Reflections on the UN Human Rights Committee’s Review of Canada’s Compliance with the ICCPR

By Lara Koerner Yeo

In early July, for the first time in ten years, the Human Rights Committee (the “Committee”) reviewed Canada’s compliance with the International Covenant on Civil and Political Rights (the “ICCPR”).

The Committee’s observations released on July 23rd, serve as the only United Nations treaty body review of the 2006-2015 period.[1] Leading into the election season, the observations are timely and constitute an important indication of key human rights issues that warrant domestic action.

The Committee discussed Canada’s reluctance to comply with the interim measures of the Committee under the First Optional Protocol to the ICCPR (the “OP-ICCPR”). In response to the Committee’s questions, the Canadian delegation advised that interim measures are not binding.[2] The delegation took the position that while Canada would consider the Committee’s interim measures, it cannot always agree with them, in which case it will not act on them.[3]

Canada’s response runs counter to General Comment 33 of the Committee (“GC33”). GC33 outlines that a State’s failure to comply with interim measures is incompatible with a State’s obligation to respect and act in good faith in the individual communication procedure under the Optional Protocol.[4] In short, if a State does not comply with Committee interim measures, the State is engaging in the Optional Protocol procedure in bad faith.

While Canada has a record of acceding to interim measures, in recent years this has changed. In 2011, for example, the Committee submitted an interim measure request to Canada that was not followed.[5] Canada claimed that there was no obligation to accede to the request because federal government officials received it after the claimant had been deported.[6] The Committee, in its response, noted that just as Canada has the capacity to deport individuals, so too does it have the capacity to return the deported.[7] It found that deporting the claimant had violated his Article 7 rights under the ICCPR.[8] Canada has yet to arrange for the claimant’s return.[9] There are other cases in the last two years where Canada has not acceded to interim measure requests by the Committee and the Committee against Torture.[10] In one instance, a claimant is now in hiding in Canada after the State took action to deport him irrespective of a Committee interim measure request that he not be deported.[11]

This lack of respect for interim measures indicates that, at least since 2011, Canada has engaged with the Committee in bad faith. The Committee’s observations urge Canada to “reconsider its position in relation to Views and Interim measures,” thereby complying with GC33.[12]

General Comment No. 31 (“GC31”) sets out a guiding principle and paradigm underpinning the Committee’s periodic reviews of States’ compliance with the ICCPR. The Comment clarifies that States must act in good faith when giving effect to the ICCPR.[13] It also articulates that States party to the ICCPR are under a general obligation to ensure the civil and political rights of all individuals in a State’s territory and subject to its jurisdiction.[14] Thus, complying with the ICCPR requires States to create a mechanism to monitor domestic implementation of human rights law, as well as realize a process of state response to and compliance with the recommendations and interim measures of UN treaty bodies.

There is no effective accountability mechanism to ensure that Canada complies with its international human rights obligations. While the issue of implementation was not specifically picked up by the Committee in its most current observations, numerous civil society groups recognize that implementation continues to be an overarching concern.[15] Canada’s failure to implement a transparent, accountable implementation mechanism suggests a lack of respect for international human rights law and an unwillingness to improve compliance with the law and UN treaty body recommendations.

Many of the issues the Committee highlighted as principal matters of concern are recent developments in Canada, including the crackdown on civil society dissent and evidence-based human rights advocacy.[16] The Committee also took issue with Bill C-51 and the enhanced powers of the Canadian Security Intelligence Service, failures to regulate Canadian mining companies operating abroad, excessive use of police force, insufficient independent accountability mechanisms to investigate allegations of police misconduct, indefinite detention of irregular migrants, and cuts to health care for irregular migrants and refugees.[17]

Other issues recognized by the Committee are longstanding and attributed in great part to Canada’s history of colonial displacement of Indigenous peoples and the expropriation of their lands. In fact, two of the three priority issue areas Canada is asked to report on within a year centre on Indigenous peoples, namely, the murders and disappearances of Indigenous women and girls as well as Indigenous lands and titles.[18]

In the review meetings, Canada received multiple questions about its response to missing and murdered Indigenous women and girls. The government responded by referring to the 2014 and 2015 RCMP Operational Overview reports on the subject, emphasizing the rate of violence perpetrated by Indigenous men against Indigenous women, as well as the number of Indigenous women who were intoxicated at their time of death.[19] The RCMP data is not comprehensive and the government’s choice of statistics downplays its legal responsibility, focusing instead on the tired game of victim- and Indigenous community-blaming.[20]

The Committee recommends Canada conduct a national inquiry, adding its voice to other UN actors, including the Special Rapporteur on the Rights of Indigenous Peoples and the Committee on the Elimination of Discrimination against Women (“CEDAW”).[21] In a March 2015 report on the murders and disappearances, CEDAW found Canada to be in violation of the Convention on the Elimination of All Forms of Discrimination against Women, including Articles 2, 3, 5 and 14.[22] Canada was last reviewed by CEDAW in 2008 and has an upcoming review in late 2016.

In response to a Committee question about on-going sex discrimination in the Indian Act,[23] the government replied that it was committed to an “incremental approach” to reform and, without noting a specific name or title, referenced a government special rapporteur as evidence of ongoing state action.[24]

There are fundamental problems with the government’s response in this regard. Firstly, as Sharon McIvor, who launched the first case to be decided in Court on this matter, McIvor v Canada,[25] eloquently stated in her remarks to the Committee:

There are many things that Canada should consult Aboriginal communities about. Continued Indian Act sex discrimination is not one of them. The right to be free from legislated discrimination by Canada is a non-negotiable right of Aboriginal women.[26]

By accepting an incremental approach, there is no guarantee when, if ever, legislated sex-discrimination will be eradicated from the Act. Canada’s response to this issue is antithetical to its domestic and international gender equality obligations. The use of an incremental approach as justification to the Committee is an embarrassment.

Secondly, the special rapporteur referenced by the government is Douglas Eyford, Ministerial Special Representative on Renewing the Comprehensive Land Claims Policy. Eyford’s rapporteur work and report focus is on the Comprehensive Land Claims Policy, not sex-discrimination in the Act.[27] In sum, the government’s “special rapporteur” seems not to exist.

The Committee’s observations reflect Canada’s recent failures to comply with its international human rights obligations. As affirmed by civil society, Canada has the resources, the human and financial capital to respect and implement international human rights.[28] Now all that remains is for Canada to comply.

Lara Koerner Yeo is a JD Candidate at the Univeristy of Toronto Faculty of Law. She is a Steering Committee Member of the Canadian Feminist Alliance for International Action and attended the Human Rights Committee review of Canada in July.

[1]    Human Rights Committee, “Concluding observations on the sixth periodic report of Canada,” UN Doc CCPR/C/CAN/CO/6, 23 June 2015, online at: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fCAN%2fCO%2f6&Lang=en>.

[2]    Author’s personal notes from the Committee during its 114th session, 3176th meeting, 7 July 2015.

[3]    Ibid; Human Rights Committee, “Consideration of reports submitted by States parties under article 40 of the Covenant Sixth periodic reports of States parties due in October 2010 Canada,” UN Doc CCPR/C/CAN/6, 23 October 2013, at para 9, online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fCAN%2f6&Lang=en>.

[4]    Human Rights Committee, General Comment No. 33: The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights, UN Doc CCPR/C/GC/33, 5 November 2008, see para 19, online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fGC%2f33&Lang=en> (the OP-ICCPR allows individuals to submit complaints to the Committee alleging violations of their rights set out in the ICCPR; upon receipt of a complaint, the Committee follows the individual communication procedure provided for in the OP-ICCPR).

[5]    Human Rights Committee, Communication No. 2091/2011, Views adopted by the Committee at its 113th session (16 March-2 April 2015), UN Doc CCPR/C/113/D/2091/2011, 5 June 2015, online: OHCHR <http://www.ohchr.org/EN/HRBodies/CCPR/Pages/Jurisprudence.aspx>.

[6]    Ibid at para 9 (the federal government received the request in Ottawa 11 minutes after the claimant had been deported).

[7]    Ibid.

[8]    Ibid at para 11.

[9]    Supra note 2.

[10]  Email correspondence with Stewart Istvanffy (July-August 2015), counsel on individual complaints brought before UN treaty bodies.

[11]  Ibid; UNHR Committee, Communication No. 2284/2013 (a decision in this case is expected in October 2015).

[12]  Supra note 1 at para 5.

[13]  Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13, 26 May 2004, at para 3, online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f21%2fRev.1%2fAdd.13&Lang=en>.

[14]  Ibid.

[15]  The issue of implementation features in civil society submissions to the Human Rights Committee, see in particular the 5 June 2015 Amnesty International submission to the Committee, available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/SessionDetails1.aspx?SessionID=899&Lang=en.

[16]  Supra note 1 at para 15 (also see the Voices-Voix Dismantling Democracy report, available at http://voices-voix.ca/en/document/dismantling-democracy-stifling-debate-and-dissent-canada; Committee Member, Sir Nigel Rodley, referenced this report in his comments during the Committee’s 114th session, 3177th meeting, 8 July 2015).

[17]  Ibid at paras 6, 10, 11, 12.

[18]  Ibid at para 21.

[19]  Supra note 2.

[20]  Women’s Legal Education and Action Fund, Press Release, “Legal Strategy Coalition on Violence against Indigenous Women releases key concerns with RCMP “Missing and Murdered Aboriginal Women: 2015 Update” (29 July 2015), online: LEAF <http://www.leaf.ca/legal-strategy-coalition-on-violence-against-indigenous-women-releases-key-concerns-with-rcmp-missing-and-murdered-aboriginal-women-2015-update/> (see issue 3 “Limited data set masks RCMP failures and continues to cloud the facts”).

[21]  Supra note 1 at para 9 (also see OHCHR, Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, The situation of indigenous peoples in Canada, UN Doc A/HRC/27/52/Add.2, 4 July 2014, at para 89, online: <http://unsr.jamesanaya.org/country-reports/the-situation-of-indigenous-peoples-in-canada>).

[22]  Committee on the Elimination of Discrimination against Women, Report of the inquiry concerning Canada of the Committee on the Elimination of Discrimination against Women under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination, UN Doc CEDAW/C/OP.8/CAN/1, 6 March 2015, at para 215, online: OHCHR <http://www.ohchr.org/en/newsevents/pages/displaynews.aspx?newsid=15656&langid=e>.

[23]  Indian Act, RSC 1985, c I-5 (the “Act”).

[24]  Author’s personal notes from the Committee during its 114th session, 3177th meeting, 8 July 2015.

[25]  2009 BCCA 153, 91 BCLR (4th) 1 (also see Aboriginal Affairs and Northern Canada, “Gender Equity in Indian Registration Act”, 2013, online: AADNC <https://www.aadnc-aandc.gc.ca/eng/1308068336912/1308068535844>).

[26]  Canadian Feminist Alliance for International Action, News Release, “Sharon McIvor delivers FAFIA Statement in the UN Human Rights Committee July 6, 2015” (7 July 2015), online: FAFIA <http://fafia-afai.org/en/sharon-mcivor-delivers-fafia-statement-in-the-un-human-rights-committee-july-6-2015/> (also see Sharon McIvor’s petition on the on-going legislated sex-discrimination, currently pending with the UN Human Rights Committee, Communication No. 2020/2010, online: PHRC <http://povertyandhumanrights.org/wp-content/uploads/2011/08/Mcivor-v.-Canada-Petitioner-Comments-December-5-2011.pdf>).

[27]  See Aboriginal Affairs and Northern Development Canada, “Renewing the Federal Comprehensive Land Claims Policy” (2 April 2015), online: AANDC <http://www.aadnc-aandc.gc.ca/eng/1405693409911/1405693617207>.

[28]  Ad hoc Coalition of Canadian and International NGOs, News Release, “Canada must take action on the United Nations Human Rights Committee’s Concluding Observations released today” (23 July 2015), online: Market Wired <http://www.marketwired.com/press-release/-2041376.htm>.

By |September 21st, 2015|Blog|

Access to Justice and the International Human Rights Framework

By Pamela R. Kovacs

 Access to justice is a trending topic in Canada and in many parts of the world. In the mix of current discussions, it is important to recall that access to justice is a right entrenched in international human rights law. It is also fundamental for the realization of other human rights.

Access to justice (AtoJ) is not simplistically defined, and it is “much more than improving an individual’s access to courts, or guaranteeing legal representation. It must be defined in terms of ensuring that legal and judicial outcomes are just and equitable.”[1]

Justice and equity are intrinsically linked and shaped by human rights. The Special Rapporteur on the Independence of Judges and Lawyers has stated that a “complex fabric of rights related to access to justice” are contained in the major international human rights instruments:

The legal complexity and richness of the concept of access to justice lies in the fact that it is both a right in itself and the means of restoring the exercise of rights that have been disregarded or violated. As an indispensable component of specific rights such as the right to liberty and to personal safety, it is closely linked to the right to effective judicial protection (fair trial or due process), the right to an effective remedy and the right to equality.[2]

The triad of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights form the core of international human rights law. States ratifying the Covenants agree that they will abide by the rights enshrined in these treaties and work toward respecting, protecting, and fulfilling these obligations domestically through institutional mechanisms. Pursuant to the principle expressed in Article 26 of the Vienna Convention on the Law of Treaties, State parties are required to give effect to their obligations in good faith.[3] Canada acceded to both Covenants in May 1976.

Universal Declaration of Human Rights

The Universal Declaration of Human Rights (UDHR) is the cornerstone of international human rights law. The UDHR was proclaimed by the United Nations General Assembly in Paris on 10 December 1948 as General Assembly Resolution 217A. Articles 7 and 8 provide for the right to equality before the law without discrimination, equal protection of the law, and the right to an effective remedy by competent national tribunals.

International Covenant on Civil and Political Rights

Article 2 of the International Covenant on Civil and Political Rights (ICCRP) builds on the UDHR. Similar to Article 7 of the UDHR, Article 2(1) of the ICCPR provides for non-discrimination, notably on the basis of social origin or status, meaning that ability to pay should not be a barrier to claiming rights. This is also reinforced in Article 26 which provides that all persons are equal before the law and entitled to equal protection of the law, without discrimination.

The Human Rights Committee (HRC) monitors the implementation of the ICCPR by State parties and provides guidance to States to help clarify and realize their commitments. In commentary for Article 2, the HRC has noted the positive obligations on States to ensure ICCPR rights and protect against violations.[4]

Similar to Article 8 of the UDHR, Article 2(3) of the ICCPR requires an effective remedy by competent authority. The HRC has commented that Article 2 requires that States “adopt legislative, judicial, administrative, educative and other appropriate measures in order to fulfil their legal obligations.”[5] States are required to take steps across the spectrum of government control to ensure that rights are realized. The HRC has also stated that Article 2(3) “requires that in addition to effective protection of Covenant rights States Parties must ensure that individuals also have accessible and effective remedies to vindicate those rights.”[6] The addition of the term accessible complements the framework of equal and effective protection and remedy that the UDHR provides and is reinforced in the ICCPR.

The ICCPR also contains Article 14 which specifically addresses the administration of justice. The HRC has recognized Article 14 as the right to equality before the courts and tribunals and to a fair trial. The HRC has been clear that aspects of Article 14 relate to civil law matters[7] and the State is under an obligation to give effect to these rights: “A situation in which an individual’s attempts to access the competent courts or tribunals are systematically frustrated de jure or de facto runs counter to the guarantee of article 14…”[8]

From an AtoJ perspective, the recognition of de facto barriers is important. This requires the elimination of obstacles (e.g. financial, social, or cultural) that, in practice, erode the ability to claim justice. The removal of these barriers is the obligation of the State and requires, for instance, information about rights and laws, assistance in pursuing a legal matter, and an overarching affordable legal system. The HRC has stated:

The availability or absence of legal assistance often determines whether or not a person can access the relevant proceedings or participate in them in a meaningful way. While Article 14 explicitly addresses the guarantee of legal assistance in criminal proceedings, in paragraph 3(d), States are encouraged to provide free legal aid in other cases, for individuals who do not have sufficient means to pay for it. In some cases, they may even be obliged to do so.[9]

In essence, the effective application of Article 14 is that representation and access to legal services is necessary for equal AtoJ in both civil and criminal matters. The ICCPR in Articles 26 and 14 provides for: equality before the law; equality under the law; equal protection of the law; and equal benefit of the law. This signifies “both formal equality, meaning the application of the law, and substantive equality, meaning the result and benefits of applying the law. For these equality rights to be effective, individuals must be given the ability to obtain legal assistance when required and thus effective access to the courts and the legal process.”[10]

The ICCPR adds much to a rights-based AtoJ framework. It reinforces the principles of equal (non-discriminatory) access, which entails equality of arms between parties and an effective system of competent authorities for hearing disputes, including in civil matters. De facto barriers must be removed and steps must be taken to give effect to the system from a “legislative, judicial, administrative, and educative perspective”.[11]

International Covenant on Economic, Social and Cultural Rights

The International Covenant on Economic, Social and Cultural Rights (ICESCR) contains no direct counterpart to Article 2 of the ICCPR, which obligates State parties to provide judicial remedy. However, the ICESCR notes in its preamble that “in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights” which includes “appropriate means of redress, or remedies … and appropriate means of ensuring governmental accountability.”[12]

Similar to the HRC, the Committee on Economic, Social and Cultural Rights (CESCR) provides guidance on interpretation of the ICESCR and its domestic application, noting that remedies may be judicial or administrative, but in the case of the latter, must be “accessible, affordable, timely and effective.”[13] With this description, the CESCR has added to a framework of AtoJ. Combining all of these elements creates a robust rights-based approach in which to view AtoJ constructed on the standards set forth in the major international human rights instruments: equal, accessible, affordable, timely, and effective.[14] State parties are under obligations to take steps to progressively realize this framework.


It is well established that the realization of some human rights is a process, while some rights, for instance, the right to be free from torture, must be realized immediately. Article 2(2) of the ICCPR, requires that State parties take the necessary steps to give effect to rights by legislating and building a system of laws and remedies that develops all human rights. This requirement is unqualified and of immediate effect: “A failure to comply with this obligation cannot be justified by reference to political, social, cultural or economic considerations within the State.”[15]

Article 2(1) of the ICESCR outlines that States have the obligation to progressively realize rights, but “what is required from Canada is more than what is required from Chad.”[16] For many nations, rationing of justice systems and legal services has become the norm due to budgetary considerations, which, is an “overt challenge to universal equality before the law.”[17]

The CESCR indicates that States must take steps to realize their obligations and that these steps must be deliberate, concrete, targeted and appropriate.[18] Further, as reflected in Article 27 of the Vienna Convention on the Law of Treaties, State parties “may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”

It is clear that there is “cost and complexity in giving effect to human rights”[19] but caution must be taken not to distract from the idea of the right itself, the aim sought, and a principled manner of realizing the right. In recent years, due to necessity, Canada has seen a surge of interest in AtoJ, particularly in civil matters. From the recent Canadian Bar Association Report on equal AtoJ to the Report of the Action Committee on Access to Justice in Civil and Family Matters to the expansion of the research agenda of the Canadian Forum on Civil Justice and burgeoning pro bono efforts. Further, there is a growing understanding that there are considerable costs to health and well-being when legal needs are not addressed and small problems morph into much larger ones.[20] In addition to a legal obligation, there is an economic argument in favour of AtoJ.

As the Special Rapporteur on the Independence of Judges and Lawyers has stated, “Access to Justice requires the establishment of a judicial system that guarantees rights, and of parallel measures such as mechanisms and programmes to facilitate free legal assistance.”[21] With the grounding that AtoJ is a human right, with a coherent framework for implementation, the importance of realization matters not only for Canadians and a system of justice, but for the larger multi-lateral environment related to human rights and accountability of the State towards its citizens as rights bearers. Canada has a legal obligation to realize these rights – they are not simply aspirational but must become concrete in practice.


Pamela R. Kovacs is currently a Research and Learning Officer with the International Development Law Organization. She formerly practiced law with McKercher LLP, was the founding Executive Director of Pro Bono Law Saskatchewan, and a member of a number of task forces and committees focused on access to justice. This post is based on her thesis: “Developed and Developing Views on Access to Justice”.


[1] United Nations Development Programme. ‘Access to Justice Practice Note’, 2004.

[2] Despouy, Leandro. ‘Report of the Special Rapporteur on the Independence of Judges and Lawyers’, A/HRC/8/4, United Nations General Assembly, 13 May 2008.

[3] Canada acceded to this treaty on 14 Oct 1970.

[4] United Nations. ‘General Comment No. 31’, Human Rights Committee, CCPR/C/21/Rev.1/Add. 13 (2004) para. 8.

[5] Ibid., 7.

[6] Ibid., 15.

[7] United Nations. ‘General Comment No. 32’, Human Rights Committee, CCPR/C/GC/32 (2007) section III.

[8] Ibid., II.

[9] Ibid.

[10] See: Skinnider, Eileen. ‘The Responsibility of States to Provide Legal Aid’, Vancouver: The International Centre for Criminal Law Reform and Criminal Law Policy, Prepared for the Legal Aid Conference, Beijing, March, 1999 at 14-15.

[11] United Nations. ‘General Comment No. 31’, Human Rights Committee, CCPR/C/21/Rev.1/Add. 13 (2004) para. 7.

[12] United Nations. ‘General Comment No. 9’, Committee on Economic, Social, and Cultural Rights, E/C.12/1998/24 (1998) para. 2.

[13] Ibid., para. 9.

[14] See: Curran, Liz and Mary Anne Noone. ‘Access to Justice: A New Approach Using Human Rights Standards.’ International Journal of the Legal Profession, 15.3 (2008): 195-229 at 203.

[15] United Nations. ‘General Comment No. 31’, Human Rights Committee, CCPR/C/21/Rev.1/Add. 13 (2004) para 14.

[16] See: Hunt, Paul. ‘Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health’, A/HRC/4/28, 17 January 2007.

[17] Moorhead, Richard and Pascoe Pleasence. ‘Access to Justice after Universalism: Introduction’, Journal of Law and Society 30.1 (2003): 1-10.

[18] United Nations. ‘General Comment No. 3’, Committee on Economic, Social, and Cultural Rights., contained in document E/1991/23 (1990), para. 2.

[19] Rice, Simon. ‘A Human Right to Legal Aid.” Conference on Protection and Promotion of Human Rights Through Provision of Legal Services: Best Practices from Africa, Asia, and Eastern Europe, March 27-30, 2007 at 8.

[20] See: Pleasence, Pascoe. ‘Causes of Action: Civil Law and Social Justice’, 2nd ed. London: The Stationery Office, 2006. At 2.

[21] Despouy, Leandro. ‘Report of the Special Rapporteur on the Independence of Judges and Lawyers’, A/HRC/8/4, 13 May 2008 at para. 23.

By |May 27th, 2015|Blog|