An Outline of Canadian Human Rights Concerns Arising from the COVID-19 Pandemic (with Links to Relevant Resources)

In these unprecedented times, it is more important than ever to ensure that human rights are respected. While many governments have distributed aid to their populations, steps must be taken to ensure that this aid does not come at the cost of civil or privacy rights and is equitably distributed. Moreover, as extreme as the impact of this pandemic is on all of us, it is especially difficult on the most vulnerable populations. While the situation can seem overwhelming, the urgency of the government’s response must not come at the cost of accountability. Canadian governments at all levels must respect, protect, and fulfill their human rights obligations.

Canadian Lawyers for International Human Rights (CLAIHR) has been tracking the human rights concerns associated with COVID-19 in Canada, acknowledging that this is a continually evolving situation. Below, we provide a very high level outline of these issues, some work being done to address them, and a list of resources where you can learn more. While they are discussed as distinct topics it is important to recognize that these issues often have compounding effects on individuals. There are a number of organizations doing excellent work in these areas and we urge you to get in touch with them. Over the next few months, CLAIHR will also be working with some of these organizations to advocate on these issues and may host educational webinars for those looking to learn more.

  1. Refugee Rights
  2. Protecting the Homeless
  3. Making Drug Use Safer
  4. Supporting Survivors of Domestic Violence
  5. Protecting Prison Populations
  6. Indigenous Rights
  7. Protecting Essential Workers
  8. Civil and Privacy Rights
  9. Holding Corporations Accountable
  10. Addressing Ableism
  11. Improved Care for Older People
  12. Other Organizations Working on the COVID-19 Response in Canada

1. Refugee Rights

Issues:

Effective March 21, 2020, asylum-seekers crossing the Canadian land border, whether at an official post or irregularly, will temporarily be sent back to the United States. The United States has made clear that it will then return these individuals to their countries of origin, subject to very limited exceptions. This measure, which is intended to remain in place throughout the time of the pandemic, violates non-refoulement, the core principle of the 1951 Refugee Convention. Sending people back to violence also constitutes a human rights violation and seems logistically impossible under current circumstances.

An additional concern pertains to those refugee claimants who remain in custody. The Canadian government has made no move to release them despite the risks associated with keeping people in close quarters at this time.

Ongoing Work and Further Calls to Action:

Initially, the federal government announced a plan to temporarily house asylum-seekers for 14 days of mandatory isolation at the federal government’s expense. This approach would have respected refugee rights, while ensuring protection from the virus, however, it has not been executed as planned. We urge the government to return to this initial plan.

With respect to refugee claimants currently in detention, they should immediately be released (please see Protecting Prison Populations, below, for more details on this solution).

Learn More/Resources:


2. Protecting the Homeless

Issues:

People experiencing homelessness do not have housing in which they can socially isolate during the pandemic. Furthermore, they often have compromised health, making them more at risk from COVID-19. Temporary housing facilities, such as shelters and drop-in centres, are overstretched and overcrowded. They cannot house all of those experiencing homelessness and their structures pose increased risk of disease outbreaks.

Further, job insecurity and financial difficulty are making it challenging for many to pay rent. While Canada’s COVID-19 economic response plan provides some support, it is up to the provinces to ensure that those who cannot pay their rent do not face homelessness.

Ongoing Work and Further Calls to Action:

We applaud governments across Canada on emergency measures such as additional shelters and opening up hotels, however, the most sustainable solution is to offer permanent housing to people experiencing homelessness.  In the meantime, the UN Special Rapporteur on the Right to Housing has developed a National Protocol that may assist governments in working with residents of homeless encampments in a way that acknowledges them as rights holders. Additionally, several organizations have filed a legal action against the City of Toronto claiming that the City’s failure to adopt appropriate distancing and sanitation standards in shelters amounts to rights violations under the Charter and Ontario’s Human Rights Code.  

In the rental sphere, all provinces have identified the public health risks associated with housing insecurity and are temporarily suspending evictions to some degree. Some jurisdictions are prohibiting rent increases and providing temporary rental supplement programs, but more must be done to ensure that these temporary measures become long-term, sustainable solutions aimed at addressing housing affordability crises throughout the country.

Learn More/ Resources:


3. Making Drug Use Safer

Issues:

COVID-19 has exacerbated Canada’s opioid crisis. Travel restrictions across the US-Canada border have reduced supply, with two potential consequences: increased toxicity of drugs and more individuals suffering through withdrawal. Such individuals are less likely to seek proper care for their symptoms due to fear and self-isolation orders.

Anti-pandemic measures also increase the risk of people dying from overdose. More people are using drugs alone and fewer are accessing safe injection sites due to reduced hours and measures, including increased use of distancing and personal protective equipment (PPE), that may make people who use drugs feel further stigmatized. Overdose death prevention prescriptions, such as naloxone kits, are not intended to be self-administered.

Ongoing Work and Further Calls to Action:

Health Canada has temporarily broadened exemptions under the Controlled Drugs and Substances Act (CDSA) to allow for easier distribution of prescription opioids. So far, only British Columbia, which faces some of the highest rates of opioid addiction and death, has implemented these changes through clinical guidance aimed at expanding safe supply. In addition to instructing medical professionals, the province is encouraging people to continue to practice safer drug use by buddying up while maintaining two-metres of separation and carrying a naloxone kit.

Providing people who use drugs access to safe and reliable treatment is necessary to prevent harm. Health Canada’s new exemptions to the CDSA are set to expire September 30, but should be permanently adopted. Provinces must continue to work with advocacy groups to expand safe supply programs, which reduce drug use stigmatization, the risk of overdose from tainted drugs, and instances of unsupervised withdrawal.

Learn More/ Resources:


4. Supporting Survivors of Domestic Violence

Issues:

Incidents of domestic violence have increased as more people are forced to stay home under emergency social isolation orders. This increased prevalence of violence is made more challenging by a reduced ability to access support services. Many resources for escaping domestic violence, including libraries, community centres, and shelters, are closed or are operating at reduced capacity. Many survivors of domestic abuse, predominantly women, access social services after receiving medical attention. This option has also been restricted as many, fearing risk of infection from the virus, are avoiding hospitals. In addition, increased financial instability during this pandemic has made it more likely that those experiencing domestic abuse will remain with abusive partners and reduced family court services limit access to much needed custody and restraining orders. Taken together, these gaps in support allow abusers to continue to isolate and control their partners and/or children without recourse. 

Ongoing Work and Further Calls to Action:

The federal government has pledged $40-million to support survivors of domestic violence. The money will be allocated to women’s shelters, sexual assault centres, and emergency Indigenous women and children’s shelters. While these funds are a good start, it is unclear how they will be distributed and when they will reach frontline organizations, which are doing incredible work during this crisis. We expect and encourage the government to release detailed plans for this money. Most importantly, this financial support for shelters and sexual assault centres should be maintained or enhanced with the gradual reopening of our society.

Learn More/ Resources:


5. Protecting Prison Populations

Issues:

Social distancing is not possible in prisons. As of April 30, 118 or 40% of inmates at the Mission Institution in British Columbia have tested positive for coronavirus and one has died. In Quebec, 159 federal inmates have tested positive across three prisons. The Grand Valley Institution for Women in Ontario has seen eight inmates diagnosed. The infection is not limited to prisoners, the Union of Canadian Correctional Officers has indicated that about 80 of its members have tested positive for the virus.

Measures implemented to curb the spread of the virus have resulted in human rights violations. Hundreds of inmates across the country have been placed in medical isolation, which only permits 20 minutes of activity outside their cell per day. Communal spaces such as gyms and libraries have been shut down, programs postponed, and communal meals cancelled. Daily access to fresh-air exercise has been significantly reduced and, in some prisons, entirely suspended. Increased tensions have resulted in inmate protests, peaceful and violent, as well as guard retaliation.

Ongoing Work and Further Calls to Action:

The government should immediately release as many inmates as possible pursuant to a selection process governed by transparent criteria. On March 18, Canada’s Public Safety Minister recommended early release of select low-risk offenders in response to growing concerns regarding inmate health and safety. Despite this and many other calls for action, only one man has been released from federal prison for reason of medical vulnerability.

While releasing prisoners is controversial, approximately 38 countries claim to have temporarily released and, in some instances, pardoned prisoners. Canada can look to these other countries for examples as to how these releases can safely be done, taking into account any underlying human rights considerations. The government must implement a plan to ensure inmates that are non-violent, medically vulnerable, or near the end of their sentence are not required to remain in unsafe conditions. Prisoners that are released must be able to access income assistance and other supports, while inmates that are required to remain in prison must be provided full access to health care, harm reduction supplies, and hygiene necessities. Testing should become mandatory for all prisoners and correctional officers.

While we wait for the government to step up, some human rights organizations have taken action. On May 12, Sean Johnston, a man serving a life sentence for murder, together with advocacy groups including the Canadian Civil Liberties Association, filed an application against Canada’s Attorney General. They argue that Correctional Service Canada has violated prisoners’ Charter rights by continuing to confine medically-vulnerable prisoners and failing to provide adequate social distancing through prison population reduction.

Learn More/ Resources:


6. Indigenous Rights

Issues:

As part of the legacy of colonialism, indigenous people experience disproportionately high rates of homelessness, drug addiction, incarceration, and gender-based violence, which have all been discussed above. Rural Indigenous communities often also experience severe overcrowding and may not have access to potable water, let alone adequate health care. These long-standing issues have resulted in higher rates of chronic illness within Indigenous populations, which are likely to be exacerbated by the virus.

Indigenous communities are also being placed at risk of the virus through industrial ventures. TransCanada is continuing construction of the Coastal GasLink and KeystoneXL pipelines and construction workers are further exposing these vulnerable communities to COVID-19. In addition, many of the construction projects taking place on or near First Nations’ lands are proceeding without these communities’ consent. In light of the coronavirus, protests and other forms of opposition to these projects have had to stop, but the projects themselves are continuing.

Ongoing Work and Further Calls to Action:

On March 26, the federal government pledged $305 million to Indigenous communities in response to a national emergency declaration by the Assembly of First Nations. Indigenous Services Canada (ISC) is providing information about the virus and support services in some Indigenous languages. However, ISC must also work with Indigenous communities to ensure health and safety recommendations are appropriately tailored to account for specific instances of non-potable water advisories, overcrowding, and inadequate medical services. The funds provided by the federal government, while insufficient, can also assist with addressing these concerns.

Over 300 organizations and individuals are calling for the government to ensure that Indigenous knowledge-keepers are active participants in the government’s response by making sure they have an official advisory role to special committees, emergency task forces, crisis response working groups, and other bodies established by governments to coordinate their response to the COVID19 pandemic. These groups are also calling for immediately establishing independent human rights oversight committees that include First Nations, Métis, and Inuit representatives from both rural and remote Indigenous communities and urban centres.

The federal and provincial governments should develop a coordinated process for halting construction projects in and around First Nations’ communities that do not directly contribute to their well-being and that have no or only limited support from the community.  This approach is endorsed by the Union of BC Indian Chiefs and would be in keeping with Article 26.2 of the UN Declaration On The Rights Of Indigenous People, supported by Canada since 2016, which states: “Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of tra­ditional ownership or other traditional occu­pation or use, as well as those which they have otherwise acquired.”

Learn More/ Resources:


7. Protecting Essential Workers

Issues:

Essential workers include first responders, health care workers, critical infrastructure workers (e.g. hydro workers, transportation workers), and workers who are essential for the supply of critical goods, such as food and medicines. These workers are on the frontlines, risking exposure to COVID-19 and yet many of them often endure challenging working conditions, low wages, and minimal access to benefits including sick leave. Furthermore, many of these jobs are contractually established, precarious in nature, and lacking enshrined benefits or other protections. During the pandemic, essential workers may also be experiencing increased stress due to new work environments that require them to incorporate frequently changing distancing and sanitation measures into their daily work in order to avoid the very real risk of infection.  Throughout April, employees at companies such as Amazon, Whole Foods, Instacart, Walmart, FedEx, Target, and Shipt have been joining together to demand protective equipment, hazard pay, and paid sick leave. However, these protests cause little disruption and these companies continue to report record sales.

In many cases, essential workers are also temporary foreign workers (TFWs) who are especially vulnerable because their ability to remain in the country is directly linked to their employer. Housing, often provided by the employer, is typically shared among many workers, which makes self-isolating difficult. Additionally, TFWs may also have difficulty accessing public health care.

Ongoing Work and Further Calls to Action:

While employers have begun meeting basic demands, the response time in many cases has simply been too slow to protect all essential workers. A potentially positive result is increased interest in labour organizing and public support for workers’ rights. Companies that have received negative press regarding the treatment of their workforce may face challenges when recruiting new employees in the post-pandemic economic recovery period. 

Relieving pandemic-related anxiety is understandably challenging. Employers are encouraged to share informational resources with their employees in addition to providing them with physical PPE. Where possible, they should also provide mental health support, which is critical to ensure that workers are able to process feelings of isolation and the increased stress and anxiety that come with being on the front lines of a pandemic.

TFWs have received some additional protections. Many provincial health authorities have temporarily waived their mandatory wait-periods and CERB is available to TFWs who are unable to work because of the virus. However, these measures do not address the systemic insecurity experienced by TFWs. Immigration reform is required to allow these workers, who play a significant role in maintaining Canada’s food supply, access to permanent resident status.

Learn More/ Resources:


8. Civil and Privacy Rights

Issues:

Governments across Canada have authorized bylaw officers and police to ticket and charge people accused of breaking emergency orders during the COVID-19 pandemic. This emphasis on enforcement of social distancing has the potential for abuse. Social distancing regulations may provide a pretext to target and discriminate against otherwise law-abiding citizens in constitutionally prohibited ways.

Current available data suggests that more than 4,500 people have been ticketed or charged for COVID-19 related infractions across Canada, amounting to $5.8 million in fines. The majority of these enforcement actions have occurred in Quebec (3000+), followed by Ontario (900+), Nova Scotia (500+), and Alberta (40+). The other provinces have seen less than 15 incidents of enforcement. Social distancing measures must be measured and proportionate and should not unnecessarily intrude on civil liberties or privacy rights.

Ongoing Work and Further Calls to Action:

Canada should move from enforcement of emergency orders to education so that Canadians more willingly comply. Where enforcement measures are necessary, they should be transparent and monitored for abuse of power. Data collection must be kept to a minimum and be in furtherance of a clear objective. Access to this data must be restricted and clear remedies must be available for individuals whose privacy is breached through inappropriate data disclosure.  

The Canadian Civil Liberties Association is currently collecting information from individuals who have been stopped, charged, or fined under emergency orders or laws in order to assess enforcement strategies and discover who is most impacted. This research will assist CCLA’s advocacy work aimed at creating systemic change and law reform.

Learn More/ Resources:


9. Holding Corporations Accountable

Issues:

The federal government has set aside large sums of taxpayer money to bailout corporations during the pandemic. Under the Canada Emergency Wage Subsidy (CEWS) program, Canadian employers may be eligible for a subsidy of 75% of employee wages between March 15 and June 6, 2020 (to a maximum of $847/week/employee). CEWS is intended to encourage employers to rehire workers who have been laid off due to COVID-19, prevent further job loss, and better position employers to resume normal business operations following the crisis. There are concerns that companies will use the provided funds to enrich their executives and/or shareholders at the expense of worker protections. There is also much debate about whether corporations that avoid taxes through offshore tax havens should be permitted to access CEWS or other public fund solutions they have not meaningfully paid into.

There are also reports that the federal government intends to provide a $15-billion bailout package for the oil and gas industry. Alberta’s United Conservative Party and the Business Council of Alberta are requesting this money be used to buy shares in distressed oil and gas companies, as was done for the auto industry in response to the 2008-09 financial crisis. They are also advocating for reduced income taxes and property taxes within the sector, a freeze on the carbon tax rate, and access to interest-free bank loans. This approach would rescue a sector that causes environmental harm.

Ongoing Work and Further Calls to Action:

Currently, the federal government is trying to keep as many Canadians employed as possible by making CEWS easy for businesses to access. Any exclusions are, therefore, likely to be applied retroactively by CRA audit, although the possible criteria for denial are still unknown. The federal government should deny funding to multinational corporations that abuse tax havens and use shell companies to hide their real or beneficial owners. Public funding should be contingent on multinational corporations disclosing their finances and halting stock buybacks, executive bonuses, golden parachutes, and dividend payouts for one year. Canada’s approach is still uncertain, but the government may take cues from the US, Denmark, Poland, and France, which have all taken steps to bar companies avoiding taxes from receiving public funds.

The federal government’s oil industry bailout is ill-advised. Non-renewable energy extraction contributes significantly to the global climate crisis, which puts human rights at risk. Further, international price wars and growing demand for climate-friendly energy sources call into question the sustainability of Canada’s oil sector. The federal government should instead pursue public ownership of Canada’s renewable energy sector and mitigate climate change by transitioning to green energy sources, while providing income security for workers through retraining and improved social services.

Learn More/ Resources:


10. Addressing Ableism

Issues:

Many people receiving provincial disability pensions or income assistance cannot qualify for CERB, which provides individuals who are out of work due to COVID-19 $2000/month. In contrast, these other assistance programs provide single persons with disabilities around $1,000 a month and those supporting a family around $2,000. Individuals accessing these services will become ineligible if they exceed monthly or annual earning thresholds. The disparity between programs sends a clear message that persons with disabilities or who are otherwise unable to work are less valued.

Public health authorities have also not taken into consideration the needs of persons with disabilities, many of whom have underlying medical conditions that put them at risk of the virus. For example, provinces have banned all non-essential visitors at hospitals and long-term care facilities, but have not provided clear direction on who qualifies as an essential visitor. Many people with disabilities rely on family, friends, and support staff to communicate on their behalf. However, few provinces have considered this need and those that do typically use ambiguous language that frontline workers must interpret. Patients that cannot properly convey their needs through their normal supports are more likely to receive inadequate treatment, which can, and has, resulted in fatalities.

Ongoing Work and Further Calls to Action:

Some provinces are providing limited, additional monthly funds to persons accessing disability and income assistance. However, even with this supplement, people accessing these programs are still living significantly below the poverty line. Long-term funding and structural changes need to be put in place to ensure people living with disabilities, or who otherwise cannot work, are able to access the services they need.

Provincial governments have done little to address the concern about essential visitors, instead relying on hospitals to make these determinations. People with disabilities, their families, and support workers continue to push for clear direction from provincial leaders so that vulnerable people can be guaranteed the support they require.

Learn More/ Resources:


11. Improved Care for Older People

Issues:

The majority of deaths caused by COVID-19 are occurring in nursing homes and long-term care facilities. Canada, having seen the virus’ impact on other countries, should have anticipated this outcome, but did little to protect the elderly. These facilities have been failing to meet the standard of care necessary to protect the health, safety, and dignity of residents. Lack of infection control measures and PPE are reportedly contributing to the outbreaks. Staff shortages have also put pressure on workers to continue going to work even when symptomatic. Visitors are currently not allowed in many facilities, meaning residents are denied much needed human contact. Provincial governments are tasked with responding to complaints, but more have been opting to do so through phone interviews, rather than onsite facility inspections. This method helps reduce risk of exposure to COVID-19, but may be ineffective and allow dangerous practices to persist.

Ongoing Work and Further Calls to Action:

Complaints over the treatment of older persons in these facilities have been filed with the Quebec Human Rights Commission. There are demands for financial compensation for those who have been harmed during the crisis and class action lawsuits are being proposed across the country. In the meantime, families are pushing to have two-way audio video cameras installed in long-term care facilities to alleviate resident loneliness and monitor care.

Advocates are also seeking large-scale reform, which includes bringing long-term care under the Canadian Health Act so that it can become a publicly insured, accessible, universal service. They also seek further investments in community-based assistance to reduce reliance on institutional facilities. Reform would also involve finding and addressing systemic problems within care facility networks. Allocating resources to implement more resident quality inspection could have the effect of finding and addressing dangerous and undignified practices. Internationally, there have also been efforts to push for a United Nations Convention on the Rights of Older Persons in response to human rights violations during this pandemic.

Learn More/ Resources:


12. Other Organizations Working on the COVID-19 Response in Canada

So many organizations are doing incredible work in response to this unprecedented situation. While we cannot list them all, we wanted to draw your attention to a few more.