Canada is widely recognized as an international leader in advancing human rights, but we are not without our own shortcomings. In recent months, United Nations Special Rapporteurs have expressed concerns about human rights issues within Canada. If we are to continue to speak with authenticity on the international stage, addressing these domestic issues ought to be at the forefront of our public dialogue.
Disability rights
Earlier this year, Catalina Devandas-Aguilar, the United Nations Special Rapporteur on the rights of persons with disabilities, completed her first official visit to Canada. Her End of Mission Statement observed various deficiencies in the implementation of the Convention on the rights of persons with disabilities, which Canada has ratified. While Canada has made some strides, she noted “significant shortcomings” in the way our governments “respect, protect and fulfill the rights of persons with disabilities”. She expressed that she is “extremely concerned about the implementation of the legislation on medical assistance in dying from a disability perspective”. Specifically, she noted the apparent lack of any protocol to “demonstrate that persons with disabilities have been provided with viable alternatives when eligible for assistive dying”. She also described receiving “worrisome claims about persons with disabilities in institutions being pressured to seek medical assistance in dying, and practitioners not formally reporting cases involving persons with disabilities.”
These concerns must be addressed. Government leaders must also explain how they will respond to the Special Rapporteur’s recommendation that the federal government investigate these “worrisome claims” , and “put into place adequate safeguards to ensure that persons with disabilities do not request assistive dying simply because of the absence of community-based alternatives and palliative care.”
Recent legal developments have potentially exacerbated these concerns. Last month, a Quebec court struck down the legal requirement that medical assistance in dying [MAID] be available only to those whose natural death is “reasonably foreseeable” [Truchon c. Procureur général du Canada]. Many are now concerned that MAID will be provided not only as an exceptional measure to hasten an already foreseeable death, but as a life-ending option for a wide range of conditions, including disability-related suffering, even for those with years left to live. On this point, over 65 disability rights organizations and allies urged the government to appeal the Truchon ruling, explaining how the “end of life criterion” struck a careful balance and was designed to counter the message “that disability-related suffering, largely caused by lack of support and inequality, justifies the termination of a person’s life”. Their submission was subsequently endorsed by over 250 physicians, who stressed the need to establish better support systems for patients before expanding their eligibility for euthanasia.
Despite these concerns and many others, the federal government did not appeal the Truchon decision. However, these issues must not be overlooked in our national conversation or in our government’s priorities in examining this matter.
Religious equality
MAID is not the only issue to attract the concern of UN Special Rapporteurs. Quebec’s Bill 21, which prohibits certain public workers from wearing religious symbols – effectively banning some religious adherents from government employment – was the subject of a letter jointly written by three UN Special Rapporteurs in May 2019. The Rapporteurs all expressed concern that the legislation potentially undermines international human rights commitments, including those which Canada and Quebec have adopted.
To date, no federal leadership candidate has committed to any specific action on Bill 21. Some may argue that there is little the federal government can do with respect to Bill 21, but that is not so. For starters, it could intervene in two constitutional challenges currently being litigated. Charter issues aside (the Quebec government has invoked the notwithstanding clause), both cases raise important federalism arguments about whether the province has the authority to enact Bill 21. In a preliminary ruling on the first challenge, a Quebec court accepted that this is a serious question to be tried [Hak c. Procureure générale du Québec].
The federal government could, at the very least, speak to this division of powers issue. As Supreme Court Justice Rand observed in Saumur v. Quebec (City): “That legislation ‘in relation’ to religion and its profession is not a local or private matter would seem to me to be self-evident: the dimensions of this interest are nationwide.”
Further, Bill 21 may not be unique to Quebec: a poll conducted by the Angus Reid Institute in May indicated that, nationwide, at least one-third of Canadians would support a similar law in their province. The federal government has a responsibility to defend the rights of religious minorities everywhere in Canada. Basic human freedoms (including those recognized long before the Charter, like freedom of religion, as well as those now in enshrined in international law) must be protected consistently across the country. A federal government should avoid any appearance that it countenances laws denying equal treatment to its citizens based solely on the public profession of their religion.
It has been suggested that Bill 21 should be respected as ‘Quebec’s choice’. But that is not, in itself, sufficient reason to preclude federal intervention on a matter such as this. Would Canada likewise need to abstain from acting or speaking against human rights violations in any other sovereign nation, because that, too, is their choice?
Canada’s global human rights efforts are of vital importance, but lose effectiveness and credibility if Canada does not respond meaningfully to concerns within our own borders. Canada needs to lead by example. The UN and the rest of the world are watching.
Derek Ross is executive director and general counsel for Christian Legal Fellowship, an NGO with special consultative status to the UN’s Economic and Social Council and an intervener in the Truchon case.
This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.