building the base of knowledge of human rights law in Yukon and has provided
dedicated in-house support for Commissioners, who are volunteers and primarily lay
people with respect to the law. Public education activities have had a focus on building
relationships among equity–seeking groups, fostering awareness of human rights and
awareness of those practices/approaches/actions that build respect in a diverse
community.
758.
Legal aid in the territory is operated by the Yukon Legal Services Society (YLSS), an
independent body from the government. In 2000, with the full support of the YLSS, the
government arranged for a review of the operations of the YLSS to determine the range
of issues affecting the provision of legal aid services in the Yukon and to make
recommendations for change and improvement. The report was released in October 2000
and implementation of the recommendations made by the report is ongoing. Two key
recommendations made in the report were to take steps to ensure that a realistic budget
was established for legal aid and to provide more family law services.
759.
As a result, the Yukon government has increased funding for legal aid in this jurisdiction
significantly. In 1999-01and 2001-02, $425,000 in additional funding was provided to
assist the Legal Services Society of the Yukon eliminate their accumulated debt for
delivering the territory’s legal aid program. This brought the legal aid budget to
$1,356,000/year. The federal contribution to this program is $528,000 and the Yukon
contribution is $828,000.
760.
The Legal Services Society has since resolved their financial and operational difficulties
and continues to operate at a surplus. In 2001, they were able to expand the legal counsel
they provide to families to cover: applications for permanent custody of children in the
Yukon Supreme Court; applications to vary support orders in the Yukon Supreme Court;
and representation in certain proceedings under the Family Violence Prevention Act.
761.
New administrative measures to facilitate proceedings include the use of
videoconferencing in the Yukon courts. One rollabout Tandberg 800 unit was purchased
with funding from Justice Canada, and has been used in all five Whitehorse courtrooms
since April 2001. Videoconferencing was first used to receive testimony from witnesses
in southern Canada in criminal proceedings, but has also been used in civil suits and child
Yukon
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protection hearings. While it was initially envisioned that videoconferencing would be
used to examine expert and RCMP witnesses, lay witnesses have also given testimony by
videoconferencing. It has generally been well accepted. It is also used to provide
interpreter services (interpreter assisted from southern Canada).
Article 3: Equal rights of men and women
762.
Of the Yukon's 18 elected Members of Legislative Assembly (MLAs), three are women.
Each woman is a member of a different political party. One woman is a Cabinet minister.
763.
The Yukon Women’s Directorate’s mandate is to work towards the legal, social and
economic equality of women, to offer Gender Inclusive Analysis of all government
policies and legislation, public education on issues related to women’s concerns, as well
as collaborating with women’s organizations.
764.
In the spring of 2002, changes were made to shift the responsibility for women’s issues
by making the Women’s Directorate a branch of a department instead of it being an
independent department. Following a change in government, and after consultations
with women’s organizations, the Women’s Directorate was reinstated as an independent
department.
765.
With regard to significant new measures that have been taken recently to combat
systemic barriers to the full participation of women in Canada’s civil and political life the
Yukon notes that the Federal/Provincial/Territorial Status of Women Ministers produced
a business-case document and brochure to encourage employers to recruiting and
retaining women in the workplace. Entitled “Workplaces that Work: Creating a
Workplace Culture that Attracts, Retains, and Promotes Women” (September, 2003).
The document is being used by the Yukon Government (among other provincial
governments) to work with high growth industry employers that have a low percentage of
female employees, to encourage changes to workplace culture in order to retain diverse,
and talented female workforce.
766.
In 2002, the Reinstatement of Spousal Benefits Act was passed. This Act removed a
provision in prior worker’s compensation legislation that was inconsistent with the
Canadian Charter of Rights and Freedoms. The new legislation restored compensation
pension benefits to spouses who had remarried and whose former spouse had suffered a
work-related fatality.
Article 6: Right to life
767.
In 2003, the Pioneer Utility Grant, referred to in Canada’s Fourth Report, was increased.
Each subsequent year this Grant will be increased by the annual rate of inflation.
768.
In 2003, the Yukon Government introduced and passed the Decision Making, Support
and Protection to Adults Act. The purpose of the adult protection and decision making
legislation is to provide support to people who have diminished mental capability and to
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assist them in making day to day choices and other decisions in their lives. It also serves
to protect vulnerable adults from abuse and neglect. This Act is expected to be
proclaimed in 2004-05.
769.
The Whitehorse Planning Group on Homelessness was formed in 2000 to implement the
federal homelessness initiative in Whitehorse. The Group reviews proposals from local
organizations for addressing homelessness in Whitehorse. Current Planning Group
members include representatives from one crown corporation and three Yukon
government departments: Yukon Housing Corporation, Health and Social Services,
Education, Justice. Other members of the Planning Group include the City of
Whitehorse, Human Resources Development Canada, Canada Mortgage & Housing
Corporation, RCMP, Anti Poverty Coalition, Fetal Alcohol Syndrome Society of Yukon,
Yukon Women’s Aboriginal Council, Salvation Army, Whitehorse Christian Ministerial
Association, Yukon Family Services Association, Second Opinion Society.
Fetal Alcohol Syndrome (FAS)
770.
Sandra and Sterling Clarren, two expert physicians in the field of Fetal Alcohol
Syndrome, were keynote speakers at the Prairie Northern Pacific Partnership Conference
on FAS held in Whitehorse, Yukon on May 8, 2002. More than 500 parents,
professionals and community agency representatives from across Canada and Alaska
attended. The conference theme was "A Lifetime of Solutions" and focused on a
continuum of services and support for individuals affected by FAS and their families.
771.
The partnership includes the governments of Manitoba, Saskatchewan, Alberta, Nunavut,
the Northwest Territories, Yukon and, most recently, British Columbia. Members work
together to develop common strategies to prevent FAS and support youth and families
affected by it. Each year the partnership hosts a conference and technical symposium.
772.
In October 2000, new regulations to the Yukon's Public Health Act were established to
allow the Yukon to track the number of people in the territory with fetal alcohol
syndrome (FAS). All physicians must report diagnoses of FAS to a central registry to
assist in targeting prevention, treatment and support programs. Doctors were provided
with copies of the diagnostic guidelines for FAS recommended by the Yukon's medical
officer of health.
Article 7: Protection against torture
773.
73
In R. v. Rathburn (2004),73 the Yukon Territorial Court referred to Articles 7 and 10 of
the Covenant and concluded that the treatment of Mr. Rathburn by the Yukon
Correctional authorities by placing him in Segregation 1 or "the hole" for an extended
period of time while on consent remand represents a violation of international norms in
the circumstances of the case. The psychiatric assessment indicates that his continued
placement in Segregation 1 would likely exacerbate his medical condition.
R. v. Rathburn, [2004] Y.J. No. 26.
Yukon
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774.
The Yukon Department of Justice has no other secure facility to place psychiatric inmates
who are acting out. Segregation 1 is currently the most suitable place because it has
camera surveillance; however, the Department of Justice is looking at options for ways to
properly house suspected or confirmed mentally disordered accused. The Whitehorse
Hospital does not have a secure psychiatric facility.
Article 10: Treatment of persons deprived of liberty
775.
All new corrections staff receive training about the constitutional rights of offenders to
ensure offenders have their freedoms restricted as minimally as possible in order to carry
out the sentences of the courts. Policy and procedures rules are in place regarding use of
force by staff. Adherence to these policies and procedures is strictly enforced.
776.
Upon admission to the Yukon’s correctional centre located in Whitehorse, inmates
receive a handbook that describes all their rights and responsibilities. There is an inmate
grievance system where inmates can complain if they believe they are receiving unfair or
improper treatment by staff. Inmates have free access to the Ombudsman for the Yukon.
Article 14: Fair trial rights
777.
All provinces and territories were required to establish an independent Judicial
Compensation Commission as a result of a 1997 Supreme Court of Canada decision. The
Yukon Judicial Compensation Commission is established under the Territorial Court Act
and meets every three years. The Commission is an impartial, independent body, charged
with making decision regarding salaries, pensions, allowances, benefits and other related
matters pertaining to the remuneration and compensation provided for Territorial Court
judges and justices of the peace. This Commission met in 1998 and 2001. The next
Commission will meet in 2004.
778.
The Youth Criminal Justice Act (YCJA) came into effect on April 1, 2003.
Implementation has proceeded smoothly in the Yukon, with no public concerns and no
significant sentencing or service impacts. The Ministers of Justice and Health and Social
Services have met with the coordinators of the Community Justice Committees on this
issue. Seven of nine community justice organizations in the Yukon have requested, and
been granted, interim authorization to offer extrajudicial sanctions programs for youth to
March 31, 2004, pending the development of guidelines in consultation with the Yukon
government.
Article 24: Rights of the child
779.
Yukon
In October 2003, the Government of Yukon reached agreement with Yukon First Nation
chiefs regarding a partnership process to develop new Yukon legislation regarding
children. The Yukon Government will be conducting a consultation and review of the
Children's Act over the next two years.
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Article 27: Religious, cultural and linguistic rights
780.
In January 2002, the Yukon and Canada signed Final and Self-Government Agreements
with the Ta’an Kwachan Council, the eighth of 14 Yukon First Nations to finalize their
land claim negotiations and enter into a modern-day treaty with the federal and territorial
governments.
781.
On March 31, 2002, the Yukon signed Memorandums of Understanding with four Yukon
First Nations and the Government of Canada that indicated the end of substantive
negotiations for their land claim and self-government negotiations pursuant to the
Umbrella Final Agreement. The four First Nations are Kluane First Nation, White River
First Nation, Carcross/Tagish First Nation and Kwanlin Dun First Nation.
782.
At December 31, 2003, the Kluane First Nation had ratified their Final and SelfGovernment Agreements, which were scheduled to become effective on Feburary 2,
2004. For Carcross/Tagish and Kwanlin Dun, technical and legal drafting were
concluded in October with the next step being ratification by the citizens of each First
Nation, scheduled for spring 2004. Technical and legal drafting for White River First
Nation had not yet been concluded by December 2003.
783.
In May 2003, the Government of Yukon entered into a bilateral economic agreement, in
the absence of a land claim agreement, with the Kaska First Nations involving the Ross
River Dena Council and the Liard First Nation.
784.
Yukon entered into an agreement with Canada a two-year extension of the CanadaYukon Cooperation Agreement on the Development and Enhancement of Aboriginal
Languages, to end March 31, 2005.
785.
In October 2003, the Government of Yukon entered into Consultation Protocols with the
eight self-governing Yukon First Nations, which outline procedures to be followed for
consultation obligations under the Final and Self-Government Agreements.
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Index of Articles
Article 1: Right to self-determination
Government of Canada ........................................................................................................4
Article 2: Equal rights and effective remedies
Alberta..............................................................................................................................123
British Columbia..............................................................................................................138
Government of Canada ........................................................................................................4
Manitoba ..........................................................................................................................100
New Brunswick..................................................................................................................66
Newfoundland and Labrador .............................................................................................49
Northwest Territories .......................................................................................................157
Nova Scotia........................................................................................................................61
Nunavut............................................................................................................................153
Ontario ...............................................................................................................................86
Prince Edward Island .........................................................................................................58
Québec ...............................................................................................................................73
Saskatchewan...................................................................................................................114
Yukon...............................................................................................................................161
Article 3: Equal rights of men and women
British Columbia..............................................................................................................138
Government of Canada ........................................................................................................6
Manitoba ..........................................................................................................................100
New Brunswick..................................................................................................................68
Newfoundland and Labrador .............................................................................................50
Northwest Territories .......................................................................................................158
Nova Scotia........................................................................................................................61
Nunavut............................................................................................................................153
Prince Edward Island .........................................................................................................59
Québec ...............................................................................................................................73
Saskatchewan...................................................................................................................115
Yukon...............................................................................................................................162
Article 4: Derogation clause
Alberta..............................................................................................................................126
New Brunswick..................................................................................................................69
Index of Articles
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Article 6: Right to life
Alberta..............................................................................................................................126
British Columbia..............................................................................................................140
Government of Canada ........................................................................................................9
Manitoba ..........................................................................................................................102
Newfoundland and Labrador .............................................................................................51
Nova Scotia........................................................................................................................62
Nunavut............................................................................................................................154
Ontario ...............................................................................................................................90
Prince Edward Island .........................................................................................................59
Québec ...............................................................................................................................74
Saskatchewan...................................................................................................................115
Yukon...............................................................................................................................162
Article 7: Protection against torture
Alberta..............................................................................................................................126
British Columbia..............................................................................................................142
Government of Canada ......................................................................................................10
Manitoba ..........................................................................................................................103
Newfoundland and Labrador .............................................................................................52
Nunavut............................................................................................................................154
Ontario ...............................................................................................................................92
Québec ...............................................................................................................................75
Saskatchewan...................................................................................................................117
Yukon...............................................................................................................................163
Article 8: Protection against slavery and forced labour
Government of Canada ......................................................................................................13
Manitoba ..........................................................................................................................104
Québec ...............................................................................................................................76
Saskatchewan...................................................................................................................117
Article 9: Right to liberty and security of person
Alberta..............................................................................................................................127
British Columbia..............................................................................................................142
Government of Canada ......................................................................................................15
Manitoba ..........................................................................................................................105
Nova Scotia........................................................................................................................62
Ontario ...............................................................................................................................93
Québec ...............................................................................................................................76
Index of Articles
167
Canada’s Fifth Report on the United Nations’
International Covenant on Civil and Political Rights
Article 10: Treatment of persons deprived of liberty
Alberta..............................................................................................................................127
British Columbia..............................................................................................................143
Government of Canada ......................................................................................................18
Manitoba ..........................................................................................................................105
New Brunswick..................................................................................................................69
Newfoundland and Labrador .............................................................................................52
Northwest Territories .......................................................................................................158
Nova Scotia........................................................................................................................63
Nunavut............................................................................................................................155
Ontario ...............................................................................................................................94
Québec ...............................................................................................................................76
Saskatchewan...................................................................................................................117
Yukon...............................................................................................................................164
Article 12: Mobility Rights
Québec ...............................................................................................................................77
Article 14: Fair trial rights
Alberta..............................................................................................................................131
British Columbia..............................................................................................................145
Government of Canada ......................................................................................................20
Manitoba ..........................................................................................................................106
Newfoundland and Labrador .............................................................................................53
Northwest Territories .......................................................................................................159
Nova Scotia........................................................................................................................63
Ontario ...............................................................................................................................95
Québec ...............................................................................................................................77
Yukon...............................................................................................................................164
Article 17: Right to privacy
Alberta..............................................................................................................................133
British Columbia..............................................................................................................146
Government of Canada ......................................................................................................25
Manitoba ..........................................................................................................................107
Newfoundland and Labrador .............................................................................................53
Nova Scotia........................................................................................................................64
Prince Edward Island .........................................................................................................59
Québec ...............................................................................................................................79
Saskatchewan...................................................................................................................117
Index of Articles
168
Canada’s Fifth Report on the United Nations’
International Covenant on Civil and Political Rights
Article 18: Freedom of thought, conscience and religion
Government of Canada ......................................................................................................28
New Brunswick..................................................................................................................70
Nunavut............................................................................................................................156
Ontario ...............................................................................................................................96
Québec ...............................................................................................................................80
Saskatchewan...................................................................................................................118
Article 19: Freedom of opinion and expression
Government of Canada ......................................................................................................29
Québec ...............................................................................................................................81
Article 20: Ban on war propaganda and inciting hatred
Government of Canada ......................................................................................................31
Article 21: Right of peaceful assembly
Government of Canada ......................................................................................................32
Article 22: Freedom of association
Government of Canada ......................................................................................................32
Newfoundland and Labrador .............................................................................................54
Ontario ...............................................................................................................................97
Québec ...............................................................................................................................82
Saskatchewan...................................................................................................................118
Article 23: Protection of the family, right to marriage and equality between
spouses
Alberta..............................................................................................................................133
British Columbia..............................................................................................................147
Government of Canada ......................................................................................................33
Manitoba ..........................................................................................................................107
Ontario ...............................................................................................................................98
Québec ...............................................................................................................................82
Saskatchewan...................................................................................................................118
Index of Articles
169
Canada’s Fifth Report on the United Nations’
International Covenant on Civil and Political Rights
Article 24: Rights of the child
Alberta..............................................................................................................................134
British Columbia..............................................................................................................147
Government of Canada ......................................................................................................35
Manitoba ..........................................................................................................................108
Newfoundland and Labrador .............................................................................................54
Northwest Territories .......................................................................................................159
Nova Scotia........................................................................................................................64
Nunavut............................................................................................................................156
Ontario ...............................................................................................................................98
Prince Edward Island .........................................................................................................60
Québec ...............................................................................................................................83
Saskatchewan...................................................................................................................119
Yukon...............................................................................................................................164
Article 25: Civic responsibility and political participation
Alberta..............................................................................................................................136
British Columbia..............................................................................................................148
Government of Canada ......................................................................................................37
Prince Edward Island .........................................................................................................60
Article 26: Equality before the law
Government of Canada ......................................................................................................40
New Brunswick..................................................................................................................71
Newfoundland and Labrador .............................................................................................55
Ontario ...............................................................................................................................98
Manitoba ..........................................................................................................................110
Saskatchewan...................................................................................................................120
Article 27: Religious, cultural and linguistic rights
Alberta..............................................................................................................................136
British Columbia..............................................................................................................149
Government of Canada ......................................................................................................42
Manitoba ..........................................................................................................................111
New Brunswick..................................................................................................................72
Newfoundland and Labrador .............................................................................................56
Northwest Territories .......................................................................................................160
Nova Scotia........................................................................................................................64
Ontario ...............................................................................................................................99
Québec ...............................................................................................................................83
Saskatchewan...................................................................................................................122
Yukon...............................................................................................................................165
Index of Articles
170
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