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Introduction

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The purpose of this paper is to discuss and reflect on the emerging role of human rights commissions in the 21st century. The new millennium finds human rights commissions increasingly under pressure to respond to government restructuring, new grounds or mandates, globalisation and the growing role and expectations of civil society. These developments have implications for human rights generally and for human rights commissions in particular.

At the same time, the international community has made it clear that human rights commissions are, in some respects, “trustees” of human rights at the national level, along with a range of other partners. By “human rights” we mean, of course, not only civil and political rights but also economic, social and cultural rights. Increasingly, the distinctions between the two sets of rights are falling away. The United Nations and other international bodies have declared that all human rights are universal, indivisible, interdependent and interrelated. As a result, we are taking a fresh look at the rights that need protection and how this can and should be achieved.

In the industrialized West, civil and political rights have historically received more attention, legal codification, protection and judicial interpretation than have economic, social and cultural rights. Economic, social and cultural rights are often seen as unenforceable, non-justiciable norms that are only to be fulfilled “progressively” over time.[1] They are often viewed as rights that may require state action for their realisation and, hence, are more appropriately left to the legislatures to address. However, there is a remarkable degree of interrelationship between the two sets of rights, and full realisation of both may be seen as a common ideal.[2]

Indeed, economic, social and cultural rights are especially relevant to human rights dialogue today. While the International Covenant on Economic Social and Cultural Rights[3] sets out an international framework for protection of these rights, there are few mechanisms for enforcement. By ratifying the Covenant in 1976, Canada undertook international obligations to uphold economic, social and cultural rights. But the perceived lack of enforceability of these rights has created growing international concern about their protection. The emerging socio-economic pressures on Canadian society, coupled with judicial restraint in the area of social and economic rights, have caused many human rights commissions to look at their own mandates in an effort to determine how more can be done. In Quebec, of course, the legislation[4] specifically provides for protection against discrimination on the ground of social condition, while the Canadian Human Rights Act Review Panel has studied a similar option and, in its report released in June 2000[5], recommended the addition of social condition, as a prohibited ground of discrimination, to the federal Act.

The issue is timely for discussion in Canada. Recent statistics show that, using Statistics Canada’s Low-income Cut-offs as a measurement of poverty, 17.9 percent of Canadians live in poverty.[6] For five years in a row, Canada has been ranked at the top of the United Nations Development Programme’s (“UNDP”) Human Development Index while the UNDP Human Poverty Index ranks Canada tenth on the list of industrialised countries.[7]

In 1995, 57 percent of persons living in low-income situations were women.[8] Involuntary reliance on part-time or minimum wage employment, being a member of a mother-led single-parent family, being an elderly woman, a person with a disability, a racial minority, a recent immigrant or an Aboriginal person greatly increases the likelihood of being poor.[9] Among the major problems facing those who are poor include obtaining adequate food and affordable housing. Poverty has been shown to have a direct bearing on individual health and a negative impact on educational achievement, which in turn has a significant influence on the risk of being poor.[10]

In Ontario, homelessness, particularly in large urban centres, has emerged as a significant social and political issue. In many areas, the affordable rental housing supply has been diminishing. Despite some recent advances through new initiatives to support housing at the federal and municipal levels (notably funding earmarked by the federal government for housing and the implementation by Toronto City Council of several of the recommendations in the Golden Report[11]), the resources are outstripped by demand. There have been reported increases in reliance on food banks[12] and temporary shelters[13]. These trends are occurring despite a strong economy and a time of unprecedented employment rates. These contradictions raise important questions about the meaning of “economic rights” and “social rights” and about whether human rights commissions can or should have a role in protecting them.

Concern has been expressed at the international level about Canada’s record in implementing social and economic rights. Concerns include Canada’s response to homelessness, cuts to social programs, the decline in social assistance rates and the discriminatory impact of such cutbacks on certain disadvantaged groups such as women, children and persons with disabilities.[14] The 1998 Concluding Observations of the United Nations Committee on Economic Social and Cultural Rights (the “ICESCR Committee”) are also critical of provincial governments for urging on their courts an interpretation of the Canadian Charter of Rights and Freedoms (the “Charter”) which would deny protection of Covenant rights and leave litigants without basic necessities of life and without any legal remedy.[15]

The 1998 Concluding Observations contain a number of recommendations to enhance the implementation of social and economic rights. The ICESCR Committee reiterates that economic and social rights should not be reduced to “principles and objectives” in social policy and programs. The Committee urges the federal government to ensure that the provinces are made aware of their obligations and that ICESCR rights are enforceable in the provinces through legislation, policy measures and the establishment of independent and appropriate monitoring and adjudication mechanisms.[16] Further, the ICESCR Committee suggests that there is a need for education with respect to treaty obligations.[17] Other recommendations about specific issues are also included, for example with respect to women's economic and social rights, the right to an adequate standard of living, workers’ rights and homelessness.

This paper will begin with a brief discussion of social and economic rights under international law. It will review these rights as they have been implemented in Canada and will explore the concept of “social condition” or related concepts as an expression of social and economic rights that may be protected by human rights commissions.

Although cultural rights are often grouped with social and economic rights, they will not be considered as they raise a series of very distinct issues and questions that are beyond the scope of the paper.


[1] The United Nations Committee on Economic, Social and Cultural Rights, Fact Sheet No. 16 (Rev. 1) (1991), online: United Nations Office of the High Commissioner for Human Rights Homepage <http://www.unhchr.ch/html/menu6/2/fs16.htm> (date last accessed: 02 January 2001) [hereinafter Fact Sheet No. 16].
[2] Dr. M.K. Addo, “The Justiciability of Economic, Social and Cultural Rights” (1988) 14 Commonwealth Law Bulletin 1425 at 1425.
[3] 16 December 1966, 993 U.N.T.S. 3, Can. T.S. 1976 No. 46 (entered into force 03 January 1976, accession by Canada 19 August 1976) [hereinafter ICESCR].
[4] Quebec Charter of human rights and freedoms, R.S.Q. c. C-12 [as amended].
[5] Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision (Ottawa: Minister of Justice and the Attorney General of Canada, 2000) (Chair: Honourable Gérard La Forest), online: Canadian Human Rights Act Review Homepage <http://www.chrareview.indexe.html> (date last accessed: 02 January 2001) [hereinafter Review Panel Report].
[6] From S. Day, M. Young & N. Won, “The Civil and Political Rights of Canadian Women” Research prepared for the Honourable Lois M. Wilson, the Senate of Canada (Spring 1999), citing Statistics Canada, “The Daily”, (03 March 1999), online: Hon. Lois M. Wilson’s Homepage <http:// sen.parl.gc.ca/lwilson/default.htm> (date last accessed: 02 January 2001).
[7] United Nations Committee on Economic, Social and Cultural Rights, Consideration of Reports Submitted by States Parties under Articles 16 and 17 of the Covenant (Concluding Observations – Canada), 10 December 1998, E/C.12/1/Add.31. at para. 3 [hereinafter 1998 Concluding Observations].
[8] See Day, Young & Won, supra, note 6, citing National Council of Welfare, Poverty Profile 1995 (Ottawa: Supply and Services Canada, 1997) at 34, 84 and 85.
[9] M. Jackman, “Constitutional Contact with the Disparities in the World: Poverty as a Prohibited Ground of Discrimination Under the Canadian Charter and Human Rights Law” (1994) 2 Review of Constitutional Studies 76 at 83 [hereinafter Constitutional Contact with the Disparities in the World].
[10]Ibid. at 84 - 88.
[11] Mayor’s Homelessness Action Task Force, Taking Responsibility for Homelessness: An Action Plan for Toronto (Chairperson: A. Golden), online: City of Toronto Homepage <http://www.city.toronto.on.ca/mayor/homelessnesstf.htm> (date last accessed: 11 January 2001).
[12] The Association of Canadian Food Banks has stated that food banks have seen a steady increase in demand for their services. In Ontario, in less than two months following welfare rate reductions, food banks reported increases in use of up to 70%; from The National Anti-Poverty Organization’s Submission to the U.N. Committee on Economic, Social and Cultural Rights (February 1996), online: Charter Committee on Poverty Issues Homepage <http://www.web.net/ccpi/un/napo.html> (date last accessed: 02 January 2001).
[13] See, for example, Toronto Disaster Relief Committee, State of Emergency Declaration: An Urgent Call for Emergency Humanitarian Relief & Prevention Measures (October 1998), online: Toronto Disaster Relief Committee Homepage <http://www.tao.ca/~tdrc/booklet.shtml> (date last accessed: 02 January 2001) which states that on any given day in 1996, about 3,100 different people used Toronto’s emergency shelters. This is an increase from 2600 in 1994 and 2100 in 1988.
[14] See the 1998 Concluding Observations, supra, note 7; for example, paragraphs 16, 19, 20, 21, 23-25, 27, 28, 32, 33, 35, 36.
[15]Ibid. at para. 14.
[16]Ibid. at para. 52.
[17]Ibid. at para. 58.

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