JOINT SUBMISSION TO THE 93rd SESSION OF THE COMMITTEE FOR THE CONVENTION ON THE ELIMINATION OF RACIAL DISCRIMINATION (CERD)

By

COLOUR OF POVERTY - COLOUR OF CHANGECHINESE & SOUTHEAST ASIAN LEGAL CLINIC

ONTARIO COUNCIL OF AGENCIES SERVING IMMIGRANTS andSOUTH ASIAN LEGAL CLINIC OF ONTARIO

July 2017

INTRODUCTION

Colour of Poverty - Colour of Change (COP-COC) is a community initiative based in the province of Ontario, Canada, which is made up of individuals and organizations working to build community-based capacity to address the growing racialization of poverty and the resulting increased levels of social exclusion and marginalization of racialized communities (both Indigenous Peoples and peoples of colour) across Ontario.

The Chinese & South East Asian Legal Clinic (CSALC) – formerly known as the Metro Toronto Chinese & Southeast Asian Legal Clinic (MTCSALC) – is a Canadian NGO mandated to provide free legal services to low income members of Chinese and Southeast Asian communities in Ontario. Apart from providing legal services, CSALC also engages in systemic advocacy to advance the rights of immigrants, racialized communities and other disadvantaged members of society. CSALC has ECOSOC consultative status at the UN.

OCASI - Ontario Council of Agencies Serving Immigrants is a council of autonomous immigrant and refugee-serving organizations in Ontario and the collective voice of the immigrant and refugee-serving sector in the province. Formed in 1978, OCASI has 220 member organizations across the province of Ontario. OCASI’s mission is to achieve equality, access and full participation for immigrants and refugees in every aspect of Canadian life.

South Asian Legal Clinic of Ontario (SALCO) is a not-for-profit organization established to enhance access to justice for low-income South Asians in the Greater Toronto area. Since 1999, SALCO has been working to serve the growing needs of South Asians in a culturally and linguistically sensitive manner. As a specialty clinic funded by Legal Aid Ontario, SALCO provides advice, brief services and/or legal representation in various areas of poverty law.

CSALC, OCASI and SALCO are founding Steering Committee members of Colour of Poverty - Colour of Change.

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This shadow report was prepared by conducting a review of relevant literature, and consultations with academics, lawyers, activists, social service providers, and community and research organizations working on issues of racial discrimination. The analysis focuses on both Federal and Ontario laws and policies.

This joint submission on the twenty-first to twenty-third periodic reports of Canada focuses on the issues facing racialized communities, newcomers (immigrants, refugees and migrants) in Canada, and in particular, the following issues:

Issue Page #1. Data Collection 32. The Racialization of Poverty and Labour Market Discrimination 43. Rights of Temporary Migrant Workers 104. Family Class Immigration Reforms and Spousal Sponsorship 115. Restrictive Asylum Laws and Policies 126. Immigration Detention 147. Racial Discrimination in National Security 168. Treaty-Based Nation-to-Nation Relationship with Indigenous Peoples 209. Violence Against Indigenous Women and Women of Colour 2210. Hate Crimes 2411. Racial Discrimination in Policing and Criminal Justice 2512. Racial Discrimination in Child Welfare 3113. Racial Discrimination in Education 3314. Racial Discrimination in Health Care 3515. WCAR and Canada’s Action Plan Against Racism 36

Most of the issues covered in this report either fall under the Federal Government’s sole jurisdiction or shared jurisdiction between the Federal and Ontario governments. Some issues, namely education and healthcare fall largely under the jurisdiction of the provincial government. But in areas such as education and child welfare for example, the Federal Government is solely responsible for the funding of the Indigenous education and child welfare systems on reserves.

Many of these issues were never addressed by the Canadian Government in its previous reports. To the extent that they were addressed, the Government of Canada has either not accepted the recommendations by the CERD Committee or has not acted on the recommendations. Some of these issues involve legislative changes that were implemented since the last CERD report. A few issues were raised but not addressed in the context of the experiences of Indigenous Peoples, peoples of colour or newcomer communities specifically.

It should also be noted within the rest of the submissions that anti-Indigenous racism is a form of discrimination that is distinct from discrimination against other racialized groups in Canada, because to a considerable extent it is an ongoing manifestation of the Canadian state’s colonial style relationship with Indigenous Peoples.

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On October 19, 2015, Canadians elected a new Federal Government. While the change in Government ignited considerable hope for change, and though the new Government has promised to address some longstanding and historic issues facing Indigenous Peoples in Canada, the systemic exclusion and marginalization of Indigenous Peoples is persistent and ongoing.

Additionally, the Canadian Government has yet to fully acknowledge the exclusion and discrimination as long experienced by communities of colour (referred to by governments as “visible minority groups”) in Canada, let alone propose any concrete measures to tackle the urgent and serious issues these ethno-racially diverse communities face.

Finally, all orders of Government - federal, provincial/territorial and municipal – have failed to continue working on and delivering on their respective obligations under the World Conference Against Racism (WCAR) Programme of Action – commitments that include a comprehensive and robust national action plan against racism.

Issue 1: Data Collection

Governmental failure at all levels to collect disaggregated data with respect to ethno-racial background is an overarching issue across the different areas where racial discrimination is manifested. This prevents the measurement and tracking of racial inequities and disparities; impairs assessment of the impacts of government laws, policies, and programs on marginalized communities; and impedes political and legal recognition of racial discrimination.

The new Federal Government’s restoration of the national mandatory long-form census – which includes questions relating to race, ethnicity, Indigeneity, and immigration status – is welcome.1 This will permit tracking of racial disparities across a range of economic, health and social indicators, such as income levels. However, complementary race-based administrative data sets are lacking across all orders of government – Municipal, Provincial and Federal. In areas of federal jurisdiction this presents particular concerns relating to racial discrimination, such as immigration detention, national security policies and federal income support programs2, as ethno-racially specific break-outs of the data are not made available (see sections 6 and 7).

The lack of race based data is reflective of the Federal Government’s refusal to adequately if not fully acknowledge the realities of racism, especially as they affect communities of colour. In the recently announced federal Poverty Reduction Strategy – the first ever in Canada – various priority vulnerable communities at heightened risk of poverty were identified as the focus for the strategy, namely, single people aged 45-64, single parents, recent immigrants, people with disabilities and Indigenous Peoples. Missing from the list, however, are peoples of colour – even though they are at least two times, and in some cases, six times more likely to live in poverty as

1 Statistics Canada, “2016 Census of Population Questions, Long Form (National Household Survey),” online: < http://www12.statcan.gc.ca/nhs-enm/2016/ref/questionnaires/questions-eng.cfm>.2 Include the Canada Child Tax Benefit, Old Age Security, Guaranteed Income Supplement

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compared with the general population.3 Among communities of colour, communities of African descent in particular are over-represented in virtually every category that signifies disadvantage. It is critical that race based data is disaggregated further to allow identification of the experiences of diverse peoples of colour and to measure the unique impacts of public policy interventions.

In Ontario, there is currently no systematic province-wide collection of race-based data. The Ontario Anti-Racism Directorate (ARD), created in February 2016 to “address and prevent systemic racism in government policy, legislation, programs and services,”4 has indicated that it plans to collect data in the areas of child welfare, justice, education, and health. The Directorate is still at a very early stage of its development, precluding evaluation of its framework for data collection and analysis. However, it is problematic that the ARD’s enabling legislation, the Anti-Racism Act, presently specifically exempts the collection of race-based data in the area of health, information that is fundamental and critical to its baseline data collection regime.5

Relevant Articles: 2(1)(c)

Recommendations: We ask that the Committee recommend that Federal, Provincial and Municipal governments in Canada collect and track disaggregated data with respect to ethno-racial background across all Departments, Ministries, Divisions and relevant institutions, and use this data to develop strategies for addressing systemic racism. Immigration status should not be used as a proxy or substitute category for race, and racial groups should not be homogenized under the category of “visible minority.” Data should be collected in a way that enables analysis of the intersecting effects of ethno-racial background with gender identity, sexual orientation, socioeconomic status, immigration status, age, and (dis)ability.

Issue Two: The Racialization of Poverty and Labour Market Discrimination

Poverty

Data from the 2011 National Household Survey (NHS) show that at least 20% of racialized Ontarians are living in poverty, as compared to 11.6% of White Ontarians.6 The last mandatory

3 “Towards a poverty reduction strategy – A backgrounder on poverty reduction in Canada”. Employment and Social Development Canada, February 2017. Government of Canada, “Poverty Reduction Strategy,” https://www.canada.ca/en/employment-social-development/programs/poverty-reduction/backgrounder.html4 Government of Ontario, “Anti-Racism Directorate,” online : <https://www.ontario.ca/page/anti-racism-directorate>.5 Bill 114, Anti-Racism Act, 2017, online: <http://ontla.on.ca/web/bills/bills_detail.do?locale=en&Intranet=&BillID=4694>, article 6(7).6 Sheila Block, Grace-Edward Galabuzi, and Alexandra Weiss, “The Colour Coded Labour Market By the Numbers: A National Household Survey Analysis” (2014) Wellesley Institute, http://www.wellesleyinstitute.com/wp-content/uploads/2014/09/The-Colour-Coded-Labour-Market-By-The-Numbers.pdf.

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national long-form census (in 2006) likewise found that 18.7% of racialized families were living in poverty as compared to only 6% of non-racialized families.7

Data from Statistics Canada indicate that a far greater proportion of Indigenous adults are low-income than non-Indigenous adults; for example, 53.4% of Indigenous women 65 and older are in low-income status, compared to 30.9% of non-Indigenous women in the same age category.8

Child poverty rates in Canada are 13% for White non-immigrant children, but 51% for Indigenous children (and 60% for Indigenous children living on reserve); 32% for children of immigrants; and 22% for children of colour.9 The exclusion of people living on reserve (who experience disproportionately high poverty rates) from Statistics Canada reports artificially deflates officially published poverty rates in Canada.10 Immigrant children of colour are likely to experience higher levels of poverty as compared to numbers cited here for children of colour and for immigrant children; however intersectional data is not included in the publicly available Census data.

Poverty is exacerbated by other forms of race-based disadvantage. For example, the effects of poverty for children living on reserve are intensified by chronic underfunding of schools and child welfare services, crowded housing, and undrinkable water (see section 8 on Canada’s Relationship with Indigenous Peoples).11

The unavailability of affordable housing is compounded by racial discrimination in the housing market; for example, a 2009 study by the Center for Equality Rights in Accommodation found significant discrimination against renters on the basis of ethno-racial background, single parenthood, and mental illness.12

As noted above, the Federal government’s National Poverty Reduction Strategy makes little to no mention of communities of colour, rendering these communities invisible while their issues remain unaddressed.13

7 Sheila Block, “Ontario’s Growing Gap: The Role of Race and Gender” (2010) Canadian Centre for Policy Alternatives, http://ywcacanada.ca/data/research_docs/00000140.pdf.8 Canadian Human Rights Commission, “Report on the Equality Rights of Aboriginal People” (2013), http://www.chrc-ccdp.gc.ca/sites/default/files/equality_aboriginal_report.pdf.9 David Macdonald and Daniel Wilson, “Shameful Neglect: Indigenous Child Poverty in Canada” (2016) Canadian Centre for Policy Alternatives, https://www.policyalternatives.ca/publications/reports/shameful-neglect.10 Ibid.11 David Macdonald and Daniel Wilson, “Shameful Neglect: Indigenous Child Poverty in Canada” (2016) Canadian Centre for Policy Alternatives, https://www.policyalternatives.ca/publications/reports/shameful-neglect.12 Centre for Equality Rights in Accommodation, “Sorry, It’s Rented: Measuring Discrimination in Toronto’s Rental Housing Market” (2009), http://www.equalityrights.org/cera/docs/CERAFinalReport.pdf.13 Note 1, supra

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Ontario has had a Poverty Reduction Strategy since 2008, but analysis of the experiences and needs of peoples of colour has been marginal at best, and mention of these groups have in certain instances been erased from the Poverty Reduction Strategy altogether, despite the fact that they are included in the poverty reduction legislation as among those who experience heightened risk of poverty.14

Employment Discrimination and the Racial Wage Gap

There are significant racialized wage and employment gaps in Canada. The 2006 mandatory long-form census evidenced a significant race and gender wage gap: women of colour made 53.4% as much as non-racialized (white) men; men of colour made 73.6% as much as non-racialized men; and women of colour made 84.7% as much as non-racialized women.15

Data from the 2011 NHS also evidenced a racial wage gap that intersects with the gender wage gap: Indigenous women earn 10% less than Indigenous men, and 26% less than non-Indigenous men; women of colour earn 21% less than racialized men, and 32% less than non-racialized men; and immigrant women earn 25% less than immigrant men, and 28% less than non-immigrant men.16

Wage gaps increase for Indigenous women, women of colour, and immigrant women with university degrees; for example, Indigenous women with a university degree earn 24% less than Indigenous men with a university degree, and 33% less than non-Indigenous men with a university degree. A 2016 report by the Canadian Centre for Policy Alternatives and Oxfam concludes that “[d]iscriminatory hiring and wage setting practices are undermining the benefits of education for these groups.”17

Peoples of colour resident in Ontario have higher unemployment rates than White residents – 10.5% versus 7.5%, despite having higher labour force participation rates – and studies suggest that the racial disparities in the labour market experiences of Ontarians is widening.18 Multiple 14 See, for example, Government of Ontario, “Poverty Reduction Strategy (Annual Report 2016),” https://www.ontario.ca/page/poverty-reduction-strategy-annual-report-2016.15 Sheila Block, “The Role of Race and Gender in Ontario’s Racialized Income Gap” (2010) Canadian Centre for Policy Alternatives, https://www.policyalternatives.ca/publications/reports/role-race-and-gender-ontarios-growing-gap.16 Oxfam and the Canadian Centre for Policy Alternatives, “Making Women Count: The Unequal Economics of Women’s Work” (2016), https://www.oxfam.ca/sites/default/files/making-women-count-report-2016.pdf.17 Oxfam and the Canadian Centre for Policy Alternatives, “Making Women Count: The Unequal Economics of Women’s Work” (2016), https://www.oxfam.ca/sites/default/files/making-women-count-report-2016.pdf.18 Sheila Block, Grace-Edward Galabuzi, and Alexandra Weiss, “The Colour Coded Labour Market By the Numbers: A National Household Survey Analysis” (2014) Wellesley Institute, http://www.wellesleyinstitute.com/wp-content/uploads/2014/09/The-Colour-Coded-Labour-Market-By-The-Numbers.pdf.

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studies have demonstrated that employers discriminate against job applicants with Asian-sounding names, even when applicants have equivalent education and experience.19

While the Federal government has implemented employment equity legislation for federally-regulated employers, changes in 2012 rendered compliance voluntary for federal contractors.20 There is no employment equity legislation for provincially-regulated employers in Ontario and almost all of the other provinces and territories (which collectively – through their respective areas of jurisdictional competence constitute the vast majority of the Canadian labour market).

Employer demand or expectation for demonstration of “Canadian work experience” produces discrimination against applicants with international credentials, leading to de-skilling of immigrants.21 However, even when the Canadian experience barrier is removed, discrimination persists (for example, employers may cite an applicant of colours’ allegedly inferior “soft skills”).

Employers’ use of police record checks in the hiring process also entrenches the exclusion of over-policed Indigenous groups and communities of colour (see Section 11 on Racial Discrimination in Policing and Criminal Justice) from the labour market. The John Howard Society of Ontario’s 2014 study on barriers to employment for youth with police records determined that 51% of the employers surveyed required police background checks on prospective employees, and 15% stated that they would not hire anyone with a criminal record (regardless of the nature of the record, how much time had passed since it was acquired, or its relevance to the job position).22 Ontario’s Police Record Checks Reform Act, passed in 2015, will limit the disclosure of non-conviction and non-criminal records, as well as mental health information. However, there is still no protection in Ontario from discrimination on the basis of convictions or non-conviction records.

Racialized people and immigrants are over-represented in part-time and precarious employment, characterized by lower wages, absence of benefits, job insecurity, and

19 Rupa Bannerjee, Jeffrey G Reitz, and Phil Oreopoulos, “Do Large Employers Treat Racial Minorities More Fairly? A New Analysis of Canadian Field Experiment Data” (2017), http://www.hireimmigrants.ca/wp-content/uploads/Final-Report-Which-employers-discriminate-Banerjee-Reitz-Oreopoulos-January-25-2017.pdf.20 Public Service Alliance of Canada, “A Brief History of Employment Equity in Canada” (2013), http://psacunion.ca/brief-history-employment-equity-canada.21 Philip Kelly, Lualhati Marcelino, and Catherine Mulas, “Foreign Credential Recognition: Research Synthesis 2009-2013” (2015) CERIS, http://ceris.ca/wp-content/uploads/2015/01/CERIS-Research-Synthesis-on-Foreign-Credential-Recognition.pdf; Bharathi Sethi, “‘No Canadian Experience?’ Barriers and Deskilling of Immigrant and Refugee Women in Grand Erie” (2014) CERIS, http://ceris.ca/wp-content/uploads/2015/03/CERIS-Research-Summary-Sethi.pdf.22 John Howard Society of Ontario, “Help Wanted: Reducing Barriers for Ontario’s Youth with Police Records” (2014), http://johnhoward.on.ca/wp-content/uploads/2014/07/johnhoward-ontario-help-wanted.pdf.

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unpredictability.23 Analysis of data from the Longitudinal Survey of Immigrants in Canada for example found that the average hourly wage of fulltime workers ($17.34) was much higher than the average hourly wage for part-time workers ($13.02).24 A recent research project on precarious employment in Southern Ontario found that workers of colour were less likely to receive supplemental benefits, be paid if they missed work, be offered opportunities for advancement, and be unionized than White workers; conversely, they were more likely to report suffering negative repercussions from asserting rights related to occupational health or employment and safety standards.25

The 2017 report of Ontario’s Changing Workplaces Review made several recommendations for legislative and policy changes to reduce the vulnerability of precarious workers, including: bolstering proactive initiatives for employment standards enforcement, to reduce the burden on employees to complain; increasing protection for employees seeking to enforce their rights (including protection from reprisals); greater penalties for non-compliance with employment standards legislation; equal pay for part-time, temporary, and seasonal employees with comparable full-time employees; and inclusion of domestic and agricultural workers in the Labour Relations Act (see section on Temporary Migrant Workers below). However the report stops short of making recommendations that would address unjust racialized labour market disparities and thus the critical need for provincial employment equity regimes. 26

23 The Poverty and Employment Precarity in Southern Ontario Research Group, “It’s More than Poverty: Employment Precarity and Household Wellbeing” (2013), https://pepsouwt.files.wordpress.com/2013/02/its-more-than-poverty-feb-2013.pdf; The Poverty and Employment Precarity in Southern Ontario Research Group, “The Precarity Penalty: The Impact of Employment Precarity on Individuals, Households, and Communities – And What To Do About It” (2015), https://pepsouwt.files.wordpress.com/2012/12/precarity-penalty-report_final-hires_trimmed.pdf.24 Access Alliance, “Like Wonder Women, Goddesses, and Robots: How Racialized Immigrant Women in Toronto are Impacted by and Respond to Employment Precarity,” (2014), http://accessalliance.ca/wp-content/uploads/2015/03/Like-Wonder-Women-Goddess-and-Robots_final.pdf.25 The Poverty and Employment Precarity in Southern Ontario Research Group, “It’s More than Poverty: Employment Precarity and Household Wellbeing” (2013), https://pepsouwt.files.wordpress.com/2013/02/its-more-than-poverty-feb-2013.pdf; The Poverty and Employment Precarity in Southern Ontario Research Group, “The Precarity Penalty: The Impact of Employment Precarity on Individuals, Households, and Communities – And What To Do About It” (2015), https://pepsouwt.files.wordpress.com/2012/12/precarity-penalty-report_final-hires_trimmed.pdf.26 C Michael Mitchell and John C Murray, “The Changing Workplaces Review: An Agenda for Workplace Rights: Final Report” (May 2017), https://files.ontario.ca/books/mol_changing_workplace_report_eng_2_0.pdf.

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The Ontario government tabled legislation27 in June 2017 that incorporates several recommendations from the Changing Workplaces Review report. However the Bill also stops short of addressing unjust racialized labour market disparities. Further, there is little in the Bill or government plans to address issues of employers violating employment standards provisions with impunity, employees being unable to recover lost wages due to recalcitrant employers, and fear of losing one’s job and being blacklisted in the community – a fear that is greatly exacerbated in Indigenous communities and communities of colour.28

Discrimination in the Ontario Public Service

Black employees in the Ontario Public Service have reported experiencing pervasive racial aggression and discrimination. Complaints about racism made under the Respectful Workplace Policy (formerly the Workplace Discrimination and Harassment Policy) have not been addressed, and complainants have faced reprisals from superiors29.

Relevant Articles: 5(e)(i), 5(e)(iii)

Recommendations: We ask that the Committee recommend that Canada: 1) centre the problem of the racialization of poverty in the national Poverty Reduction Strategy; and 2) reinstate mandatory compliance with employment equity for federal contractors and effectively enforce that regime. We ask that the Committee recommend that Ontario: 1) introduce and effectively enforce employment equity legislation; 2) collect and analyze data on the racialization of poverty through the Anti-Racism Directorate; 3) centre the problem of the racialization of poverty in its provincial Poverty Reduction Strategy; 4) remove barriers to recognition of international training by institutions, regulatory bodies and employers; 5) amend the Human Rights Code to protect individuals from discrimination on the basis of police records of conviction or non-conviction, and facilitate pardons/record suspensions; 6) ensure more effective enforcement of employment standards and labour relations; 7) strengthen enforcement of employment standards laws through increased prosecutions, higher fines and penalties, public databases for employers with outstanding orders to pay, and automatic Director’s liability for owed employment standards entitlements; 8) implement an Employee Wage Protection Fund to compensate victims of wage theft (which disproportionately affects Indigenous workers and workers of colour); and 9) provide public reports on incidents of racism in the public service, and better protect public service employees from racial discrimination and aggression, and reprisals.

27 Bill 148, Fair Workplaces, Better Jobs Act in June 201728 Ontario Ministry of Labour, “Proposed Changes to Ontario’s Employment and Labour Laws”, 30 May 2017, https://news.ontario.ca/mol/en/2017/05/proposed-changes-to-ontarios-employment-and-labour-laws.html.29 Interviews with Black Ontario Public Service Employees Network members. 2017.

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Issue Three: Rights of Temporary Migrant Workers

The number of temporary migrant workers in Canada has more than quadrupled since 2000 – as of 2014, there were 567,977 temporary status workers in the country.30 Migrant workers in low-wage streams of temporary migration – disproportionately workers of colour from the Global South – are exceptionally susceptible to exploitation and abuse.

Workers in the Seasonal Agricultural Workers Program (which is largely based on bi-lateral agreements with Mexico and several Caribbean states) are denied the opportunity to settle permanently in Canada, are bound to particular employers with exclusively tied work permits, and are required to live in employer-provided housing on or near the farms and greenhouses where they work.31 Workplace injuries frequently result in medical repatriation. “They live under persistent threat of deportation that forces them to work under difficult and exploitative conditions, especially in cases of conflict with employers, workplace injuries, shortages in work, or merely by virtue of employer whim”.32

Workers in the Caregiver Program (formerly the Live-In Caregiver Program), primarily women recruited from the Philippines, are similarly prone to exploitation and ill-treatment by employers. Again tied work permits make it difficult for caregivers to complain about abuse, non-payment of wages, and employers’ refusals to adhere to occupational safety standards. Changes introduced in 2014 eliminated the requirement that caregivers live with their employers, reducing their vulnerability. However, other changes – particularly the removal of the previously-existing guaranteed route to permanent residence, the imposition of a new cap on the number of caregivers who can apply for permanent residence in any given year, and the proliferation of limited spheres in which migrant caregiving is permitted – have increased the precariousness of workers in the Caregiver Program. Long delays in the processing of caregivers’ permanent residence applications (the processing time is typically more than four years) prolong the separation of caregivers from their families and increase vulnerability.33

While migrant workers contribute to social entitlement programs in Canada like Employment Insurance, the Canada Pension Plan, Old Age Security, health care, and child 30 Fay Faraday, “Canada’s Choice: Decent Work or Entrenched Exploitation for Canada’s Migrant Workers?” (2016) Metcalf Foundation, http://metcalffoundation.com/stories/publications/canadas-choice/.31 Gerardo Otero and Kerry Preibisch, “Citizenship and Precarious Labour in Canadian Agriculture” (2015) Canadian Centre for Policy Alternatives, https://www.policyalternatives.ca/publications/reports/citizenship-and-precarious-labour-canadian-agriculture.32 Justicia for Migrant Workers, “Submission to the Standing Committee on the Review of the Temporary Foreign Worker Program,” http://www.ourcommons.ca/Content/Committee/421/HUMA/Brief/BR8361852/br-external/JusticiaforMigrantWorkers-e.pdf.33 Fay Faraday, “Canada’s Choice: Decent Work or Entrenched Exploitation for Canada’s Migrant Workers?” (2016) Metcalf Foundation, http://metcalffoundation.com/stories/publications/canadas-choice/.

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benefits, their temporary status largely precludes them from accessing the programs.34 Migrant workers who are injured on the job are routinely sent back to their countries of origin, thus preventing them from accessing needed treatment, treatment which may not be available in their own countries, and the workers compensation benefits to which they are entitled. 35

Relevant Articles: 5(b), 5(e)(i), 5(e)(ii), 5(e)(iv)

Recommendations: We ask that the Committee recommend that federal and provincial governments increase protection for vulnerable migrant workers, including through: 1) provision of permanent residency upon arrival; 2) access to social entitlements; 3) incorporation of domestic and agricultural workers into the Labour Relations Act, increased support for collective organizing and bargaining of workers in vulnerable and precarious work; 4) establishment of a robust model for enforcing the Employment Standards Act, including mandating Directors’ liability for unpaid wages, implementing an anonymous tip line that provides leads for inspection, expedition of reprisal investigations, granting workers the right to remain in Canada in the event of an injury to obtain medical treatment and healthcare as well as full access to eligible Workers Compensation benefits; 5) inclusion of migrant workers in government consultations on all programs implicating temporary migrant labour; 6) adoption of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families; and 6) implementation of the recommendations from the Changing Workplace Review, particularly regarding inclusion of domestic and agricultural workers in existing labour and employment regimes.

Issue Four: Family Class Immigration Reforms and Spousal Sponsorship

Recent reforms to family class immigration for parents and grandparents include an annual cap of 10,000 on applicants and significantly stricter minimum annual income requirements for their sponsors.36 Since racialized Canadians have systemically poorer labour market outcomes than White Canadians, and since the vast majority of these family class immigrants come from India, China and other countries in the Global South, the changes will disproportionately impede reunification of such racialized families.37

34 Edward A Koning and Keith G Banting, “Inequality Below the Surface: Reviewing Immigrants’ Access to and Utilization of Five Canadian Welfare Programs” (2013) 39:4 Canadian Public Policy 234.35 Rosa Marchitelli. “Migrant worker program called 'worse than slavery' after injured participants sent home without treatment”. CBC News. May 16, 2016. http://www.cbc.ca/news/canada/jamaican-farm-worker-sent-home-in-a-casket-1.357764336 Fannie Sunshine, “Changes to Parent and Grandparent Program Not Enough” InsideToronto.com 20 December 2016.37 Jacklyn Neborak, “Family Reunification? A Critical Analysis of Citizenship and Immigration Canada’s 2013 Reforms to the Family Class,” Ryerson Centre form Immigration and Settlement Working Paper No 2013/8 (2013).

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The government’s cancellation of the two-year co-habitation requirement for spousal sponsorships – which was ostensibly to detect marriage fraud, but created pressure on women to remain in abusive domestic situations – is very welcome. However, the government’s accompanying promise that it is “doubly committed” to detecting fake marriages with stringent screening procedures threatens to exacerbate racial discrimination against immigrants from regions stereotyped as sources of marriages of convenience (ie. Asia and Africa)38 – including through reliance on discriminatory and ethno-specific like criteria for distinguishing fraudulent marriages from authentic ones.39

Relevant Articles: 5(d)(iv), 5(e)

Recommendations: We ask that the Committee recommend that Canada: 1) repeal the application cap and minimum income requirement for sponsorship of parents and grandparents; and 2) evaluate the impacts of immigration policies (including regarding spousal sponsorship) on racialized communities, and adopt measures to mitigate ethno-racially-disparate effects.

Issue Five: Restrictive Asylum Laws and Policies

Safe Third Country Agreement

The 2004 Safe Third Country Agreement (STCA) between Canada and the United States generally precludes refugees entering the country from the US from claiming asylum in Canada at regulated points of entry.40 The recent introduction of increasingly discriminatory policies in the United States has produced a sharp rise in asylum seekers who, because of the restrictions in the STCA, attempt to enter Canada through irregular border crossings, often under dangerous or life-threatening conditions.41

The designation of the United States as a “safe third country” had been overturned by a Federal Court judge in 2007, but this decision was reversed on procedural grounds by the Federal Court of Appeal in 2008.42 Migrant justice and human rights organizations have renewed their

38 Kathleen Harris, “Liberals ‘Doubly Committed’ to Tackling Marriage Fraud While Ending 2-Year Spousal Residency Rule” CBC News, 28 April 2017, http://www.cbc.ca/news/politics/liberal-immigration-marriage-fraud-1.4090694.39 Nicholas Keung, “Immigration Guide for Detecting Marriage Fraud Called ‘Racist and Offensive,’” Toronto Star (19 May 2015), online: <https://www.thestar.com/news/immigration/2015/05/19/immigration-guide-for-detecting-marriage-fraud-called-racist-and-offensive.html>.40 Government of Canada, “Canada-US Safe Third Country Agreement,” http://www.cic.gc.ca/english/department/laws-policy/menu-safethird.asp.41 Nicole Thompson, “Lawyers Urge Ottawa to Make Changes to Safe Third Country Agreement” Globe and Mail, 12 February 2017, https://www.theglobeandmail.com/news/politics/lawyers-urge-canada-to-make-changes-to-safe-third-country-agreement/article33994208/.42 Amnesty International, “Canada Must Strip USA of “Safe Third Country” Designation for Refugee Claimants” 30 January 2017, http://www.amnesty.ca/news/amnesty-international-canada-must-strip-usa-

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calls for Canada to withdraw from the Agreement in the wake of the US election. However, to this point the Canadian government has refused to revoke the STCA, and Canada has reportedly been sharing information on asylum seekers with US authorities.43

Designated Countries of Origin

Canada’s Designated Countries of Origin (DCO) scheme, implemented in 2012, discriminates between refugee claimants on the basis of their respective countries of origin. Claimants from countries deemed “safe” by the Minister of Citizenship and Immigration have half the time given other claimants – only 30 days – to prepare for their hearings, compromising their ability to gather evidence and engage legal support.44

As the government notes in its report to the Committee, a 2015 Federal Court decision has restored the right to appeal refugee board decisions for claimants from DCOs. However, the compressed timeframe for hearings remains in place. A 2017 review of the 2012 reforms to Canada’s refugee system, published by the Canadian Association for Refugee and Forced Migration Studies, concluded that the reforms have failed to reduce backlogs, created major delays in claims processing, negatively impacted the human rights of migrants (particularly regarding access to justice and procedural fairness), and exacerbated the criminalization of asylum seekers.45

LGBTQ2S Refugee Claimants

Racialized asylum seekers from countries outside North America/Europe claiming persecution on grounds of sexual orientation or gender identity are disadvantaged in the refugee process by: decision-makers’ Eurocentric preconceptions about authentic LGBTQ2S identity; the difficulty of providing evidence of LGBTQ2S identity when coming from a home country where such identities are criminalized and need to be kept secret; and decision-makers’ stereotypes about particular countries as sources of fraudulent refugee claimants.46 Lawyers representing

%E2%80%9Csafe-third-country%E2%80%9D-designation-refugee-claimants.43 Carl Meyers, “Canada is Sharing Info on Asylum Seekers with the Trump Administration” 10 March 2017, http://ccrweb.ca/en/canada-sharing-info-asylum-seekers-trump-administration.44 Government of Canada, “Designated Countries of Origin,” http://www.cic.gc.ca/english/refugees/reform-safe.asp.45 Idil Atak, Graham Hudson, and Delphine Nakache, “‘Making Canada’s Refugee System Faster and Fairer’: Reviewing the Stated Goals and Unintended Consequences of the 2012 Reform” (2017) Canadian Association for Refugee and Forced Migration Studies, http://carfms.org/wp-content/uploads/2017/05/CARFMS-WPS-No11-Idil-Atak.pdf.46 Envisioning Global LGBT Human Rights, “Is Canada a Safe Haven?” (September 2015), online: <https://www.dropbox.com/s/nn9qork9zqi2da1/Is%20Canada%20A%20Safe%20Haven%20-%20Report%202015.pdf?dl=0>; DAB Murray, “‘Authentic’ LGBT Refugee Claimants and Homonationalism in the Canadian Refugee System” (2014) 56:1 Anthropologica.

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LGBTQ2S claimants have reported instances of clients being asked graphic and intrusive questions about sexual practices during hearings. These disadvantages are compounded by the frequent inadequacy of translation services at hearings.

The Immigration and Refugee Board released guidelines in 2017 to avoid stereotyping and inappropriate questioning in hearings involving LGBTQ2S claimants;47 however, as guidelines, they are not legally binding.48

Relevant Articles: 5(a), 5(b)

Recommendations: We ask that the Committee recommend that Canada: 1) withdraw the Safe Third Country Agreement with the United States; 2) remove the Designated Countries of Origin scheme; and 3) implement mechanisms for tracking and remedying racial discrimination in refugee hearings.

Issue Six: Immigration Detention

According to data provided by the Canadian Border Services Agency (CBSA), 6,251 people were held in immigration detention in 2016/2017, including 151 minors. This is a slight decrease from 2015/2016, when 6,596 people, including 181 minors, were detained.49 94.2% are detained on grounds other than allegedly posing a security threat.50 The CBSA does not publish detention statistics disaggregated on the basis of race, ethnicity, or country of origin. However, anecdotal evidence suggests that long-term detainees are disproportionately racialized: first, because racialized undocumented migrants are more likely to be detained rather than receive a notice to appear for a hearing; second, because of difficulty obtaining identity documents from their countries of origin; and third, because of the paucity of legal aid for detention reviews.

Canada does not impose a maximum time limit on immigration detention. For example, in April 2017, the Ontario Superior Court ordered the release of a West African immigration detainee held in a maximum-security jail for seven years (including 103 consecutive days spent

47 Immigration and Refugee Board of Canada, “Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression” 1 May 2017, http://www.irb-cisr.gc.ca/Eng/BoaCom/references/pol/GuiDir/Pages/GuideDir09.aspx.48 Immigration and Refugee Board of Canada, “Policy on the Use of Chairperson’s Guidelines” 27 October 2003, http://www.irb-cisr.gc.ca/Eng/BoaCom/references/pol/pol/Pages/PolGuideDir.aspx.49 Canadian Border Services Agency, “Detention Statistics” last modified 23 May 2017, http://www.cbsa-asfc.gc.ca/security-securite/detent-stat-eng.html.50 Never Home, “Legislating Discrimination in Canadian Immigration” (2015), http://www.neverhome.ca/detention/.

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in solitary confinement).51 This is in contrast with the majority of other countries in Europe and North America that do implement a time limit for immigration detention.52

The government states in its report to the Committee that immigration detainees “are protected from arbitrary detention, and have access to effective remedies.” However, data analyzed by the End Immigration Detention Network in 2014 found significant variance in the release rates between individual immigration detention board members, from 5% to 33%; and between regions, from 9% in Central Canada to 27% in Western Canada – calling into question the non-arbitrariness and fairness of decisions to continue detention.53

Moreover, nearly one-third of immigration detainees are held in provincial jails (rather than dedicated immigration holding centres) – where, in the words of the University of Toronto’s International Human Rights Program (IHRP), they fall into a “legal black hole” between federal and provincial jurisdiction.54 “The lack of communication between CBSA and provincial jails is best illustrated by the fact that, on at least one occasion, Minister’s counsel showed up to the detention review hearing for a deceased man [ . . . ] between one to two weeks after his death,” according to the IHRP.55 Since 2000, at least 15 people have died in immigration detention.56

The government’s report claims that “children are detained only as a measure of last resort, taking into account [ . . . ] the best interests of the child.” However, the absence of well-developed alternatives to immigration detention (such as community-based non-custodial programs) means that children must either be detained with their parents or be separated from them; both options are psychologically harmful for children and contrary to their best interests.57 The Designated Foreign Nationals regime, implemented by the 2012 Protecting Canada’s

51 Brendan Kennedy, “Jailed Seven Years by Canada, Kashif Ali Now Walks Free,” Toronto Star (28 April 2017), online: <https://www.thestar.com/news/canada/2017/04/28/jailed-seven-years-by-canada-kashif-ali-now-walks-free.html>.52 Brendan Kennedy, “I can’t tell them what I don’t know,” Toronto Star (17 March 2017), online: <http://projects.thestar.com/caged-by-canada-immigration-detention/part-2/>.53 Syed Hussan, “Indefinite, Arbitrary and Unfair: The Truth About Immigration Detention in Canada” (2014) End Immigration Detention Network.54 International Human Rights Program, University of Toronto, “We Have No Rights: Arbitrary Imprisonment and Cruel Treatment of Migrants with Mental Health Issues in Canada” (2015), http://ihrp.law.utoronto.ca/utfl_file/count/PUBLICATIONS/IHRP%20We%20Have%20No%20Rights%20Report%20web%20170615.pdf.55 International Human Rights Program, University of Toronto, “We Have No Rights: Arbitrary Imprisonment and Cruel Treatment of Migrants with Mental Health Issues in Canada” (2015), http://ihrp.law.utoronto.ca/utfl_file/count/PUBLICATIONS/IHRP%20We%20Have%20No%20Rights%20Report%20web%20170615.pdf.56 Muriel Draaisma, “Federal Government Reviewing Immigration Detention Process After String of Deaths” CBC News, 16 May 2016, http://www.cbc.ca/news/canada/toronto/public-safety-immigration-detention-1.3584700.57 University of Toronto International Human Rights Program, “Invisible Citizens: Canadian Children in Immigration Detention” (2017), http://ihrp.law.utoronto.ca/utfl_file/count/PUBLICATIONS/Report-InvisibleCitizens.pdf.

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Immigration System Act, mandates compulsory detention for migrants deemed “irregular arrivals,” including children older than 16.58

The IHRP’s study of immigration detention of children concludes that the best interests of Canadian children detained with their parents are not sufficiently or consistently accounted for: “de facto detained children do not have their own detention review hearings, and until recently, adjudicators explicitly declined to consider the best interests of Canadian children in the detention reviews of their parents. While a recent development in the courts permits consideration of the best interests of Canadian children in their parents’ detention reviews, the overall focus of the detention review analysis remains on the detained parent(s).”59

Relevant Articles: 5(a), 5(d)(i)

Recommendations: We ask that the Committee recommend that Canada: 1) impose a time limit on immigration detention; 2) make detention truly a last resort, and develop robust and meaningful community-based alternatives to detention; 3) cease holding immigration detainees in provincial jails; 4) ensure that the best interests of all children in detention are a primary consideration in detention-related decisions; and 5) collect and publish data disaggregated by ethno-racial background and country of origin with respect to all aspects of detention (including data regarding reasons for detention and length of detention).

Issue Seven: Racial Discrimination in National Security

National security agencies have so far ignored the Canadian Human Rights Commission’s call to collect and analyze race-disaggregated data on their operations, so that the impact of security practices and policies on Indigenous communities and communities of colour can be assessed. “Analysis of a decade of research clearly shows that there are no means to assess the human rights performance of Canada’s national security organizations. Not only is there no accountability framework in place, national security organizations are not required to collect and report data on human rights performance in practice,” the Commission points out.60

Racial Profiling

Government reports on national security by Public Safety Canada and the Canadian Security Intelligence Service (CSIS) focus almost exclusively on Muslim individuals and

58 Canadian Association of Refugee Lawyers, “Designated Foreign Nationals Regime” http://www.carl-acaadr.ca/our-work/issues/DFNR.59 University of Toronto International Human Rights Program, “Invisible Citizens: Canadian Children in Immigration Detention” (2017), http://ihrp.law.utoronto.ca/utfl_file/count/PUBLICATIONS/Report-InvisibleCitizens.pdf.60 Canadian Human Rights Commission, “Human Rights Accountability in National Security Practices: A Special Report to Parliament,” (November 2011), online: <http://www.chrc-ccdp.gc.ca/sites/default/files/chrc-specialreport-28112011.pdf>.

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organizations as the source of terrorism61 – ignoring the more than 100 extreme right-wing and White supremacist groups active across Canada.62

Young Muslims have reported being targeted for monitoring by CSIS or police intelligence because of participation in activism for causes like Palestinian rights.63 Instances of university students, among others, being aggressively recruited by security agencies to become informants on “radicalized” peers have been reported.

Muslim, South Asian, Arab, and Black travellers have reported experiencing racial profiling at airports and border crossings: being stopped, being followed by air marshals, being placed on no-fly lists, having their names flagged, being selected for “random” screening, being subjected to body and/or luggage searches, and being questioned about religious beliefs.64 The National Council of Canadian Muslims notes that 15% of the human rights complaints it received in 2014 were from Muslims who were “turned away from border crossings without any explanations.”65 The proposed Preclearance Act (Bill C-23), which will give US border guards new powers to question, search, and detain in pre-clearance areas on Canadian territory, threatens to exacerbate Muslims’ and other racialized travellers’ experiences of discriminatory securitization.66

There have been several reported cases of Muslims being denied security clearance for employment purposes, for apparently discriminatory reasons. For example, according to a lawyer

61 See, for example, Public Safety Canada, “Building Resilience Against Terrorism: Canada’s Counter-Terrorism Strategy,” (2012), http://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/rslnc-gnst-trrrsm/index-en.aspx; Public Safety Canada, “2013 Public Report on the Terrorist Threat to Canada,” (2013), http://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/trrrst-thrt-cnd/index-en.aspx; Public Safety Canada, “2014 Public Report on the Terrorist Threat to Canada,” (2014), http://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/2014-pblc-rpr-trrrst-thrt/index-en.aspx; Public Safety Canada, “2016 Public Report on the Terrorist Threat to Canada,” (2016), https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/2016-pblc-rpr-trrrst-thrt/index-en.aspx.62 Barbara Perry and Ryan Scrivens, “Uneasy Alliances: A Look at the Right-Wing Extremist Movement in Canada” (2016) 39:9 Studies in Conflict and Terrorism 819.63 Ontario Human Rights Commission, “Under Suspicion: Research and Consultation Report on Racial Profiling in Ontario” (2017), http://ohrc.on.ca/en/under-suspicion-research-and-consultation-report-racial-profiling-ontario; Baljit Nagra and Paula Maurutto, “Crossing Borders and Managing Racialized Identities: Experiences of Security and Surveillance Among Young Canadian Muslims” (2016) 41:2 Canadian Journal of Sociology 165.64 International Civil Liberties Monitoring Group, “Report of the Information Clearinghouse on Border Controls and Infringements to Travellers’ Rights” (2014), http://iclmg.ca/wp-content/uploads/sites/37/2014/03/R-Clearinghouse-border-controls.pdf. 65 Ontario Human Rights Commission, “Under Suspicion: Research and Consultation Report on Racial Profiling in Ontario” (2017), http://ohrc.on.ca/en/under-suspicion-research-and-consultation-report-racial-profiling-ontario.66 Aurangzeb Qureshi, “This Bill Will Make it Even Riskier for Muslims to Cross the Border to the US” CBC News, 8 March 2017, http://www.cbc.ca/news/opinion/bill-c-23-1.4014113.

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specializing in national security cases, one Muslim client’s participation in paintball (described by CSIS as “a form of jihad for Sunni Muslims”) was cited as a reason for denial.

Indigenous activists have also been targeted as national security threats by security agencies. The RCMP’s Project Sitka, for instance, monitored 89 Indigenous activists deemed threats for participation in protests.67

Security Certificates

Security certificates have been applied to non-citizens deemed inadmissible to Canada on security grounds, on the strength of secret evidence – permitting indefinite detention or imposition of extremely stringent house arrest conditions.68 Two Arab Muslim security certificate detainees – Mohamed Harkat and Mohammad Mahjoub – are currently facing deportation to possible torture in Algeria and Egypt, respectively.69

The Anti-Terrorism Act, 2015

Anti-terrorism legislation passed in 2015 drastically augments the powers of security agencies and police, without counter-balancing oversight and review mechanisms.

Civil liberties organizations have raised concerns about many of the changes introduced by the Anti-Terrorism Act, 2015, which include: expansion of information-sharing powers between government bodies about activities that “undermine the security of Canada”; widening of the criteria for placement on Canada’s no-fly list; creation of a new, broad criminal offence of “advocating or promoting the commission of terrorism offences in general”; lowering of the threshold for preventive arrest and imposition of recognizances with conditions; extension of the maximum time of preventive detention; and expansion of CSIS’s mandate from intelligence-gathering to threat disruption, including permission to violate the Charter of Rights and Freedoms if a judicial warrant has been obtained.70

67 Sean Craig, “RCMP Tracked 89 Indigenous Activists Considered ‘Threats’ for Participating in Protests” National Post, 13 November 2016, http://news.nationalpost.com/news/canada/rcmp-tracked-89-indigenous-activists-considered-threats-for-participating-in-protests.68 Audrey Macklin, “The Canadian Security Certificate Regime” (2009) Centre for European Policy Studies, http://aei.pitt.edu/10757/1/1819.pdf.69 Andrew Duffy, “Government Launches Deportation Proceedings Against Harkat” Ottawa Citizen, 18 September 2015, http://ottawacitizen.com/uncategorized/government-moves-to-deport-harkat; Matthew Behrens, “Trudeau’s Torture Policies No Different Than Trump’s” Rabble, 24 February 2017, http://rabble.ca/columnists/2017-02-24t000000/trudeaus-torture-policies-no-different-trumps.70 British Columbia Civil Liberties Association, “8 Things You Need to Know About Bill C-51” 11 March 2015, https://bccla.org/2015/03/8-things-you-need-to-know-about-bill-c-51/; Canadian Civil Liberties Association and Canadian Journalists for Free Expression, Challenge to Bill C-51 in Ontario Superior Court, https://ccla.org/cclanewsite/wp-content/uploads/2015/08/Issued-Notice-of-Application-Bill-C-51-C1383715xA0E3A.pdf.

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Complicity with Torture

The Canadian government has compensated Maher Arar, Ahmad El-Maati, Abdullah Almalki, and Muayyed Nureddin for its involvement in their secret imprisonment and torture, and recently announced compensation for Omar Khadr. However, another Muslim man tortured with Canadian complicity - Abousfian Abdelrazik has not yet received any compensation or apology.

Canadian security and foreign affairs officials implicated in torture have not been prosecuted, and the recommendations of two official inquiries into the Arar, El-Maati, Almalki, and Nureddin cases (the Iacobucci and O’Connor Inquiries) for preventing future abuses have not been implemented.71 Moreover, memos allowing security agencies to share information with regimes known to torture have not been rescinded.72

Relevant Articles: 5(a), 5(b), 5(e)(ii), 5(e)(vii), 5(e)(viii), 5(e)(ix)

Recommendations: We ask that the Committee recommend that Canada: 1) study and publish analyses on the phenomenon of White supremacist and right-wing political violence; 2) collect and publish ethno-racially disaggregated data regarding counter-terrorism practices, including on visitations by security officials, composition of the no-fly list, and security clearance denials; 3) abolish the security certificate regime, and cease deportation proceedings under it; 4) repeal the Anti-Terrorism Act, 2015 (and not just amend it); 5) adhere to its obligations under the United Nations Convention Against Torture to compensate the tortured and prosecute complicity in torture; and 6) revoke the torture memos, and implement the Iacobucci and O’Connor Inquiry recommendations.

Issue Eight: Treaty-Based Nation-to-Nation Relationship with Indigenous Peoples

In his 2014 report on Canada, the UN Special Rapporteur on the Rights of Indigenous Peoples James Anaya concluded that: “[t]he numerous initiatives that have been taken at the federal and provincial/territorial levels to address the problems faced by Indigenous Peoples have been insufficient. The well-being gap between Aboriginal and non-Aboriginal people in Canada has not narrowed over the last several years, treaty and Aboriginal claims remain persistently

71 Frank Iacoubucci, “Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin” (2008), http://epe.lac-bac.gc.ca/100/206/301/pco-bcp/commissions/internal_inquiry/2010-03-09/www.iacobucciinquiry.ca/pdfs/documents/final-report-copy-en.pdf; Dennis O’Connor, “Report of the Events Relating to Maher Arar” (2006), http://www.sirc-csars.gc.ca/pdfs/cm_arar_bgv1-eng.pdf.72 Public Safety Canada, “Ministerial Direction on Information Sharing with Foreign Entities” (2011), http://iclmg.ca/wp-content/uploads/sites/37/2014/04/Vic-Toews-Torture-memos.pdf.

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unresolved, Indigenous women and girls remain vulnerable to abuse, and overall there appear to be high levels of distrust among Indigenous Peoples toward government at both the federal and provincial levels.”73

The continuing organization of Canada-Indigenous relationships under the Indian Act undermines if not systematically precludes Indigenous self-government by rendering almost all decisions subject to the approval of the Minister of Indian and Northern Affairs Canada, such as changes in band by-laws, funding for reserve programs and infrastructure, and leasing of land.74

While Aboriginal rights are enshrined in section 35 of the Canadian Constitution, as the State notes in its report to the Committee, individuals attempting to exercise these rights have reported encountering racial discrimination by authorities. The Ontario Human Rights Commission’s 2017 research report on racial profiling, Under Suspicion, describes how Indigenous People exercising their harvesting rights have been subjected to extreme scrutiny by conservation officers, and wrongfully charged and prosecuted for hunting, fishing, or trapping without a licence.75

In 2016, Canada removed its permanent objector status to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), including its previous objections to the requirement that states obtain “free, prior and informed consent” from Indigenous Peoples before “the approval of any project affecting their lands or territories.”76 However, there are several major development projects that continue to progress against the protests of affected Indigenous communities, including (but not limited to): the Pacific Northwest LNG export terminal; the Site C dam in British Columbia; the Kinder Morgan Trans-Mountain Pipeline; the Enbridge Line 3 pipeline; and exploratory drilling by Copper One at Barriere Lake.77

Living conditions on reserves deny Indigenous Peoples safe water and adequate housing. As of January 2016, there were 134 drinking water advisories – 90 of them in Ontario – for

73 James Anaya, “The Situation of Indigenous Peoples in Canada” (2014),http://www.ohchr.org/Documents/Issues/IPeoples/SR/A.HRC.27.52.Add.2-MissionCanada_AUV.pdf.74 James Anaya, “The Situation of Indigenous Peoples in Canada” (2014), http://www.ohchr.org/Documents/Issues/IPeoples/SR/A.HRC.27.52.Add.2-MissionCanada_AUV.pdf.75 Ontario Human Rights Commission, Under Suspicion: Research and Consultation Report on Racial Profiling in Ontario (2017),http://ohrc.on.ca/en/under-suspicion-research-and-consultation-report-racial-profiling-ontario#overlay-context=en/user.76 Gloria Galloway, “Ottawa Drops Objections to UN Resolution on Indigenous Consent,” Globe and Mail,24 April 2017,http://www.theglobeandmail.com/news/politics/ottawa-drops-objections-to-un-resolution-on-indigenous-consent/article34802902.77 James Wilt, “Cant’ Stop, Won’t Stop: 500 Days of Trudeau’s Broken Promises” Desmog Canada, 10 February 2017, https://www.desmog.ca/2017/02/10/can-t-stop-won-t-stop-500-days-trudeau-s-broken-promises; Amnesty International, “The Point of No Return: The Human Rights of Indigenous Peoples Threatened by the Site C Dam” (2016), https://www.amnesty.ca/sites/amnesty/files/Canada%20Site%20C%20Report.pdf; James Anaya, “The Situation of Indigenous Peoples in Canada” (2014), http://www.ohchr.org/Documents/Issues/IPeoples/SR/A.HRC.27.52.Add.2-MissionCanada_AUV.pdf.

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Indigenous reserves across Canada. According to Human Rights Watch, factors contributing to the water crisis include: the lack of binding regulations on water quality on First Nations reserves; persistent under-funding and arbitrary budgeting for water system costs; lack of support for household water and wastewater systems; worsening conditions of source water; and lack of capacity and support for water operators.78

In 2013, approximately one-quarter of Indigenous adults lived in overcrowded homes, and nearly half of these were in states of serious disrepair.79 Government investments are inadequate to address these deficits. 80

In January 2016, the Canadian Human Rights Tribunal (CHRT) issued a decision finding that the Canadian government has been racially discriminating against Indigenous children, by consistently underfunding child and family services on reserves and inadequately implementing Jordan’s Principle (which is meant to ensure that the government of first contact pays for health services without delay).81 The First Nations Child and Family Caring Society estimated that the immediate funding shortfall is at least $155 million.82 However, the government continues to be in breach of the CHRT’s order to equalize funding for child services on- and off-reserve. The Tribunal has issued three non-compliance orders against the government since the ruling; the latest order, issued in May 2017, found that the federal government’s failure to properly actualize Jordan’s Principle was partially responsible for the suicide deaths of two twelve-year-old Indigenous girls.83 Rather than implementing the order as issued by the CHRT, in June 2017, the Federal Government brought an application for judicial review of the CHRT decision to the Federal Court, arguing that the decision was unreasonable.

The Truth and Reconciliation Commission – which reviewed the long history of residential schools that removed Indigenous children from their families and attempted to eliminate Indigenous spirituality, culture, identities and practices – issued ninety-four Calls to Action in its 2015 final report, in areas which include child welfare, education, health, the legal system, and

78 Human Rights Watch, “Make it Safe: Canada’s Obligation to End the First Nations Water Crisis” (2016), online: <https://www.hrw.org/report/2016/06/07/make-it-safe/canadas-obligation-end-first-nations-water-crisis>.79 “Indigenous Housing Crisis Takes a Terrible Toll: Editorial,” Toronto Star,19 December 2016,https://www.thestar.com/opinion/editorials/2016/12/19/indigenous-housing-crisis-takes-a-terrible-toll-editorial.html.80 “Indigenous Housing Crisis Takes a Terrible Toll: Editorial,” Toronto Star, 19 December 2016, https://www.thestar.com/opinion/editorials/2016/12/19/indigenous-housing-crisis-takes-a-terrible-toll-editorial.html.81 Canadian Human Rights Tribunal, First Nations Child and Family Caring Society of Canada et al v Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada) 2016 CHRT 11.82 First Nations Child and Family Caring Society of Canada, “Information Sheet: Implementing the CHRT Remedies: Canada’s Failure to Comply,” 16 November 2016,https://fncaringsociety.com/sites/default/files/CHRT%20remedy%20sheet%20Nov%2014%202016.pdf.83 Canadian Human Rights Tribunal, First Nations Child and Family Caring Society of Canada et al v Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada) 2017 CHRT 14;

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the media.84 While the Federal and other Governments have pledged to fulfill the 94 Calls to Action, concrete and meaningful action and implementation has so far been minimal.

Relevant Articles: 5(e)(iii), 5(e)(iv), 5(e)(vi)

Recommendations: We ask that the Committee recommend that Canada: 1) fully and accountably implement all of the Truth and Reconciliation 94 Calls to Action and the provisions of the UNDRIP (particularly regarding the right to free, prior, and informed consent); 2) adhere to the ruling of the CHRT by adequately funding child services on reserves, and fully implement Jordan’s Principle; 3) acknowledge, fortify and expand Indigenous self-government as a fourth order of government; 4) remedy disparities between on-reserve and off-reserve living conditions.

Issue Nine: Violence Against Indigenous Women and Women of Colour

Missing and Murdered Indigenous Women and Girls

According to a 2014 report by the Royal Canadian Mounted Police, 1,017 Indigenous women or girls were murdered between 1980 and 2012, and a further 164 are missing.85 More recent figures from the Native Women’s Association of Canada (NWAC), however, suggest that the actual number of missing and murdered Indigenous women and girls (MMIWG) is underreported and could be higher than 4,000.86

In 2016, the federal government announced that it would be holding national inquiry on MMIWG. However, the inquiry has been criticized for: the limitations of its terms of reference – which do not include an explicit mandate to review policing policies and practices, or a mechanism for review of individual cases; inadequate consultation with and inclusion of families of MMIWG and front-line organizations; significant delays in the proceedings; and failure to provide sufficient mental health support for families re-traumatized by participation in the pre-inquiry process.87 The NWAC’s most recent report card on the Inquiry (released May 2017) gave the Inquiry failing grades in ten out of fifteen categories, including for its failure to include families, absence of transparency, and departure from timelines.88

84 Truth and Reconciliation Commission of Canada, “Honouring the Truth, Reconciling for the Future” (2015), http://www.trc.ca/websites/trcinstitution/index.php?p=890.85Royal Canadian Mounted Police, “Missing and Murdered Indigenous Women and Girls,” http://www.rcmp-grc.gc.ca/aboriginal-autochtone/mmaw-fada-eng.htm.86 John Paul Tasker, “Confusion Reigns Over Number of Missing, Murdered Indigenous Women” CBC News, 16 February 2016, http://www.cbc.ca/news/politics/mmiw-4000-hajdu-1.3450237.87 Amnesty International, “Statement on Terms of Reference for the National Inquiry into Missing and Murdered Indigenous Women and Girls in Canada” 20 July 2016, http://www.amnesty.ca/news/statement-terms-reference-national-inquiry-missing-and-murdered-indigenous-women-and-girls;88 Native Women’s Association of Canada, “Inquiry Report Card” (May 2017), https://www.nwac.ca/wp-content/uploads/2017/05/NWAC-Inquiry-Report-Card-May-2017-Final.pdf.

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The Zero Tolerance for Barbaric Cultural Practices Act

The 2015 Zero Tolerance for Barbaric Cultural Practices Act specifically targets polygamy, forced marriages, and “honour killings” by making changes to the Immigration and Refugee Protection Act, the Civil Marriage Act, and the Criminal Code, including: a new inadmissibility provision in immigration law for polygamy; new criminal offences for participation in forced and under-aged marriages; and narrowing of the provocation defence. The description of the targeted forms of violence against women – strongly linked in the popular imagination with Muslim, Arab, and South Asian communities – as “barbaric cultural practices” – reinforces stigmatizing stereotypes about these communities.

Moreover, as many organizations have argued, the Barbaric Cultural Practices Act is unlikely to increase the safety of vulnerable women – and indeed, will probably have the opposite effect. For example, the polygamy exclusion provision puts women in polygamous relationships at risk for removal.89 The criminalization of forced marriage will likely deter women in forced marriages from seeking help.90

Relevant Articles: 5(b)

Recommendations: We ask that the Committee recommend that Canada: 1) provide greater support for families and Indigenous women’s organizations to take part in the MMIWG inquiry; 2) ensure accountability in implementation of its recommendations; 3) repeal the Zero Tolerance for Barbaric Cultural Practices Act, and provide greater economic and social support for racialized women experiencing violence.

Issue Ten: Hate Crimes

Hate crime is not an independent criminal offence in Canada; sections 318, 319, and 320 of the Criminal Code criminalize hate propaganda, and “hateful motive” is an aggravating factor in sentencing.

In 2013, section 13 of the Canadian Human Rights Act, which had made communication of hateful messages legal grounds for complaint, was repealed.91 This has reduced the avenues available in Canada for addressing hate through the human rights system.

89 Metropolitan Action Committee on Violence Against Women and Children (METRAC), “Statement on Bill S-7” (2014), http://owjn.org/wp-content/uploads/2016/12/Statement-on-Bill-S-7-Zero-Tolerance-for-Barbaric-Cultural-Practices-Act.pdf.90 South Asian Legal Clinic of Ontario, “Perpetuating Myths, Denying Justice: ‘Zero Tolerance for Barbaric Cultural Practices Act” (2014), http://www.salc.on.ca/FINALBILLS7STATEMENT%20updated%20nov%2018.pdf.91 Michael Woods, “Hate Speech No Longer Part of Canada’s Human Rights Act” National Post, 27 June 2013, http://news.nationalpost.com/news/canada/canadian-politics/hate-speech-no-longer-part-of-canadas-human-rights-act.

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In 2014 (the most recent year for which full statistics are available), there were 611 crimes motivated by hatred against a particular racial group (primarily anti-Black racism: 238), and 429 motivated by hatred against a particular religious group (primarily Jewish: 213, and Muslim: 99). Hate crimes against Muslims have doubled between 2014 and 2016.92 However, these statistics on hate crimes in Canada are incomplete: first, because only a small proportion (approximately one-third) of hateful acts are reported; and second, because hate incidents not deemed to qualify as hate crimes are not systematically recorded and tracked.

More recently, a report on Police Reported Hate Crimes in Canada in 2015 found that police reported crimes against Muslims rose by 61% in 2015 and Muslim women were disproportionately affected. Crimes motivated by hatred of race or ethnicity increased by 5%. While there was a slight drop in hate crimes against Black populations, they remained the most common type of hate crime related to race and ethnicity93. As noted above, the report is based on police reports of hate crimes and does not adequately capture the full scope of hate crimes.

According to the 2005 report of the Hate Crimes Community Working Group, “Aboriginal and African Canadian stakeholders expressed a deep concern with the negative consequences of attracting police attention by reporting hate incidents, and feared that they themselves would be charged or mistreated for doing so. When they did report, their experiences with police services were in most cases negative, and the police services were unlikely to put the needed resources into investigating their complaints.”94 Some racialized community members have reported being discouraged by police from reporting hate incidents (by being warned about the time-consuming process for reporting an incident, for example).

Relevant Articles: 4(a), 5(b)Recommendations: We ask that the Committee recommend that Canada better protect racialized groups (Indigenous Peoples and peoples of colour) from hate incidents, including through: 1) amendments to the Criminal Code to take hate motivation into account more effectively and consistently; 2) mandated standards for identifying and recording all hate incidents and their dispensation in the justice system; and 4) consistent minimum policing standards and ongoing police training requirements for dealing with and investigating reported hate crimes.

Issue Eleven: Racial Discrimination in Policing and Criminal Justice

92 Statistics Canada, “Police-Reported Data on Hate Crime and Cybercrime, 2014,” http://www.statcan.gc.ca/daily-quotidien/160412/dq160412b-cansim-eng.htm.93 Statistics Canada, “Police reported hate crime in Canada, 2015”. June 2017. http://www.statcan.gc.ca/pub/85-002-x/2017001/article/14832-eng.htm94 Hate Crimes Community Working Group, “Addressing Hate Crime in Ontario” (2005), https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/hatecrimes/HCCWG_full.pdf.

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Policing

Indigenous communities and communities of colour have reported experiencing racial profiling and discrimination in police street checks, traffic stops, investigations, searches, DNA sampling, arrest decisions, and use of force.95

Data on traffic stops collected by the Ottawa Police Services from 2013 to 2015 found that Black drivers were stopped 2.3 times more often than expected given their representation in the driving population; young Black men were stopped 8.3 times more; Middle Eastern drivers were stopped 3.3 times more; and young Middle Eastern men were stopped 12 times more.96

In its 2016 review of Canada, the UN Working Group of Experts on People of African Descent concluded that “there is clear evidence that racial profiling is endemic in the strategies and practices used by law enforcement (in Canada). Arbitrary use of ‘carding’ or street checks disproportionately affects people of African descent.”97 A 2014 study by the Toronto Star newspaper, for example, found that Black people were 3.4 times more likely to be carded by Toronto police than expected, given their representation in the population.98

In 2017, the Government of Ontario implemented regulations to restrain police carding practices.99 However, the regulations still permit street checks to be conducted in connection with investigations100 – leaving space for the continued operation of racial profiling. Moreover, the regulations do not require destruction of the police databases of personal information already amassed through racially-discriminatory carding. This is of heightened concern given the ever expanding information-sharing agreements between Ontario municipal police and national security agencies (e.g. the Royal Canadian Mounted Police (RCMP), and the Canadian Security Intelligence Service (CSIS); see section on National Security above).101

95 Ontario Human Rights Commission, “Under Suspicion: Research and Consultation Report on Racial Profiling in Ontario” (2017), http://ohrc.on.ca/en/under-suspicion-research-and-consultation-report-racial-profiling-ontario.96 Lorne Foster, Les Jacobs, and Bobby Siu, “Race Data and Traffic Stops in Ottawa, 2013-2015: A Report on Ottawa and the Police Districts” (October 2016), online: <https://www.ottawapolice.ca/en/about-us/resources/.TSRDCP_York_Research_Report.pdf>.97 “Statement to the Media by the United Nations’ Working Group of Experts on People of African Descent, on the Conclusion of its Official Visit to Canada, 17-21 October 2016,” online: < http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20732&LangID=E>.98 Jim Rankin, Patty Winsa, Andrew Bailey, and Hidy Ng, “Carding Drops but Proportion of Blacks Stopped by Toronto Police Rises” Toronto Star (26 July 2014), online: < https://www.thestar.com/news/insight/2014/07/26/carding_drops_but_proportion_of_blacks_stopped_by_toronto_police_rises.html>.99 O Reg 58/16: Collection of Identifying Information in Certain Circumstances – Prohibition and Duties (2017).100 O Reg 58/16: Collection of Identifying Information in Certain Circumstances – Prohibition and Duties (2017), s 1(2).101 Jim Rankin and Wendy Gillis, “Ontario Police Forces Share Carding Data with Mounties, CSIS” Toronto Star (23 April 2017), online: < https://www.thestar.com/news/canada/2017/04/23/ontario-police-forces-share-carding-data-with-mounties-csis.html>.

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Indigenous People and people of colour have also reported being subjected to excessive use of police force, unnecessary strip and cavity searches, and reprisals for complaining or asserting their rights vis-à-vis the police.102 A 2006 study by criminologist Scott Wortley found that Black and Indigenous Peoples were highly overrepresented in police use of force cases. While Black people constituted 3.6% of the population of Ontario, they represented 16% of all investigations involving police use of force, 27% of investigations into police shootings, and 34.5% of all deaths caused by police shootings.103

Police profiling on the basis of race intersects with profiling on the basis of immigration status. A 2015 study documented how immigration status checks performed by Toronto police are a form of racial profiling, making undocumented residents of colour vulnerable to the prospect of indefinite immigration detention and deportation104 (see section on Immigration Detention above).

In December 2013, Justicia for Migrant Workers filed a complaint with the Ontario Independent Police Review Director (OIPRD), alleging that the Ontario Provincial Police collected DNA samples from approximately 100 male “Indo and Afro-Caribbean” migrant workers as part of a sexual assault investigation – even though the migrant workers did not match the description of the suspect, apart from their skin colour. In a disappointing decision, the OIPRD Director found that racial profiling was not a factor in the OPP’s decision to conduct the DNA sweep, although the sweep was “overly broad.”105

Racialized communities have consistently raised concerns about the inefficacy, non-transparency, and apparent partiality of police oversight bodies. Investigations by Ontario’s Special Investigations Unit (SIU), which is mandated to investigate police-civilian interactions that result in serious injury or death to a civilian, have only resulted in charges being laid against police officers in 129 out of 3,932 cases between 2002 and 2016.106 Redacted SIU reports on incidents involving civilian deaths, like that of South Sudanese refugee Andrew Loku, have only been released following intense public pressure by activist groups.107

102 Ontario Human Rights Commission, “Under Suspicion: Research and Consultation Report on Racial Profiling in Ontario” (2017), http://ohrc.on.ca/en/under-suspicion-research-and-consultation-report-racial-profiling-ontario.103 Scot Wortley and Akwasi Owusu-Bempah, “Crime and Justice: The Experiences of Black Canadians” in B Perry, ed. Diversity, Crime, and Justice in Canada (Oxford University Press, 2011).104 No One is Illegal – Toronto, “Often Asking, Always Telling: The Toronto Police Service and the Sanctuary City Policy” (2015), http://rabble.ca/sites/rabble/files/often_asking_always_telling_-_kedits_dec_1.pdf.105 Gerry McNeilly, “Casting the Net: A Review of Ontario Provincial Police Practices for DNA Canvasses” (July 2016), Office of the Independent Police Review Director, http://www.oiprd.on.ca/EN/PDFs/OIPRD_Casting_The_Net_Systemic_Review_Report.pdf.106 Michael Tulloch, “Report of the Independent Police Oversight Review” (2017), https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/police_oversight_review/.107 “Heavily-Redacted SIU Report Into Andrew Loku’s Death Released” CityNews, 29 April 2016, http://www.citynews.ca/2016/04/29/heavily-redacted-siu-report-into-andrew-lokus-death-released/.

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In his 2017 evaluation of police oversight in Ontario, Justice Michael Tulloch recommended, inter alia, that: all police oversight bodies should collect ethno-racially disaggregated data; no more than half of SIU investigators should be former police officers; anti-bias measures should be incorporated into the training for investigators; “serious injuries” should be given a standard definition; all incidents involving discharge of a firearm by a police officer at a person should be investigated; and in the interest of transparency and accountability that public reports should be provided for all SIU investigations.108

Justice Tulloch’s welcome recommendations are non-binding; so while the Ontario government has indicated that it is committed to implementing them, there is no accountability mechanism ensuring that it does. Furthermore, commentators have critiqued the Tulloch report for recommending that the names of investigated police officers should not be released unless they are charged – inhibiting the identification of ethno-racial and other biased patterns of violent behaviour by particular police officers.

Pre-Trial Detention

A 2016 report by Legal Aid Ontario on the bail system observes that Indigenous Peoples and peoples of colour “…who are subject to over-policing practices and racial profiling are more likely to find themselves in pre-trial detention…”109 than those from non-racialized backgrounds. The much earlier Commission on Systemic Racism in the Ontario Criminal Justice System, for example, found that Black adult males were three times more likely than White adult males to be denied bail for drug charges in Toronto courts.110 In 2014, Indigenous People comprised 13% of persons in remand detention, despite constituting only 2% of Ontario’s population.111

This racialization of pre-trial detention is exacerbated by the racialization of poverty and mental health issues. As the Canadian Civil Liberties Association has argued, the Canadian bail system is one that “disproportionately penalizes – and criminalizes – poverty, addiction and mental illness. Canadian bail courts regularly impose abstinence requirements on those addicted to alcohol or drugs, residency conditions on the homeless, strict check-in requirements in difficult to access locations, no-contact conditions between family members, and rigid curfews that interfere with employment and daily life.”112

108 Michael Tulloch, “Report of the Independent Police Oversight Review” (2017), https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/police_oversight_review/.109 Legal Aid Ontario, “A Legal Aid Strategy for Bail,” (2016), http://www.legalaid.on.ca/en/publications/paper-legal-aid-strategy-for-bail-2016-11.asp. 110 “Report of the Commission on Systemic Racism in the Ontario Criminal Justice System” (Toronto: Queen’s Printer for Ontario, 1995).111 Legal Aid Ontario, “A Legal Aid Strategy for Bail,” (2016), http://www.legalaid.on.ca/en/publications/paper-legal-aid-strategy-for-bail-2016-11.asp.112 Canadian Civil Liberties Association, “Set Up to Fail: Bail and the Revolving Door of Pre-Trial Detention” (July 2014), https://ccla.org/dev/v5/_doc/CCLA_set_up_to_fail.pdf.

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Pre-trial detention impairs access to counsel, and increases pressure on an accused to plead guilty or agree to onerous release conditions.113 The disadvantages are compounded for Indigenous defendants from remote communities, who are removed to provincial detention centres many kilometres away from the community supports that could help them secure pre-trial release.114

Racial disparities in the court system are reinforced by the serious under-representation of members of Indigenous and non-Indigenous racialized groups in the judiciary. A 2016 study estimated that 1% of the 2,160 judges in the Ontario provincial superior and lower courts are of Indigenous background (though they are roughly 4.3% of the Canadian population), and 3% are people of colour (though they make up around 19% of the total Canadian population); and there are no Indigenous or judges of colour in the Supreme Court of Canada and the Federal Court of Appeal.115

Corrections

The federal prison system is the only segment of Canada’s correctional system that regularly collects and publishes race-based data.116 These data reveal that Indigenous and Black people are significantly and increasingly over-represented in Canadian prisons. In January 2016, 25% of the total federally incarcerated population – and 35% of federally-sentenced women – were Indigenous, despite accounting for only around 4.3% of the total Canadian population.117 Between 2005 and 2015, the number of incarcerated Indigenous people increased by more than 50%, while the number of incarcerated Indigenous women almost doubled.118 Black people comprise 3% of the general Canadian population, but 10% of the federally incarcerated population.119 The Black prison population has grown by nearly 90% since 2003.120

Data obtained through freedom of information requests indicates similar racial disproportionality in provincial corrections systems. In Ontario, for instance, Indigenous people 113 As Justice Iacobucci noted in R. v. Hall, when an accused is denied access to bail he or she is “…rendered more likely to plead guilty, and, as a result, to waive the various safeguards against unjust conviction that the system provides”.114 Legal Aid Ontario, “A Legal Aid Strategy for Bail,” (2016), http://www.legalaid.on.ca/en/publications/paper-legal-aid-strategy-for-bail-2016-11.asp.115 Andrew Griffith, “Diversity Among Federal and Provincial Judges” Policy Options, 4 May 2016, http://policyoptions.irpp.org/2016/05/04/diversity-among-federal-provincial-judges/.116 Akwasi Owusu-Bempah and Scot Wortley, “Race, Crime, and Criminal Justice in Canada” in The Oxford Handbook of Ethnicity, Crime and Immigration (2014).117 Office of the Correctional Investigator, “Annual Report of the Office of the Correctional Investigator” (2016), <http://www.oci-bec.gc.ca/cnt/rpt/annrpt/annrpt20152016-eng.aspx>.118 Office of the Correctional Investigator, “Annual Report of the Office of the Correctional Investigator” (2016), <http://www.oci-bec.gc.ca/cnt/rpt/annrpt/annrpt20152016-eng.aspx>.119 Office of the Correctional Investigator, “A Case Study of Diversity in Corrections: The Black Inmate Experience in Federal Penitentiaries” (2014), online: <http://www.oci-bec.gc.ca/cnt/rpt/oth-aut/oth-aut20131126-eng.aspx>.120 Office of the Correctional Investigator, “Annual Report of the Office of the Correctional Investigator” (2012-2013), http://www.oci-bec.gc.ca/cnt/rpt/annrpt/annrpt20122013-eng.aspx.

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(2% of the general provincial population) constituted 11.8% of the provincially incarcerated population in 2011; and Black people (3.9% of the general provincial population) constituted 17.7% of the provincially incarcerated population.121

Black inmates are more likely than White inmates to be charged with misconduct that involves subjective judgement on the part of correctional officers (such as disrespect toward staff). 122 And Black and Indigenous inmates are disproportionately more likely to be subjected to use of force by correctional officers; in 2015-2016, Indigenous prisoners accounted for 30% of use of force incidents in federal corrections, and Black prisoners for 18% of incidents.123

Last year, the UN Working Group of Experts on People of African Descent expressed “extreme concern about the practice and excessive use of solitary confinement or ‘segregation’ in correctional facilities, the absence of appropriate monitoring, and lack of data being kept on inmates’ race, mental health status or gender.” The Working Group noted that as many as 40% of inmates in segregation at the Toronto South Detention Center were Black.124

14% of people in segregation in Ontario jails are Indigenous.125 One 23-year-old Indigenous man, Adam Capay, was held in solitary confinement for more than 1,500 days while awaiting trial.126 In 2016, 70% of people held in segregation in Ontario were in pre-trial detention (while legally presumed to be innocent).127 Racial discrimination intersects with discrimination on the basis of mental health in segregation practices: over half of the Indigenous women and men admitted to segregation in 2016 had a suicide risk alert.128

121 Akwasi Owusu-Bempah and Scot Wortley, “Race, Crime, and Criminal Justice in Canada” in The Oxford Handbook of Ethnicity, Crime and Immigration (2014).122Office of the Correctional Investigator, “A Case Study of Diversity in Corrections: The Black Inmate Experience in Federal Penitentiaries” (2014), online: <http://www.oci-bec.gc.ca/cnt/rpt/oth-aut/oth-aut20131126-eng.aspx>.123 Office of the Correctional Investigator, “Annual Report of the Office of the Correctional Investigator” (2016), <http://www.oci-bec.gc.ca/cnt/rpt/annrpt/annrpt20152016-eng.aspx>.124 “Statement to the Media by the United Nations’ Working Group of Experts on People of African Descent, on the Conclusion of its Official Visit to Canada, 17-21 October 2016” 21 October 2016, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20732&LangID=E.125 Independent Review of Ontario Corrections, “Segregation in Ontario” (March 2017), https://www.mcscs.jus.gov.on.ca/sites/default/files/content/mcscs/docs/IROC%20Segregation%20Report%20ENGLISH%20FINAL_0.pdf.126 Independent Review of Ontario Corrections, “Segregation in Ontario” (March 2017), https://www.mcscs.jus.gov.on.ca/sites/default/files/content/mcscs/docs/IROC%20Segregation%20Report%20ENGLISH%20FINAL_0.pdf.127 Independent Review of Ontario Corrections, “Segregation in Ontario” (March 2017), https://www.mcscs.jus.gov.on.ca/sites/default/files/content/mcscs/docs/IROC%20Segregation%20Report%20ENGLISH%20FINAL_0.pdf.128 Independent Review of Ontario Corrections, “Segregation in Ontario” (March 2017), https://www.mcscs.jus.gov.on.ca/sites/default/files/content/mcscs/docs/IROC%20Segregation%20Report%20ENGLISH%20FINAL_0.pdf.

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Howard Sapers, the Independent Advisor on Corrections in Ontario, has made several recommendations for revisions to solitary confinement practices, including: imposition of a 15-day time limit for continuous segregation; standardization of collection of race-based data for segregated inmates; and consideration of life history analysis for all segregated Indigenous inmates at their five-day review.129

Relevant Articles: 5(a), 5(b), 5(d)(i)

Recommendations: We ask that the Committee recommend that: 1) Ontario abolish all arbitrary street checks, require the issuing of receipts – that allow for ethno-racial and other relevant self-identification – for all police contact and engagement with members of civil society, and purge historical databases of information collected through carding; 2) Ontario implement the Tulloch recommendations to strengthen police oversight, while addressing the limitations of the Tulloch recommendations; 3) Ontario ban immigration status checks by police; 4) national data be collected on ethno-racial discrimination in the criminal justice system, from bail hearings to sentencing to custody ratings; 5) greater financial and legal support be provided for bail; 5) strengthened procedures be implemented for dealing with public complaints about police, especially those involving allegations of discrimination; 6) federal and provincial inmates be given access to a more robust complaints mechanism for in-corrections abuses, including access to courts and protection from reprisals; and 7) federal and provincial governments adhere to international law limitations on the use of solitary confinement, and implement all of the Sapers recommendations with respect to solitary confinement.

ONTARIO

Issue Twelve: Racial Discrimination in Child Welfare

Indigenous, Black, and other racialized children are heavily over-represented in the child welfare system, compared to their census populations. According to the Children’s Aid Society of Toronto, for example, Black Canadians constitute 8.5% of the population of Toronto, but 40% of the children in care.130 And Indigenous children represent 3.4% of the total number of children in Ontario, but 25.5% of children in foster care.131 In its 2012 concluding observations on Canada, the United Nations Committee on the Rights of the Child (UNCRC) noted the over-representation of Indigenous and Black children and youth in Canada’s child welfare system, and recommended that Canada “take urgent measures” to address the disparity.132

129 Independent Review of Ontario Corrections, “Segregation in Ontario” (March 2017), https://www.mcscs.jus.gov.on.ca/sites/default/files/content/mcscs/docs/IROC%20Segregation%20Report%20ENGLISH%20FINAL_0.pdf.130 “One Vision One Voice: Changing the Ontario Child Welfare System to Better Serve African Canadians, Part 1” (2016), http://www.oacas.org/wp-content/uploads/2016/09/One-Vision-One-Voice-Part-1_digital_english.pdf.131 Annie Turner, “Living Arrangements of Aboriginal Children Aged 14 and Under” (2016) Insights on Canadian Society, http://www.statcan.gc.ca/pub/75-006-x/2016001/article/14547-eng.htm.132 Committee on the Rights of the Child, “Concluding Observations on the Combined Third and Fourth Periodic Report of Canada, Adopted by the Committee at its Sixty-First Session” CCR/C/CAN/CO/3-4

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Long-term placement in foster care is correlated with lower education achievement, future homelessness, and involvement with the criminal justice, welfare, and mental health systems.133

Racial biases and stereotypes may inform referrals to child welfare agencies by professionals like teachers and medical doctors, as well as decision-making practices by child welfare workers. For example, Black families have reported being referred to child welfare because their children eat non-Western food.134

Tools and standards used to assess risk to children perpetuate systemic racism by treating poverty as a sign of neglect – disproportionately affecting racialized families, who are more likely to experience poverty, and lack access to housing and social services.135 Funding formulas incentivise apprehension, rather than provision of in-home services.136 The UNCRC has expressed its concern about the frequent removal of children in Canada from their families as a “first resort” in cases of neglect, financial hardship, or disability.137

Police are often called to accompany child welfare workers on visits to Black homes – reinforcing stigmatizing stereotypes about Black aggressiveness and criminality, and increasing the chances of parents being arrested for abuse or resisting apprehension.138

Racialized children are vulnerable to racialized forms of abuse and culturally inappropriate treatment in foster homes. For example, the 2016 One Vision, One Voice report, which

(2012), http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqhKb7yhsh8%2fU426pHwccUxzN5kmnhLtdnrWm1hJzGwfirOtSF7im%2btj4%2bJ5n5CPlpIDWXA35DpHXskxTdDvCoa0RW9yOJTACORyOJ17Auf%2bpplgz6CB. 133 “One Vision One Voice: Changing the Ontario Child Welfare System to Better Serve African Canadians, Part 1” (2016), http://www.oacas.org/wp-content/uploads/2016/09/One-Vision-One-Voice-Part-1_digital_english.pdf.134 Ontario Human Rights Commission, “Under Suspicion: Research and Consultation Report on Racial Profiling in Ontario” (2017), http://ohrc.on.ca/en/under-suspicion-research-and-consultation-report-racial-profiling-ontario.135 Assembly of First Nations, “Kiskisik Awasisak: Remember the Children – Understanding the Overrepresentation of First Nations Children in the Child Welfare System” (2011); Michael Potvin, Tara Black and Barbara Fallon, “The Intersection of Child Welfare Investigations and Public Housing in Ontario” (2016), Canadian Child Welfare Research Portal Information Sheet #177E, online: <http://cwrp.ca/sites/default/files/publications/en/177e_0.pdf>.136 Commission to Promote Sustainable Child Welfare, A New Approach to Funding Child Welfare in Ontario (2011).137 Committee on the Rights of the Child, “Concluding Observations on the Combined Third and Fourth Periodic Report of Canada, Adopted by the Committee at its Sixty-First Session” CCR/C/CAN/CO/3-4 (2012), http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqhKb7yhsh8%2fU426pHwccUxzN5kmnhLtdnrWm1hJzGwfirOtSF7im%2btj4%2bJ5n5CPlpIDWXA35DpHXskxTdDvCoa0RW9yOJTACORyOJ17Auf%2bpplgz6CB.138 Ontario Human Rights Commission, “Under Suspicion: Research and Consultation Report on Racial Profiling in Ontario” (2017), http://ohrc.on.ca/en/under-suspicion-research-and-consultation-report-racial-profiling-ontario.

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documents the systemic anti-Black racism of child welfare services in Ontario, notes that White foster parents frequently shave off the hair of Black girls placed in their care, causing psychological harm.139 A witness at the Truth and Reconciliation Commission hearings spoke of how her foster parents were “adamant about Aboriginal culture being less than human, living as dirty bush people, eating rats.”140

Indigenous children are disproportionately more likely to die in foster care.141

Relevant Articles: 5(b), 5(d), 5(e)(iv), 5(e)(v), 5(e)(vi)

Recommendations: We ask that the Committee recommend that: 1) all provincial governments systematically collect ethno-racially disaggregated data regarding child welfare apprehensions (including with respect to reasons for removal and involvement of police) and placements; 2) Ontario implement the One Vision, One Voice plan for addressing systemic anti-Black racism in child welfare; 3) mandatory inquests be held for all child deaths in the child welfare system.

Issue Thirteen: Racial Discrimination in Education

In 2009, the Ontario government introduced the Equity and Inclusive Education Strategy, to address discrimination and systemic barriers to student achievement. While the Strategy required school boards to develop equity and inclusive education policies, it did not mandate that school boards adopt an anti-racism approach, it did not require them to collect ethno-racially and other disaggregated data, or implement employment equity programs to ensure that the teaching workforce reflects the racial diversity of the student population.142

The Toronto District School Board is currently the only school board in Ontario that systematically collects and analyzes ethno-racially and other disaggregated student data.

While the government’s report to the Committee outlines a series of measures adopted to address racial discrimination in school curricula, curricula continue to be “White-centric”, marginalizing the histories and contributions of Indigenous groups and communities of colour.

139 Kike Ojo, One Vision One Voice: Changing the Ontario Child Welfare System to Better Serve African Canadians, Part 1, (2016) online: <http://www.oacas.org/wp-content/uploads/2016/09/One-Vision-One-Voice-Part-1_digital_english.pdf>. 140 Truth and Reconciliation Commission of Canada, “Honouring the Truth, Reconciling for the Future” (2015), online: <http://www.trc.ca/websites/trcinstitution/index.php?p=890>.141 Truth and Reconciliation Commission of Canada, “Honouring the Truth, Reconciling for the Future” (2015), online: <http://www.trc.ca/websites/trcinstitution/index.php?p=890>; Jody Porter, “Ontario First Nations Call for Mandatory Inquests When Children Die in Child Welfare System,” CBC News 4 May 2017, online: < http://www.cbc.ca/news/canada/thunder-bay/deaths-in-care-1.4097851>.142 Carl James, “Towards Race Equity in Education: The Schooling of Black Students in the Greater Toronto Area” (April 2017), http://edu.yorku.ca/files/2017/04/Towards-Race-Equity-in-Education-April-2017.pdf.

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Data from the TDSB demonstrates that Black and Indigenous students are more likely to be streamed into non-academic programs than White or some of the other racialized students: in 2015, 53% of Black students and 48% of Indigenous students, compared to 81% of White students, were enrolled in Academic programs of study; while 39% of Black students and 41% of Indigenous students, compared to 16% of White students, were in Applied programs.143 Black immigrant students are often put in English as a Second Language classes because of their accents, or placed in grades below their level without being tested.144

While Ontario has repealed the 2000 Safe Schools Act, following complaints by the OHRC that its’ zero tolerance policy was being discriminatorily applied against racialized students and students with disabilities, the disproportionate disciplining and policing of racialized students persists. In April 2017, the Toronto District School Board (TDSB) released a report showing that Black, Indigenous, and Middle Eastern students are disproportionately expelled from schools: almost half of all students expelled over the last five years were Black, even though Black students comprise only 12% of the TDSB’s population; Indigenous students (0.3% of the TDSB population) represented 1% of all expulsions; and Middle Eastern students (4% of the TDSB population) represented 8% of all expulsions.145

Police presence is increased in schools deemed “vulnerable” – predominantly schools with relatively larger Black student populations.146 The introduction of counter-radicalization programs in Toronto, which involve the training of teachers to recognize signs of radicalization in students, will likely intensify the racial profiling and surveillance of Muslim students.147

The results of racial discrimination in the education system are manifest in poorer outcomes for Black, Indigenous and other ethno-racially specific students. TDSB data from 2015

143 Carl James, “Towards Race Equity in Education: The Schooling of Black Students in the Greater Toronto Area” (April 2017), http://edu.yorku.ca/files/2017/04/Towards-Race-Equity-in-Education-April-2017.pdf; Research & Information Services, Toronto District School Board, “Toronto District School Board’s Student Group Overviews: Aboriginal Heritage, Afghan, Portuguese-Speaking, Somali-Speaking, and Spanish-Speaking Students” (August 2015), http://www.tdsb.on.ca/Portals/research/docs/reports/TDSB%20StudentGroupOverviews.pdf.144 Ontario Human Rights Commission, “Under Suspicion: Research and Consultation Report on Racial Profiling in Ontario” (2017), http://ohrc.on.ca/en/under-suspicion-research-and-consultation-report-racial-profiling-ontario.145 Research & Information Services, Toronto District School Board, “Expulsion Decision-Making Process and Expelled Students’ Transition Experience in the Toronto District School Boards’ Caring and Safe School Programs and their Graduation Outcomes” (April 2017), http://www.tdsb.on.ca/Portals/research/docs/reports/Student%20Expulsion%20Rpt%2030Mar17.pdf; Carl James, “Towards Race Equity in Education: The Schooling of Black Students in the Greater Toronto Area” (April 2017), http://edu.yorku.ca/files/2017/04/Towards-Race-Equity-in-Education-April-2017.pdf. 146 Ontario Human Rights Commission, “Under Suspicion: Research and Consultation Report on Racial Profiling in Ontario” (2017), http://ohrc.on.ca/en/under-suspicion-research-and-consultation-report-racial-profiling-ontario.147 Shanifa Nasser, “Toronto Lifts Curtain on Extremism Prevention Plan Quietly Operating for More than 2 Years,” CBC, 26 November 2016, http://www.cbc.ca/news/canada/toronto/toronto-police-deradicalization-program-1.3867442.

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show a 69% high school graduation rate for Black students and 50% for Indigenous students, versus 84% for White students. 25% of Black students and 26% of Indigenous students – versus 47% of White students – applied to and were accepted by an Ontario university.148

Relevant Articles: 5(b), 5(e)(v), 7

Recommendations: We ask that the Committee recommend that: 1) the Ontario Ministry of Education apply a consistent and comprehensive anti-colonial and anti-racism lens to curriculum development; 2) all Ontario school boards be mandated to collect and publish ethno-racially disaggregated data on school suspensions, expulsions, programs of study, and learning outcomes, and be made accountable for eliminating racial disparities; and 3) Ontario end the regular presence of police or policing in schools.

Issue Fourteen: Racial Discrimination in Health Care

Studies suggest that a number of factors negatively affect the health of Indigenous People and people of colour in Canada, including: the psychological stress of living in a racist environment; unequal economic opportunities; poor housing; lack of food security; inequitable access to education and other social resources; disproportionate exposure to environmental toxins; employment in dangerous and precarious work; mistrust of the health-care system; and under-utilization of screening programs.149

However, ethno-racially disaggregated health data are not presently collected and analyzed across Ontario, making racial disparities in health and well-being very difficult to identify and ameliorate. Furthermore, Ontario’s Anti-Racism Act, 2017, which enables the collection of ethno-racially disaggregated data among public sector organizations in Ontario, problematically yet explicitly exempts the health sector from its priority data collection provisions.150

In Ontario, Quebec, and British Columbia, a three-month waiting period for provincial health plans bars new immigrants, the vast majority of whom are racialized, from accessing healthcare, even if they have already acquired permanent resident status.151

148 Carl James, “Towards Race Equity in Education: The Schooling of Black Students in the Greater Toronto Area” (April 2017), http://edu.yorku.ca/files/2017/04/Towards-Race-Equity-in-Education-April-2017.pdf; Research & Information Services, Toronto District School Board, “Toronto District School Board’s Student Group Overviews: Aboriginal Heritage, Afghan, Portuguese-Speaking, Somali-Speaking, and Spanish-Speaking Students” (August 2015), http://www.tdsb.on.ca/Portals/research/docs/reports/TDSB%20StudentGroupOverviews.pdf.149 Sheryl Nestel, “Colour Coded Health Care: The Impact of Race and Racism on Canadians’ Health” (2012) Wellesley Institute, <http://www.wellesleyinstitute.com/wp-content/uploads/2012/02/Colour-Coded-Health-Care-Sheryl-Nestel.pdf>.150 Anti-Racism Act, 2017, S.O. 2017 C.15 at s. 6(7).151 Edward A Koning and Keith G Banting, “Inequality Below the Surface: Reviewing Immigrants’ Access to and Utilization of Five Canadian Welfare Programs” (2013) 39:4 Canadian Public Policy 234.

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Indigenous peoples experience the worst health outcomes of any population group in Canada. Indigenous women experience higher rates of hypertension, heart disease, diabetes, cervical and gallbladder cancer, HIV/AIDS, substance abuse, mental illness, and suicide.152 A 2014 study found that Indigenous women may be deterred from seeking health care for themselves, because they fear apprehension of their children by child welfare services.153

Federal-provincial jurisdictional disputes deprive Indigenous children of funding for health services. While Jordan’s Principle is meant to ensure that the government of first contact pays for the service without delay, the Principle has been restrictively applied by governments in practice, excluding many Indigenous children with health needs from its ambit (see section on Canada’s failing Treaty-Based Nation-to-Nation Relationship with Indigenous Peoples above).

Indigenous People and people of colour report being subjected to rude, disrespectful, harsh, or dismissive treatment by health care staff, due to racially discriminatory stereotypes. According to the OHRC’s 2017 report, Under Suspicion, health workers often do not treat Indigenous Peoples’ symptoms seriously because of assumptions that they are drunk or high.154 Similarly, Black patients’ symptoms of sickle cell anemia are frequently dismissed as pain related to drug habits.

As stated in the Comments of the Wellesley Institute to this Committee, the discrimination that racialized persons experience has adverse health consequences. Immigrants and communities of colour, particularly women, are more likely to work as manual labourers and are more likely to report their working conditions as having a negative impact on their mental, physical or emotional health.155

Recommendations: We ask that the Committee recommend that: 1) Ontario’s Anti-Racism Directorate collect and analyze ethno-racially disaggregated data on health outcomes and experiences across the health care system; 2) provincial governments remove waiting periods for health coverage to enable all Ontarians equitable access to health care; and 3) Canada fully and expansively implement Jordan’s Principle.

Issue Fifteen: WCAR and Canada’s Action Plan Against Racism152 Billie Allan and Janet Smylie, “First Peoples, Second Class Treatment: The Role of Racism in the Health and Well-Being of Indigenous Peoples in Canada” (2015) Wellesley Institute, <http://ywcacanada.ca/data/research_docs/00000325.pdf>.153 Jacqueline Denison, Colleen Varcoe, and Annette J Browne, “Aboriginal Women’s Experiences of Accessing Health Care When State Apprehension of Children is Being Threatened” (2014) 70:5 Journal of Advanced Nursing 1105.154 Ontario Human Rights Commission, “Under Suspicion: Research and Consultation Report on Racial Profiling in Ontario” (2017), http://ohrc.on.ca/en/under-suspicion-research-and-consultation-report-racial-profiling-ontario.155 Wellesley Institute, “Comments on Racism, Health and Access to Health Services, Convention on the Elimination of All Forms of Racial Discrimination: Canada’s 21st – 23rd Periodic Reports”, June 6, 2017

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In light of the persistent and systemic nature of racism in Canada, we need all orders of Government in Canada to commit to combat racism in all its form. The Federal Government must take the leadership role by working on and delivering on its WCAR Program of Action related commitments - including a restored, enhanced and more robust Canada Action Plan Against Racism (CAPAR). Toward this end the Government must meaningfully engage with civil society, and in particular actively consult with Indigenous Peoples, peoples of colour and non-governmental organizations working to advance racial justice and racial equality in Canada in its development of a renewed CAPAR.

Recommendations: We ask that the Committee recommend that the Federal Government renew its commitments under the WCAR Program of Action and to work with civil society to create an enhanced and more robust Canada Action Plan Against Racism (CAPAR).

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