In addressing racism and racial discrimination, there are a number of relevant legal instruments. This section contains links to several ACLRC pages and resources which examine these different legal instruments in detail. Among the resources and legal instruments examined, this section will examine provincial and national human rights instruments, the Canadian Charter of Rights and Freedoms, international human rights treaties focused on combatting racial discrimination and provide information on how to make a complaint or enforce your human rights.
Provincial and national Human Rights laws serve to protect individuals from discriminatory treatment by the government and private sector bodies. These laws protect people from discrimination that occurs on certain grounds in relation to certain activities. Among these grounds (known as protected grounds) race, colour and ethnicity are protected.
In addition to provincial and national human rights laws, the Canadian Charter of Rights and Freedoms provides protection for individual rights and freedoms against unreasonable and unjustified government action. The Canadian Charter of Rights and Freedoms forms a part of Canada’s constitution, and is thus one of the most important and widely known legal documents protecting individual’s civil liberties and freedoms. Among the numerous rights under the Charter, Section 15 of the Charter provides individuals with equality rights, where every individual has the right to be free from discrimination. Among the grounds of discrimination listed under section 15, race, ethnic origin and colour are protected.
Canada also holds international obligations under international human rights treaties it has signed. One of these treaties is the International Convention on the Elimination of all forms of Racial Discrimination. As a signatory of this treaty, Canada must abide by the articles contained under the treaty to protect and respect the rights contained in the treaty.
When someone has been racially discriminated against, and that discrimination violates one of the legal instruments mentioned above, there are a number of mechanisms in place that individuals and groups can utilize to enforce their rights. This section will provide information on how to issue a complaint with a provincial or national Human Rights tribunal, make a Charter claim, access and make a complaint to police bodies and commissions, and make a complaint to international human rights treaty bodies.
International human rights are a set of legal and moral international standards surrounding the dignity, respect and rights we as humans all possess. International human rights are regarded as beginning with the United Nations General Assembly adopting the Universal Declaration of Human Rights in 1948. (Universal Declaration of Human Rights (UDHR)).
The UDHR is regarded as a highly influential international human rights declaration, providing a clear and universal definition of human dignity and values, setting out civil, political, social and cultural rights, and emphasizing that all persons are entitled to these rights without distinction (Article 2). (Fact Sheet No. 2 (Rev.1) The International Bill of Rights, pg. 8).
In international human rights law, a declaration refers to statements of a universally accepted principle, as opposed to an agreement States agree to be bound with. Declarations are not legally binding, but represent a statement on a universal (or near universal) acceptance of principle. Declarations, such as the UDHR, hold significant authoritative moral force, and can eventually constitute customary international law which can be binding, making them an important part of international human rights law. (Government of Canada Glossary of Terms)
In addition to its own influence in international human rights law, the emergence of other international human rights conventions have influenced norms and standards for human rights across the globe.
Conventions (also known as treaties) are agreements between States, where they agree to bind themselves under international law, adhering to the provisions under the treaty. Treaties can cover a wide array of topics, including international human rights. (Government of Canada Glossary of Terms) In addition to the articles and provisions under an international human rights treaties, additional agreements, known as optional protocols, play an important role in international human rights.
Optional protocols can contain additional or supplemental elements or requirements that were not included in the initial treaty. As these are optional, States who have ratified the treaty are not obligated to agree to the protocol, however are often encouraged to. Optional protocols in international human rights law treaties often relate to the implementation of the treaty, or the implementation of complaints procedures under treaty-monitoring bodies. (Government of Canada Glossary of Terms)
Human Rights treaties and declarations cover a number of different rights. Under the UN, there are nine core international human rights treaties.
These include:
Among these treaties, the International Convention on the Elimination of All Forms of Racial Discrimination is the treaty which is specifically designated towards combatting racial discrimination. However, it should be noted that anti-discrimination and equality are foundational in international human rights, where, as outlined by the Office of the High Commissioner of Human Rights, “the prohibition of racial discrimination is enshrined in all core international human rights instruments.” (OHCHR Combatting Racial Discrimination)
Through the incorporation of articles prohibiting racial discrimination in all core human rights treaties, even if treaties are not explicitly focused on racial discrimination, the inclusion of the prohibition and the principle of equality obliges States to eradicate discrimination in the public and private spheres and adopt special measures to eliminate conditions which cause or help to perpetuate racial discrimination.
An example of this can be seen in the ICCPR, which is regarded as being highly relevant to protecting persons against racial discrimination. In the ICCPR, under article 26, the ICCPR stipulates that each person is equal before the law and without discrimination, are entitled to equal protection of the law. Article 26 continues by stipulating that the laws shall “prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” This article’s prohibition of discrimination and emphasis of the principle of equality is an important tool to protect persons experiencing racial discrimination. Throughout the other international human rights treaties, similar prohibitions and statements surrounding the principle of equality are found.
Not every state is a party to every international human right treaty. You can check the status of ratification for each state and each international human rights treaty and optional protocol here. Through this interactive site, you can find what treaties and optional protocols Canada is party to, and the status of its ratification.
Currently, Canada has signed onto the following International Human Rights Treaties:
In addition to the treaties, Canada has also ratified the following Optional Protocols, which (among other things) can indicate Canada’s willingness to accept the complaint mechanisms under the treaty-monitoring bodies under certain treaties.
In international law, when a State ratifies a treaty they are agreeing to be legally bound by the treaty terms. (International Human Rights Treaty Adherence Process in Canada). This requires the State to ensure that its actions (or inactions) do not defeat the object and purpose of the treaty or any terms of the treaty.
When States ratify a treaty, if there are certain terms of the treaty they are not in agreement with, they can enter a reservation or an interpretive declaration when they ratify the treaty.
A reservation is “a statement made by a state when ratifying or acceding to a treaty which excludes or modifies the legal effect of a particular treaty provision as it applies to that state.” (International Human Rights Law Definitions) An interpretive declaration is a “statement made by a state when ratifying or acceding to a treaty, which specifies the interpretation a state will give a particular treaty provision.” (International Human Rights Law Definitions)
Unlike interpretive declarations, which are not binding, but merely influence the interpretation of the treaty, reservations are binding both on the reserving state and on treaty-monitoring bodies’ monitoring of that state’s compliance.
Domestically, in order to enforce an international human rights treaty right, the treaty must be incorporated into domestic law. In order to incorporate international human rights law into domestic law, the Canadian federal government process for this is outlined here. In short however, incorporating international law into domestic law will typically require assessing whether current law reflects the treaty obligations, and, if not, introduction of new legislation or amendment of legislation to align with international obligations will occur.
However, even when international human rights law has not been fully incorporated into Canadian law, the Supreme Court of Canada has indicated that Canada’s international obligations are not without value. In Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, Justice L’Heureux-Dubé stated that “the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.”(para 70.) Thus, even when not fully incorporated, international human rights law can play an important role in Canadian law.
Internationally, enforcing a State’s adherence to an international human rights treaty can be done through a number of methods. For each core human rights treaty, there is a treaty-monitoring body, responsible for monitoring the implementation of the treaty. These treaty-monitoring bodies are made up of a number of independent experts with significant experience in the area.
Video: Treaty Bodies in Action
Under the treaties, in addition to adhering to the terms of the treaty, States are obliged to submit reports to the treaty-monitoring body regarding their progress on the implementation of the treaty. These reports are known as State Party Reports. The reporting requirements for the State Party Reports can differ from treaty to treaty, however they will typically involve the State preparing an initial report to the treaty-monitoring body a year after ratifying the treaty and then periodic reports, providing information on how it has given effect to the terms of the treaty. These reports can also respond to specific questions posed by the treaty-monitoring body.
Once States submit their reports, the treaty-monitoring bodies will review the reports and provide written observations to the State. These are known as Concluding Observations. In Concluding Observations, the treaty-monitoring body will respond to the States report, providing guidance and recommendations on how the State can further improve its actions to adhere to the treaty.
Both the State Party Reports and the Concluding Observations are available for public access on the treaty-monitoring bodies websites. For example, you can find the Committee on the Elimination of Racial Discrimination’s reports here.
In addition to the treaty-monitoring bodies’ reporting mechanisms, most of these bodies also have the ability to consider human rights complaints. Complaints can be brought by individuals or states.
Inter-state complaints (communications) are complaints brought by States against other States for alleged violations of an international human rights treaty. Individual complaints (also known as individual communications) are when an individual brings a complaint against a State for violating their human rights contained under an international human rights treaty. (OHCHR Individual Communications FAQ)
Please note that this section provides basic information regarding the individual complaints process. If you are looking to make a complaint, please refer to the OHCHR Individual Communications FAQ page and the relevant treaty-monitoring body for the necessary information.
In order to bring an individual complaint, a number of conditions must be met. First, there must be a complaint mechanism under the international human rights treaty. Currently, all core international human rights treaty bodies except the Committee on Migrant Workers have an individual complaint mechanism process.
Secondly, the State against whom the complaint is being brought must have ratified the treaty and recognized the competence of the treaty-monitoring body to receive and consider individual complaints. Recognizing this competence can be achieved through either the State ratifying an Optional Protocol or through making a declaration under a specific article of the treaty. For example, in order to make a complaint under the ICCPR, the State must have ratified the First Optional Protocol. For making a complaint under CERD, the State must have made a declaration under article 14. If the State meets these two conditions, the individual can bring a complaint alleging the State’s violation of their human rights.
The treaty-monitoring bodies provide both model complaint forms and how-to guides for complainants available on their websites. Following the information in these guides is important to ensure that your complaint meets both the technical and substantive requirements for the complaint.
Certain things to keep in mind include submitting the complaint in a legible written format, and must be in one of the UN languages (Arabic, Chinese, English, French, Russian and Spanish). Clearly identifying the alleged violations of rights and the corresponding rights under the relevant treaty and the remedies sought. The complaint should also identify how they have exhausted the domestic legal remedies.
If deemed admissible, the treaty-monitoring body will assess the complaint (alongside responses to the complaint from the State) in making their decision. Once the body makes a decision, they will circulate the decision to the complainant and the State and be made available on their website. A decision from the treaty-monitoring body is an authoritative interpretation of the treaty and cannot be appealed. If the complaint is successful, the decisions will contain recommendations to the State. The treaty-monitoring bodies will include recommendations to the State, which will be monitored in follow-up procedures. If States fail to adhere to these recommendations, the complaint will be kept under consideration until appropriate action is taken by the State.
As discussed above, treaty-monitoring complaints require that the State against which you are complaining has ratified the relevant treaty and has recognized the competence of the treaty-monitoring body complaint process.
If you have experienced racism, the CERD is likely the first international human rights treaty that comes to mind as it is dedicated to the elimination of racial discrimination. However, as Canada has not made a declaration under article 14 of CERD, recogniszng the competence of the CERD Commission, Canadians are unable to submit a complaint under CERD.
However, as prohibitions on discrimination can be found throughout the other core international human rights treaties, complaints regarding racial discrimination can still be made under other treaties, if rights protected under them are denied due to racial discrimination.
Canada is party to the complaint mechanisms for the following international human rights treaties:
More information on the treaty-monitoring body complaint mechanisms and procedures can be found here.
In addition to the treaty-monitoring bodies, there are several other United Nations bodies which can assist in enforcing international human rights. These include the Human Rights Council, the Universal Periodic Review and the Human Rights Council Special Procedures.
The Human Rights Council is an inter-governmental body within the United Nations. It consists of 47 States, responsible for the promotion and protection of all human rights around the globe. Among the work done by the Human Rights Council, is the complaints procedure. Unlike the treaty-monitoring body complaint procedures, the human rights council complaint procedure is confidential and a complaint can be made against any UN state and regarding any human right. The State against which the complaint is made does not need to be party to a particular treaty. For more information on the Human Rights Commission complaint process, you can visit their website here.
The Universal Periodic Review is another reporting mechanism, which holds states accountable for their human rights record. Under the Universal Periodic Review process, each UN member state is provided with the opportunity to report on and share with the other States the actions they have taken to meet their human rights obligations. In preparing for the Universal Periodic Review, States will prepare a National Report, outlining their progress in meeting their human rights obligations. This report can include information and submissions from groups, individuals and other entities. The review occurs as an interactive discussion between States, where UN member States can pose questions to the State under Review and make recommendations. Following the review, and outcome report will be prepared, including a summary of the recommendations made to the State. In subsequent reviews, a State’s progress in implementing the recommendations will be assessed.
For more information on how you can file a complaint, you can visit the Government of Canada Human Rights Complaints website here.
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