NARC CERD Report

Compiled by

NATIONAL ANTI-RACISM COUNCIL OF CANADA

July, 2002

Contact: National Anti-Racism Council of Canada
c/o CultureLink
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Toronto, Ontario
Canada
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Tel: (416) 588-6288
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email: kjacobs@culturelink.net or mkerr@culturelink.net
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Table of Contents

Introduction: About NARC 3
About this report

Chapter 1: Human Rights 6
Introduction
Relevant Convention Provisions
Specific Violations and Concerns

Chapter II: Employment & Poverty 16
Introduction
Relevant Convention Provisions
Economic Racism

Chapter III: Immigration: Refugee and Migrant 30
Introduction
Relevant Convention Provisions
Concerns about Immigration and Racism

Chapter IV: Health 42
Introduction
Relevant Convention Provisions
Health Issues and Racism

Chapter V: Media 54
Introduction
Relevant Convention Provisions
Issues of Racial Discrimination in the Media

Chapter VI: Education 67
Introduction
Relevant Convention Provisions
Ongoing Racism in Education

Chapter VII: The Criminal Justice System 73
Introduction
Relevant Convention Provisions
Racism in the Justice System

Chapter VIII: Province of Ontario 83
Introduction
Relevant Convention Provisions
Racial Discrimination in Ontario

Chapter IX: Province of British Columbia 99
Relevant Convention Provisions
Racial Discrimination in British Columbia
Introduction

About NARC

The National Anti-Racism Council (NARC) of Canada is a coalition of community based organizations and individuals who came together in May 2000, with a view to ensuring that there was wide community input both in the development of Canada’s contributions to the United Nations World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (WCAR), and in local community capacity building and commitment implementation work in the years following the global gathering.

Between May 2000 and September 2001, NARC was busy outreaching to various communities of colour, immigrant and refugee advocacy groups and other anti-racist/anti-discrimination organizations across Canada in order to best organize our communities around the WCAR process. Many of the NARC members attended the WCAR as representatives of their respective communities. Collectively as well, NARC released a report entitled “The Two faces of Canada: A Community Report on Racism”, in order to assist the Canadian NGOs attending the WCAR in telling the truth about Canada’s record on racism.

Within one year, NARC has grown from a small group of primarily locally based organizations to a truly National Network of Canadian community-based non-governmental organizations committed to anti-racism and opposing related intolerance, to the sharing of anti-racism related information and resources, and to building and supporting local, regional, national and international strategies to effectively address racism and related intolerance. Our membership includes national organizations representing immigrants and refugees or ethno-racial groups, such as the Canadian Council for Refugees and the Chinese Canadian National Council, provincial networks such as the Council of Agencies Serving South Asians, and local advocacy organizations and community based legal clinics like Urban Alliance on Race Relations, African Canadian Legal Clinic and the Metro Toronto Chinese & Southeast Asian Legal Clinic. We also have community groups representing the various regions of Canada ranging from the Multicultural Association of Fredericton in the East, to the Vancouver Association of Chinese Canadians in the West.

About this Report

Building upon our experiences at the WCAR, members of NARC have come to recognize the important role of international human rights instruments in the development of domestic anti-racism and anti-oppression agenda. While Canada is recognized internationally as a humanitarian country and while policies of the Canadian Government are routinely adopted by other countries as model policies for promoting equity, Canadian NGOs are all too aware of the real struggles we face within our country. Despite the official rhetoric, racism is alive and well in Canada, and is indicative of the failure of our Government to address this fundamental problem. Even more troubling, is the fact that often times racism is born out of the laws and policies of the Government of Canada towards persons of colour, immigrants and refugees.

While numerous Canadian NGOs advancing environmental justice, gender equality, or rights of the indigenous peoples have long been active players on the international stage, informing discussions at the UN level on Canada’s record in addressing their concerns, the same cannot be said of the Canadian community-based anti-racism organizations. A lack of familiarity with the UN process, inadequate resources and expertise, and skepticism about the effectiveness of the international human rights system, are among the reasons for our lack of participation at the UN CERD Committee process. As a result, reports submitted by the Canadian Government to the CERD Committee are by and large left unchallenged. The absence of community participation is perhaps also one of the reasons why the Canadian Government has been able to get away with its late filing of the compliance report.

NARC welcomes the opportunity to provide the CERD Committee with a community perspective on the status of compliance with the Convention by our government. The submissions that we have prepared are the product of a collective effort and consultative process, whereby members of NARC and several outside experts were invited to help put together a document which covers a wide range of issues, including immigration, employment and human rights, etc. Because this is the first attempt by NARC - and indeed by many of the NARC members - to compile a shadow report on CERD, and because of the time constraint, we are unable to explore all the issues in all parts of Canada that are relevant to our communities. What the submission attempts to achieve is a snapshot of the problem of racism - systemic and otherwise - in our country, and the success, if any, on the part of our Government in addressing the issues.

While much of our submission focuses on the compliance with CERD by the Canadian Government, we have dedicated two chapters to address the specific issues within the provinces of Ontario and British Columbia. These two provinces are among the largest in Canada, and they also have the highest proportion of racialized people, immigrants and refugees in our country. We also decided to highlight these two provinces as they have each gone through dramatic political changes over the last few years, leading to significant implications for the protection and advancement of human rights.

As Canada is five years behind its reporting schedule, much has changed since 1997. In particular, as a result of the aftermath of the September 11 event, we need more than ever a strong commitment from our political leaders and international bodies to stand up against racism. We need to be even more vigilant in stopping the spread of hate and intolerance. The Convention on the Elimination of All Forms of Racial Discrimination is becoming most relevant, and the need to comply with the provisions therein is becoming most pressing at this critical moment.

Throughout the report, we use different terminology interchangeably to describe our constituencies: racialized communities, communities of colour, and visible minority communities. While we prefer the first two terms, the latter term is used when we are quoting from another source.

Finally, representatives from NARC will be attending the Committee meeting as observers when Canada presents its report. We look forward to the probing and informative discussions at this critical meeting.

Chapter I: Human Rights

Introduction

Canada has an international reputation as a promoter and protector of human rights. But under that facade lie many problems, particularly for those individuals and groups who are vulnerable targets of discrimination.

On paper, Canada has a well-established human rights protection system. Our Constitution contains a Charter of Rights and Freedoms (the "Charter") which, among other things, grants every individual in Canada equal protection and equal benefit before and under the law. The Canadian Charter applies to all laws and government actions. Apart from the Charter, individual victims of discrimination can also seek protection and redress under federal and provincial human rights laws.

For reasons that will be outlined below, it is our position that the human rights system in Canada is both ineffective and inadequate. The system itself has become, in some instances, a barrier for people facing racial discrimination and other forms of discrimination to access justice. In this chapter, we will be focusing on the federal human rights system which is embodied in the Canadian Human Rights Act (CHRA), and which in turn is administered and enforced by the Canadian Human Rights Commission (CHRC) and an independent Tribunal.

Nowhere does the CHRA refer to Canada's international obligations, including its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Nor does it expressly state the connection between the Act and Canada's international obligations.

In December 1998 the UN Committee on Economic, Social and Cultural Rights reminded Canada of its obligation to ensure that its human rights machinery comports with its treaty commitments, stating in its Concluding Observations on Canada's Report:

...enforcement machineries provided in human rights legislation need to be reinforced to ensure that all human rights claims are not settled through mediation and be promptly determined before a competent human rights tribunal, with the provision of legal aid to vulnerable groups.

In April 1991, the Human Rights Committee, in its concluding observations on Canada's fourth report on its implementation of the International Covenant on Civil and Political Rights stated:

The Committee is concerned with the inadequacy of remedies for violations of articles 2, 3 and 26 of the Covenant. [These are the anti-discrimination articles.] The Committee recommends that the relevant human rights legislation be amended so as to guarantee access to a competent tribunal and to an effective remedy in all cases of discrimination.

Since then, the Canadian human rights legislation has not been strengthened. On the contrary, in some provinces, including Ontario and British Columbia, there have been serious setbacks in terms of progress and advancement of human rights. The latest political regimes in these provinces, each of which has a distinctively anti-equity agenda, have moved the provinces back at least 20 years in the area of human rights.

In British Columbia, for instance, the government has just announced its plan to completely dismantle the Human Rights Commission. In Ontario, while the Human Rights Commission is still in operation, the inadequate funding support and the change in directions as a result of change in political leadership, has severely undermined the effectiveness of the Commission in carrying out its legislative mandate. The issues arising in British Columbia and Ontario will be discussed in the chapters on specific provinces in our report.

In preparing this chapter, we have reviewed a number of reports, including one entitled "Promoting Equality: A New Vision 2000,” prepared by the Canadian Human Rights Act Review Panel under the authority of the Minister of Justice and the Attorney General of Canada. We have examined specific submissions made by NGOs to the Review Panel. We are also drawing from the collective experiences of Canadian NGOs, which advocate for equality and which have assisted or represented individual victims of racial and other discrimination.

Relevant Convention Provisions

Article 2

1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:

(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons, or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;
(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization;

Article 5

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

(a)The right to equal treatment before the tribunals and all other organs administering justice;

Article 6

States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.

Article 7

States Parties undertake to adopt immediate and effective measures, particularly in the fields o teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention.
Specific Violations/Concerns

Article 2

In 1992, the National Capital Alliance on Race Relations (NCARR) filed a complaint against Health Canada alleging discrimination against visible minorities contrary to section 10 of the CHRA. The complaint alleged that Health Canada deprived visible minorities of employment opportunities in management and senior professional jobs. The matter went to a Tribunal in 1995. The Tribunal found in favour of the complainants and an extensive employment equity scheme was ordered.

But since that decision was made, substantial statistical and other evidence continues to show that, as one of the largest employers in Canada, the Canadian Government has not ceased to engage in employment practices which result in systemic discrimination against racial minorities and other marginalized groups, contrary to Article 2 of the Convention.

As pointed out in the findings of the CHRA Review Panel, a report on visible minorities in the Public Service, Embracing Change in the Federal Public Service: Report of the Task Force on the Participation of Visible Minorities in the Federal Public Service, states, “From visible minority employees, the Task Force heard numerous charges of systemic discrimination along the lines of ‘old boys’ club.”

The Review Panel report continues:

Visible minorities across the country expressed dismay about the lack of recognition of foreign degrees and credentials and about the scarcity of visible minorities on selection boards. Visible minority employees were concerned that the delegation of authority to departments for implementing employment equity has not been accompanied by appropriate provisions for accountability and that, as a result, systemic discrimination may remain embedded.

Similarly, the report of the Defence Minister's Advisory Board on Canadian Forces Gender Integration and Employment Equity, Successes and Opportunities: 1999 Annual Report, stated, “The Board notes that according to the first Equity Plan for the Canadian Forces, all designated groups are substantially under-represented.”

While systemic discrimination remains rampant within the federal public sector, its victims find little recourse under the Canadian Human Rights Act and its enforcement mechanism. The reasons for the failure of the federal human rights system to provide effective remedy will be discussed in greater detail in the following sections.

In its concluding remarks on Canada's compliance with the International Covenant on Civil and Political Rights, the Human Rights Committee in 1999 welcomed the implementation of the Employment Equity Act (the "EEA") by the Canadian Government. The EEA was seen as evidence that the government was “establishing a compliance regime that requires federal departments to ensure that women, persons belonging to aboriginal and visible minorities and disabled persons constitute a fair part of their workforce.” The government, however, did not brief the Committee on the actual rate of compliance with the EEA.

The Federal EEA was enacted at the recommendation of Rosalie Abella (as she then was before her appointment to the Ontario Court of Appeal) in the Royal Commission Report on Equality in Employment. The EEA underwent substantial amendment in 1995.

In its 1999 Annual Report, the Canadian Human Rights Commission shows that only a few (4) employers were actually in compliance of the EEA. While there has been progress for some designated groups, the Commission reports that “movement towards an equitable federal workplace continues at a snail’s pace.” Aboriginals, visible minorities and disabled persons simply are not making any progress.

One barrier to enforcement lies in the fact that information from an Employment Equity audit cannot be used in a human rights complaint by the CHRC. As well, there are concerns about the scope of tribunal orders and time spent in negotiating undertakings and following up. This is so, even though it is well recognized that the individually based complaint process will not be sufficient by itself to achieve equality.

The EEA also does not allow for the participation of community groups in the process. The 1995 amendments to EEA result in even greater limits imposed on the ability of the community groups to file complaints under the Act, even though these groups could provide invaluable sources of information about the various communities whose members' equality is supposed to be advanced by the Act. Therefore, while on its face Canada is in compliance with Article 2(e) by virtue of the EEA, in reality the targeted groups have yet to benefit from this mostly powerless piece of legislation.

Article 5

The CHRA does not apply to the Indian Act. It is the only exception in the Act that affects individuals mainly on the basis of race. Moreover, it prevents not only status Indians from making a complaint about discrimination authorized under the Indian Act, but also their families (if not given status), other Aboriginal people, Inuit, Metis and anyone else who might wish to challenge any matter authorized by that Act. Effectively, many Aboriginal peoples are left with no redress when their rights are being violated by virtue of the authority granted under the Indian Act.

Aboriginal peoples are not the only group excluded from the CHRA. Pursuant to section 40 of the CHRA, only those "lawfully present" in Canada may file a complaint. Individuals who are potentially excluded include immigrants who are applying to enter Canada, as well as non-status immigrants and rejected refugee claimants who are present in Canada without any lawful status. Many immigrant and refugee advocates have long decried the discriminatory practices which are prevalent both in overseas visa offices at various Canadian embassies or in domestic immigration offices (see our chapter on immigration and refugees). Non-status immigrants are especially vulnerable to such practices given their lack of status, and hence their lack of political power and influence. Most of them would never even dream of raising their concerns about unfair treatment for fear of being removed from Canada or face other severe consequences that put their lives and their families at risk. Those who might dare to speak out would be barred from doing so by this discriminatory provision.

As the CHRA Review Panel says, human rights protection should be available to all individuals present in Canada, including those who are not lawfully present. The denial of equal access to the federal human rights system for Aboriginal Peoples and non-status immigrants constitutes a clear violation of Article 5.

Article 6

It is not sufficient to have a human rights complaint system. To ensure true protection for victims of discrimination, the system must also be effective. Unfortunately, the Canadian Human Rights Commission and the Tribunal are far from able to provide effective remedies for their intended constituents.

Findings of the Auditor General of Canada show serious concerns about the delay, dismissal, and backlog problems with the Commission. Some of these concerns were highlighted in the CHRA Review Panel report:

-of the approximately 6,550 complaints decided between 1988 and 1998, 67% were dismissed or not dealt with and 6% were sent to Tribunal

-the Commission took about two years on average to make a decision on a complaint (excluding equal pay complaints)

-much of the time delays were within the Commission's control, though others resulted from the inability of the Commission to enforce deadlines, such as for the respondent's responses to the complaint

-in 1997, almost one-half of the Commission's case-load was considered to be in "backlog" (where the investigation was going on more than nine months after the complaint was signed) and about the same number of cases was still under investigation one year after the complaint was signed

-between 1991 and 1995, the backlog ranged from 62% to 72% of the total number of complaints

-several times since 1989, the Commission received extra funds from Treasury Board to reduce the backlog

-at the time of the Auditor General's Report, the Commission was going to have to make yet another request for extra funding for this purpose

-the Tribunal took an average of one year to dispose of a complaint

-the decisions themselves took about five months after hearings were finished

-complaints that were sent to conciliation after investigation took 45 months before the Commission's final decision

-stakeholders told the Auditor General they were concerned about a conflict of interest; the investigations were too cursory; the delays were unfair; the Commission dismissed cases without reasons

-the Commission did not use its power to initiate complaints because it had been challenged by respondents when it had previously attempted to initiate complaints on the basis of an apprehension of bias; third parties usually file complaints

-the Auditor General estimated that since 1996, 18% of cases were settled, 11% in early resolution or in investigation and 7% in conciliation after investigation, adding an average of 11 months to the time for the investigation resulting in a 45 month period for the processing of complaints.

Community groups have also expressed similar concerns. In their submission to the CHRA Review Panel, Shelagh Day and Gwen Brodsky - two well known Canadian human rights advocates - sum up the issue as follows:

The extensive delays discourage people with legitimate discrimination claims from filing complaints, dishearten and disempower those who do, and often have the effect of denying human rights claimants the appropriate remedy. . . Delays have also resulted in some complaints being dismissed by courts on application by respondents.

As pointed out by Day and Brodsky, the concern regarding the high rejection rate is intensified by the fact that the only recourse available to a person whose complaint has been dismissed is to make an application in Federal Court for judicial review of the Commission's dismissal decision. Because of the 1981 decision of the Supreme Court of Canada in Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181, (1981), 2 C.H.R.R. D/468 (S.C.C.), a person who believes his/her human rights have been violated cannot go directly to court to seek a remedy.

The court's review process is not without its own limitations:

The Federal Court can review the Commission's decision to dismiss complaints for correctness on a question of law or jurisdiction, but principally these reviews consider only whether the Commission was procedurally fair in the manner in which it investigated and made its decision to dismiss. Most judicial review applications are unsuccessful. Even the successful ones only refer the case back to the Commission, not the Tribunal.

. . .The goal of the Commission inevitably becomes that of managing human rights law enforcement when the Commission lacks expert staff, lacks adequate resources, and does not enjoy the overt support of government for more ambitious and riskier challenges to the status quo of inequality.
Indeed, it is quite ironic that the report by the Canadian Government to the CERD Committee refers to the case of Pitawanakwat v. Canada (Secretary of State) (1992), 19 C.H.R.C. D/110 as an example of how well the human rights system - including the review system - is working. In reality, this case highlights the principle of "justice delayed is justice denied." The Tribunal, in its decision, blamed Mary Pitawanakwat for allowing herself to be a victim of discrimination. It took further legal action on the part of the complainant, namely, a judicial review to the Federal Court to correct that inexcusable error. Ms. Pitawanakwat passed away not long after the Court's decision was released.

In addition to the problems stated above, the Canadian Human Rights Commission does not handle or initiate systemic cases even though it has statutory power to do so. It is complaint driven and hence ineffective. The record of the Commission demonstrates its relative failure to achieve potential or broad systemic steps to change patterns of inequality.

The combined result of all of the above is a system which is in serious need of revamping. While the CHRA Review Panel report has been completed for almost two years, the Canadian Government has yet to respond to the Panel's 165 recommendations for reform.

Article 6 and the Head Tax Redress

Canada has a history of racist legislation that discriminated against immigrants of colour, including Chinese Canadians, but it refuses to acknowledge its history of racial discrimination or to redress the ongoing impact of this legislation. In the 1800s Canada wanted Chinese labourers to work to build the railroad across the country, but after completion of the railroad it enacted a racist “Head Tax” to limit immigration by Chinese immigrants. This Head Tax was initiated at the rate of but was raised to in 1903, the equivalent of two years’ wages. The Head Tax caused great financial and emotional hardship on Chinese Canadians. Most Chinese immigrants spent their lives in the equivalent of indentured servitude in order to pay off the loans they obtained to pay the Head Tax. It is estimated that the government raised approximately million from this racist tax (in 1923 Canadian dollars). The hardship experienced by Chinese Canadians increased with the implementation of the Chinese Exclusion Act in 1923, which was aimed at barring immigration of any Chinese person to Canada. The Exclusion Act meant that fathers in Canada were separated from their families in China for decades, until the Act was repealed in 1947. This separation was devastating to families. Many children grew up without knowing their parents.

The Chinese Canadian community has been advocating for redress for years through community organizing, demonstrations, lobbying and legal action, but the Canadian government has refused to negotiate a resolution to redress this history of discrimination and its contemporary impact. Most recently, a number of Head Tax payers and their widows and descendants have launched a class action suit against the federal government in order to obtain damages for the impact of the federal government’s discriminatory policies. Canada’s response has been to attempt to have the case dismissed, despite the fact that they have provided redress to other survivors of discrimination, including Japanese Canadians who were interned during World War II. As well, in its 11th report to the CERD Committee, the Canadian Government referred to the Japanese Canadian Redress as an example of its commitment to the "spirit of social justice". It reported that the Prime Minister of Canada announced in November, 1990, that the Government would "extend a formal apology to other Canadian ethnocultural communities whose members have been mistreated by past Canadian governments". To date, the Government of Canada has yet to extend any apology to Chinese Canadians. In fact, in December, 1994, the Secretary of State announced in the House of Commons that no redress would be given to Chinese and other ethno-racial groups seeking redress.

Canada’s refusal to redress the ongoing impact of the racist Head Tax and Exclusion Act constitutes a violation of its obligations under Articles 2 (eliminating racial discrimination) and 6 of ICERD, which requires that Canada provide “effective protection and remedies” against any act of racial discrimination. The right to seek “just and adequate reparation” guaranteed by Article 6 should be not simply a procedural guarantee, but one of substance by which the victims of discrimination have a real opportunity to obtain a real remedy for the impact of racial discrimination.

Article 7

In the context of human rights education, the cutbacks to the Canadian Human Rights Commission in the mid-1990s have gravely affected its ability to carry out its educational role.

Chapter II: Employment & Poverty

Introduction

In a 2000 report entitled “Unequal Access,” the Canadian Race Relations Foundation (CRRF) contends that Aboriginal and other racialized persons face enormous barriers to equality in employment with other Canadians. Some revealing statistics accompany this claim. This chapter employs these facts in exploring the remaining barriers to full, equitable employment and fair incomes for central racialized groups in Canada.

After a discussion of Canada’s Employment Equity Act, the next sections report on the recent relative progress of key marginalized groups in the labour market as to their employment rates, based on work force availability. It is important to keep in mind that these rates are based on information available about the public service only. While a useful indicator, the public service does not provide a comprehensive barometer. It is also important to recognize that these employment figures do not account for a greatly increasing number of term and casual appointments; they cannot be assumed to indicate long term or secure work. And as will be discussed, the situation in individual provinces and various sectors of the workforce is much less consistent as to the progress of employment equity. For this reason, an overall picture of the challenges that remain for particular marginalized groups is provided, as is a general discussion of some central issues.

Relevant Convention Provisions

Article 2

1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:

(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;

(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;

(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization;

Article 5

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

(e) Economic, social and cultural rights, in particular:

(i) The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration;

(ii) The right to form and join trade unions;

(v) The right to education and training;

Article 7

States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention.

Economic Racism

Article 2

Canada’s Employment Equity Act

While the Employment Equity Act has been effective in securing greater employment in some areas, Canada’s report on CERD does not contextualize these gains to provide a clearer picture of the quality of the employment increase. For instance, many people from racialized groups have yet to find employment that makes use of their training, and many are underemployed. Those from racialized groups are also underrepresented in the professional and managerial sector.

Canada’s Employment Equity Act is, by international standards, fairly comprehensive. It does include enforcement measures and has attained the status of legislation. However, this does not preclude serious limitations and tenuous problems for minorities. The Act applies only to larger corporations, federally regulated industries and governmental employers. It does not cover private or provincial organizations, among which the application of equity policies varies. A comprehensive study of employment equity across the provinces concludes:

We have discovered not only that the gap between employment equity policy and implementation is great, but that there is extensive and multi-layered variation among the provinces in this regard. Such variation occurs both in the formulation of employment equity policy, or in its absence, and in the governmental orientation concerning the policy options available and how they should be implemented. There is also a notable expression of what we refer to as systemic frustration among the supporters of employment equity. Though specific concerns vary widely, in no province could we identify a sense of confidence that employment equity policy was appropriately and securely implemented.

As will be seen in the report on Ontario, the last two consecutive provincial regimes have served to reverse ventures toward employment equity in Canada’s largest province. In fact, employment equity legislation was repealed by the Conservative government before it could be officially applied. In British Columbia, the province with the largest percentage of racially visible minorities, reports have recently shown that the income gap is widening, giving this area the largest discrepancy in Canada between rich and poor. Recent tax incentives in that province have also been shown to benefit the wealthy while providing little change for lower income groups. Racialized communities in the province of Quebec face the lowest employment rate, with almost half unemployed.

As the report cited above makes clear, the distinction between employment policy and employment legislation is a crucial one, particularly in terms of enforcement. Thus far, only the province of British Columbia has enforceable legislation; most have policy documents, which encourage the implementation of certain standards, to some degree. Only with legislation does employment equity stand as law. Quebec is the one province that extends its mandate beyond the public service. Newfoundland and Alberta have failed to produce any policies, although the issue has been more widely debated in the latter. With regard to pay equity, research has shown that policies are ineffective unless they are mandatory for employers and overseen by governments.

Employment equity programs may challenge employment patterns without significantly changing attitudes. The recent backlash against affirmative action demonstrates that such incentives are understood by many dominant group members as the special and undeserved privileging of racial minorities. This should suggest to policy-makers that these programs need to be accompanied by education that provides some historical context and analysis of their necessity. It is also important to note that recruitment programs for racialized people are geared toward original employment and do not monitor patterns of promotion.

During the 1990s, federal government incentives, such as the Special Measures Programs which provided specific forms of support for persons with disabilities, women, and those from racialized groups, were formed and have since been re-evaluated. One noted flaw in such programs has been their tendency to concentrate on the distinct characteristics of the marginalized groups under question, rather than on systemic ways in which to change attitudes and behaviors in the workforce broadly. The new Special Measures Initiatives Program, begun in 1993, attempted to integrate both the specific needs of minority groups and the need to change the workplace environment. Its more recent replacement policy, the Employment Equity Positive Measures Program of 1998, is expected to integrate policies and departments and to encourage cooperation among departments on equity measures.

In 1995, the new Employment Equity Act was written, to be implemented late in 1996. This includes a requirement that ministers report on the progress of their departments. However, to the date of the Bakan and Kobayashi report, only one department, Status of Women Canada, had met the guidelines in hiring members of the designated groups. It is crucial that NGOs and other outside organizations carry out analysis of this and other programs, particularly with regard to many of the qualitative issues indicated here.

Article 5

Racialized persons in the public service

People of colour, in 1998, represented 5.1 percent of the public service, compared to 10.4 percent of the work force. This has been the least amount of progress for all designated, marginalized groups. As Bakan and Kobayashi report:

This figure is explained only partially by the fact that because of immigration patterns, the proportion of visible minorities in Canadian society has increased significantly over the last decade, while that of the other designated groups has remained relatively constant. If current immigration trends continue, their proportion of the Canadian population will continue to rise, while their proportion of the work force will rise at a somewhat higher rate as the population ages and larger numbers enter the work force.

Persons from racialized communities are strongly underrepresented in the executive category, at only 2.8 percent, and overrepresented in the field of administrative support 5.3 percent. They are strongly overrepresented in the scientific and professional category (10.1 percent). However, a recent Human Rights tribunal found that Health Canada failed to promote persons from racial minority groups according to their qualifications.

Canadian-born racialized persons

Racialized groups in Canada generally have higher education levels than non-racialized groups, yet their employment and income levels trail well behind. While they make up 12% of the Canadian population, they are only 5.9% of government employees and 3% of executives. Blacks, South Asians and other people of colour generally have lower employment statuses than Canadians of English and French backgrounds, even when controlling for education level. About half of university graduates from racial minority communities find professional employment compared to two thirds of White graduates. Within this group, racialized persons earned approximately 000 less than White graduates.

An exception to this pattern lies in the field of health, including nursing and applied sciences, in which Canadian-born people of colour tend to earn significantly higher salaries than non-racialized groups. In all other fields, racialized minorities earned less.

The difference in employment status between White Canadians and Canadian-born people of colour appears to be small, however, many people of colour in high status positions are self-employed. Among those employed by others, only half of racialized persons held management positions, compared to two thirds of Whites. It must also be remembered that Canadian-born persons of colour tend to be better educated than Canadian-born Whites. Of men belonging to racialized groups, only 46% have pensions, compared to 57% of other male workers.

Among those with equivalent education, 38 per cent of Canadian-born Whites ranked in the top income quintile, compared to 29 per cent of Canadian-born people of colour.
In Toronto, over 50% of families in some racialized groups live below the official low income cut-off. Among White ethnic groups, the rate is less than 10%. The current poverty rate for racialized persons is around 38%, compared to 21% for Canadians overall.

Racialized Immigrants

Accreditation

Less than half of foreign-born racialized persons with a university education have high skill level jobs. While many get work, they are underemployed and their job satisfaction is low. With the exception of a few professional areas of specialization, even immigrants educated in Canada face lower employment rates than the Canadian-born population and tend to be concentrated in low-status jobs.

Accreditation is a particularly potent barrier for foreign-trained immigrants. Many strategies have been suggested to amend this problem, but they have been largely ignored. One overriding problem is that the system which attempts to define foreign accreditation standards remains incoherent. This is shaped by systemic racism which tends to devalue out-of-country training, particularly that from developing countries.

There are currently six formal credential assessment services, and a number of informal ones, many of which are used in gaining entry to post-secondary institutions. Only Alberta, Quebec and British Columbia provide assessment services, and they are very expensive and time-consuming. Applicants are also responsible for paying for translation services for their documents, which employers frequently demand.

Immigrants in a study of the Chinese in Canada reported that employers’ requirement for North American experience was a particular barrier, and one that is, of course, impossible to fulfill. Another problem is the often-time long delay in attaining documents, while, in the meantime, the skills of professionals lie dormant rather than being honed and adapted to new workplaces. In fact, it is estimated that the net loss to the Canadian economy of under-utilization of immigrant skills is anywhere from .5 billion to .4 billion.

The devaluing of outside credentials is especially frustrating given Canada’s stated preference for ‘above average’ immigrants, who are educated and experienced, and given that the majority of immigrants are better educated than Canadians. As an Ontario Council of Agencies Serving Immigrants (OCASI) report states, of recent immigrants:

They all find employment one way or the other but not in field of their own specialty and ironically not for the skills for which they qualified to be an immigrant to Canada in the first place. So in one stroke “we” have de-skilled those people who “we” chose as “suitable” immigrants for Canada while not resolving the issue of shortages of labour in those fields for which we chose them.

One might assume that, because the federal government is responsible for selecting immigrants on the basis of their professional qualifications, it might also be accountable for overseeing their settlement process, including their placement in appropriate employment. However, this process quickly becomes mired in bureaucratic red tape, as the federal government abdicates the task to provincial jurisdictions, which in turn refer new immigrants to their individual professional regulatory bodies. At this level, many professions require that applicants write licensing exams or enter long periods of retraining in the Canadian market before they are licensed. In this complex maze of jurisdictions, Shakir and McIsaac note:

Advocating generically for access to professions and trades means spreading yourself so thin across the jurisdiction chasm that you risk becoming vacuous. Advocating specifically within each profession and trade requires a high level of specialization and adroitness to juggle the different so-called jurisdictional “stakeholders” within.

They go on to discuss how the struggle to have accreditation considered seriously is undermined by media reports which take an ‘anecdotal’ approach, portraying only the odd, sad individual story, rather than attempting a useful analysis of the systemic problem. This also maintains the common notion that individual immigrants are solely responsible for their own adaptation to Canadian society, rather than the government being accountable to them for employment commensurate with the skills and experience for which they were selected in the first place. Shakir and McIsaac make many recommendations for amending this system, among them:

-the settlement sector that primarily deals with immigrant settlement issues must be seen as a legitimate player in the whole APT issue.

-settlement and employment issues must be seen as inextricably linked, thus, requiring positive coordination between Citizenship Immigration Canada (CIC) and Human Resources Development Ministry (HRDC).

-because immigrants settle in provincial jurisdictions, there must be a more focused dialogue between CIC, HRDC and the provincial government. . . there must be a meaningful dialogue between federal ministries, provincial government, relevant ministries and the regulatory bodies for the larger good.

-tax incentives [should be given] to employers to set up paid internships in order to provide Canadian experience and opportunity.

-the notion of “Canadian experience” [must be demystified] by providing standardized assessment tools across the board for regulatory bodies and employers to assess the skills and qualifications of immigrants.

-mechanisms [must be set up] for immigrants to have access to information on Canadian labour force requirements according to different professions/trades at the point of entry.

-co-op type training programs (which include on-the-job training) [must be] funded by federal, provincial and private funds in order to facilitate the entry of immigrants in to the Canadian labour force.

It is clear that there is tremendous need for a formal, fair and consistent policy on accreditation that is extended to all areas of the economy.

Other facts on immigrants

The wage gap between Canadian-born men and immigrant men from racialized groups is 16%. Among foreign-born immigrants, those who are racialized earn approximately 78 cents for every dollar earned by those who are White. Immigrant women have been shown to work longer hours for lower pay than Canadian-born women, and are more than twice as likely to be concentrated in administrative, clerical, sales and services jobs. Highly educated recent immigrant women are only about half as likely as Canadian-born women to hold professional employment.

Despite Canada’s establishment of a task force on the employment of visible minorities in the federal Public Service, their numbers are still small in light of an increasingly large percentage in urban centres. They account for only 1 in 17 of all positions in the Public Service, and 1 in 33 in management positions.

One in five non-racialized persons rate in the highest income quintile, compared to one in eight foreign-born minorities. According to Professor Michael Ornstein’s 2000 study of poverty in Toronto, Ghanaians experience the highest unemployment rate, at 45%. They are followed closely by Afghans, Ethiopians, and Somalis. Among these groups, Ghanaians also suffered the highest poverty rate, at 87%. Nearly 70% of Ethiopian families lived in poverty, as did over 62% of Somalis. Sri Lankans, Aboriginals, Jamaicans and Filipinos hover around a 50% poverty rate. In addition, Black families from the Caribbean had poverty rates up to four times higher than those of White, Northern European backgrounds. Families from Vietnam and Korea were about five times poorer than White Canadians.

Particularly disturbing in Ornstein’s findings is the fact that some groups who have inhabited the city for generations, such as Jamaicans and Vietnamese, and who speak fluent English, still endure the same low-wage jobs, run-down living environments and poverty levels as poor, recent refugees. It is estimated that 800 refugee claimants utilize Toronto’s shelter system at any given time.

Overall, it has been shown that the poverty rate for immigrants is increasing. In the early 1980s, the poverty rate of recent immigrants was under 20%; by 1990 it had risen to 35%, and in the 1996 census it had grown to 52%.

Article 5

Canada has a particular responsibility to consider the needs of undocumented and contingent workers, who often migrate from countries with little economic opportunity and fulfill needs for low-wage labour in the service and manufacturing sectors. Such workers lack protection in their workplaces and of their basic human rights, often due to an undocumented status that they cannot help. In addition, some Canadian industries relocate their manufacturing operations to low-income areas where labour and safety standards are unregulated.

On top of these concerns, the manufacturing sector in Canada is decreasing in size and there is a growing trend toward non-standard work, including part time shifts and casual hours, which does not offer benefits. Technological change also decreases the need for blue collar labour and creates a greater need for literacy in English and computer skills. These changing demands are hardly well matched by cuts to social and training programs for immigrants and refugees.

Aboriginals

According to the federal standards drawn in the Employment Equity Act, Aboriginal peoples are somewhat overrepresented in terms of their availability in the work force. They were employed at 2.7 percent versus their workforce availability of 1.7, as of 1998. However, as the Bakan and Kobayashi report notes:

…these statistics need to be understood in light of several observations. First, the federal public service is a very important source of employment for Aboriginal peoples; many would argue that if more effective steps were taken to recruit, promote and retain Aboriginal employees, the level of representation could, and should, be much higher than work force availability. Second, like the other designated groups, Aboriginal peoples are not equitably distributed within the public service; they are overrepresented in administrative support and operational positions, and underrepresented in executive positions. They are concentrated in particular departments, especially Indian and Northern Affairs, and in particular jobs, especially those in health services (Canada 1998a: 52-59). Finally, they are overwhelmingly concentrated geographically within the Northwest Territories, where they make up 23.1 percent of the public service (Canada 1998a: 60).

Aboriginal peoples in Canada face the highest overall unemployment rate of any group, at 25%. One in seventeen Aboriginal persons is in the top quintile of income compared to one in five non-racialized workers. Only 13 per cent of Aboriginals with the same education as Whites had earnings in the top quintile. It has been shown that many university educated Aboriginals still earn in the bottom quintile, at a rate of 38% compared to 15% for non-racialized groups. Even though the health field is one in which racialized minorities tend to earn more than White Canadians, here, too, Aboriginals’ earnings were lower, at 000 below non-racialized Canadians’ average.

It is estimated that 44% of Aboriginals living off reserves live in poverty. On some reserves, as many as 95% of Aboriginals are forced to rely on welfare. Over 61% of Aboriginal children under age 15 live in poverty. Not only are Aboriginal people much more likely to be poor than the average Canadian, they are also likely to be deeper in poverty.

Although the low income levels of Aboriginals are more fully explained by education levels than those of other groups, this too is a serious problem. Aboriginals’ lack of access to education presents a major barrier.

Women

Women have made relatively fast progress in increasing their employment rates. While the actual number of women in the public service has declined due to a decade of major downsizing, their overall proportional representation has increased from 46.1 percent in 1993 to 50.5 percent in 1998. Women are currently overrepresented, considering their workforce availability, by almost two percent. However, they remain overrepresented at the lower rungs of the management scale, and are overconcentrated in administrative support roles, demonstrating that representation is only a preliminary step toward full equality.

As is the case in all other facets of oppression, gender and race function closely together as determinants of women’s poverty, employment and income levels. The gap between racialized women’s situations and those of non-racialized men is, of course, very wide. The gap between racialized and non-racialized women’s employment positions is also substantial.

Women in general still earn only about 73 cents for every dollar earned by men. Aboriginal women earn approximately 9% less than White Canadian women.
Canadian born racialized women tend to earn slightly more than White women, possibly due to their overall higher levels of training, however, immigrant women from visible minority groups earn 7% less on average than Canadian-born women. This pattern, similar to differences among men, indicates that some of the most significant barriers to employment and competitive incomes lie in the inability of the Canadian system to accommodate those born outside of the country. (However, in almost every category, Aboriginal persons ranked even lower than foreign born immigrants.)

Other important issues for women’s employment include the availability of publicly supported childcare and parental leave. Women in Canada still perform the bulk of childcare duties and are more likely than men to care for their children at home. Difficulties in finding affordable childcare or supporting oneself while at home with young children have the greatest impact on poor and racialized women, and on women attempting to leave abusive relationships.

Persons with Disabilities

Persons with disabilities work in the public service at about 81% of their numeric availability. Here, a gender gap also exists, with men employed in somewhat greater numbers than women. However, men with disabilities, too, are overrepresented in lower status positions. Eight out of ten hirings of persons with disabilities occur in the administrative support category, as do the greatest number of promotions.

On the whole, employed persons with disabilities earn less than non-disabled persons. In 1990, 43% of people with disabilities earned less than 000 a year, versus 37% of persons without disabilities.

Other impediments to economic equality

The Canadian Race Relations Foundation concludes that despite some improvements through employment equity programs, the gaps in employment and earnings according to race remain very significant, and the issue of racism in the workplace must be seriously addressed. After detailed labour market analysis, the Foundation notes that, consistently, “the higher the pyramid, the less diverse and the whiter it becomes.”

It is important to keep in mind that, while numbers and statistics are often good indicators of patterns, more analysis is usually needed to achieve a better picture of the situation. For instance, in employment patterns, are the jobs in question full time, are they commensurate with employees’ experiences and qualifications, do they include security and benefits, and are members of marginalized groups being adequately promoted, or simply hired? Further, have workplace cultures shifted to include persons from minority groups as more than ‘token hirings’ to preserve a company’s image? Will policies become legislation and will they be more widely applied and enforced?

Article 5

Other significant issues arise for persons from marginalized groups when looking for employment. Language barriers are important obstacles for recent immigrants, many of whom report that training programs are insufficient, and do not educate them adequately to function within corporate cultures. Chinese women in one study reported that the process of searching for work in Canada was unfamiliar and intimidating; they had few skills to help them research jobs, prepare applications, write letters, or interview successfully. Accreditation standards for immigrants, too, need to be addressed, not only to benefit newcomers, but also to supply much-needed skills to particular sectors of the economy where worker shortages exist. There also exists, of course, outwardly expressed racist sentiment in the workplace, in the form of harassment or exclusion from workplace culture.

Recent cuts to social programs in many areas have not bypassed Canada’s employment insurance program. In 1995, a new federal transfer system to the provinces was established, under which monies for education, health and social assistance were all amalgamated into a singular Canada Health and Social Transfer (CHST) payment. The total of this amount was less than had been allotted formerly for the three areas. The new transfer system also allows the provinces more flexibility in how the monies are spent, thus they are not obligated to provide the same level of social assistance to those in need. A recent study found that standing gaps in service were exacerbated, and new ones created, under this system. The new policies failed to integrate the needs of refugees and immigrants, and their access to services was further limited as organizations designed to help them suffered under reduced resources. Some particular effects of the cuts have been as follows:

-In Ontario, a sponsored immigrant on welfare receives at least less per month than a Canadian-born person on welfare

-Since 1997, Ontario’s ‘workfare’ system requires that all employable welfare recipients must work for their benefits.

-Immigrant women’s groups and shelters in Ontario received 6% cuts in their budget at a time when immigrant numbers and needs are increasing. This effects services such as language training and cultural adaptation assistance.

-Some immigrants rely on welfare due to the breakdown in their sponsorship relationship, for a variety of reasons. Often, the sponsor cannot support them adequately or experiences particular hardships. Many sponsors themselves are struggling recent immigrants who are attempting to support their family members. In Quebec, when welfare needs increase, the sponsor now incurs a debt equal to the amount paid the new immigrant.

Immigrant women have been shown to be at particular risk for poverty in the early stages after their arrival, when their income levels are about half of those of immigrant men. Although their earnings have been shown to catch up with those of the average Canadian population over a number of years, this settlement stage is crucial, and makes them especially vulnerable as they rely on men’s economic support. This also means that women’s shelters and adaptation services are greatly needed. Another study reports that
some settlement service programs in Ontario have had their funding cut by 50%; others have been targets of changes whereby funding is given only for special projects, and some have been eliminated altogether.

In addition to welfare cuts, since 1996 employment insurance payments themselves have decreased, and more weeks of work are now required to qualify for this assistance. The benefits period is also shorter, forcing those most effected by unemployment to search earlier and harder.
Article 7

It is clear that people of colour in Canada face a wide variety of barriers when searching for work, making a living and supporting their families. Despite a notion that Canada is a ‘tolerant’ and welcoming country where overt forms of racism are unacceptable, there are many systemic ways in which racism operates under the guise of other issues, such as the consideration of credentials, exclusion in workplace networks, and more favourable treatment of people from the dominant group. Furthermore, the concept of ‘tolerance’ is rarely problematized as to its clearly condescending undertone. For to ‘tolerate’ others in no way establishes that they are one’s equals, but maintains a notion that racialized persons are fortunate when the superior dominant group decides to put up with them. Governments need to work much harder to see that people of colour and Aboriginals are not merely included or ‘permitted’ to function in the national community. Rather, they must be integrated as full social participants whose rights of equal opportunity are axiomatic.

Chapter III: Immigration, Refugee and Migrant

Introduction

Intolerance of refugees and immigrants, xenophobia and racism are intricately linked. In Canada, where open expression of racist ideas is generally not tolerated, hostility towards newcomers serves as an outlet for the expression of underlying racist sentiments.

Canada has gained international recognition for its liberal immigration and refugee policies, but as pointed out by the Canadian Council for Refugees (CCR), racism and discrimination are nonetheless manifested at the systemic level, through the functioning of government bodies and through refugee and immigration policies that have a differential impact on racialized groups.

The CCR's report to WCAR summarizes the historical background to discrimination in Canada's Immigration Policy as follows:

Canadian immigration history is marked by racism and discrimination. The first immigrants from Europe brought with them the seeds of the racism that would have such a devastating impact on the Aboriginal peoples of what is now Canada, an impact that continues to be felt to this day.

Almost from the time when the Canadian government began to control immigration to Canada until 1960, racist laws and practices restricted the immigration of certain groups.

The CCR report goes on to document some of the historical facts of racism towards immigrants and refugees, including

 the imposition of a head tax on all Chinese immigrants from 1885 to 1923, followed by the Chinese Exclusion Act in 1923 which barred all but a few Chinese from entering Canada until 1947, whereupon the entry of Chinese remained restricted under more general rules relating to persons of "Asiatic race";

 the imposition of a "continuous passage rule" in 1908 which had the effect of excluding from immigration people who could not make a direct journey to Canada, with the main target of this measure being prospective immigrants from India;

 the anti-Semitic immigration policy during the era when the Nazis were in power in Germany, with the result that Canada's record for accepting Jews fleeing the Holocaust is among the worst in the Western world. Canadian policy towards Jewish refugees was summarized in the words of one official: "None is too many";

 the 1911 Order in Council prohibiting "any immigrant belonging to the Negro race, which race is deemed unsuitable to the climate and requirements of Canada." While the Order was never proclaimed, the same effect was achieved through measures such as penalties imposed on railway companies that distributed transportation subsidies to blacks, and the hiring of agents to actively discourage black Americans from coming to Canada.

In short, Canada's historical immigration policies have been overtly racist. It was not until the introduction of the point system in the 1960s that race officially ceased to be a relevant factor in the selection of immigrants. However, there are aspects of current policies that are reminiscent of earlier forms of exclusion, and the enforcement of seemingly neutral immigration requirements continues to discriminate against certain racialized groups.

In this chapter, we will highlight some of the modern day racially discriminatory laws, practices and policies of Canada towards immigrants, refugees and migrants.

Relevant Convention Provisions

Article 2

(1) States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and to this end:

(a) Each State party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;
(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination whenever it takes

Article 4

States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of the Convention, inter alia:

(c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.

Article 5

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

(a)the right to equal treatment before the tribunals and all other organs administering justice;

(b)political rights, in particular the right to participate in elections-to vote and to stand for election - on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;

(e)Economic, social and cultural rights, in particular:
(iv) The right to public health, medical care, social security and social services

Concerns about Immigration and Racism

Article 2

When it comes to immigrant and refugee rights, Canada fails to comply with Article 2 of the Convention in a number of ways.

I. Policies with Differential Impact

ID Documents

There is a requirement that Convention Refugees produce "satisfactory identity documents" in order to be granted permanent residence. This requirement negatively affects certain groups of refugees:

 Refugees who come from countries where identity is not traditionally established through official documents (notably many African countries);

 Citizens of countries where there is no government authority that can issue the documents; and

 Groups who are less likely to possess such documents such as youth, women or people from rural areas

As a result, hundreds of refugees from Afghanistan and thousands of refugees from Somalia have been forced to wait years for permanent residence because there is no functioning government in their countries and such documents as the refugees do have are frequently discounted by immigration officials.

Alarm was raised by the UN Committee on Economic, Social and Cultural Rights in its 1998 report about Canada with regard to this issue. The Committee expressed its concerns about "the plight of thousands of ‘Convention refugees’ in Canada, who cannot be given permanent resident status for a number of reasons, including the lack of identity documents, and who cannot be reunited with their families for a period of five years."

Right of Landing Fee - The new Head Tax

As of February 1995, all adult immigrants coming to Canada must pay a "Right of Landing Fee" ("ROLF") in order to be granted permanent residence. Initially, the policy was applied to refugees as well; the imposition on refugees was repealed only after years of protest from the communities. The ROLF, or the new Head Tax as it is sometimes called, disproportionately affects immigrants from the South because of the differential income and living standards among the ‘have’ and ‘have-not’ nations. In addition to the processing fee, the new head tax creates a financial barrier for many prospective immigrants from the South who wish to migrate to Canada. A family of four, for instance, would have to pay ,150 in total fees just to be accepted, an amount that is equivalent to the annual salary of an accountant in El Salvador and three years wages for a nurse in Sri Lanka.

Imposition of visa requirements on nationals of some countries wanting to travel to Canada

Southern countries account for 81% of countries whose citizens require visas in order to enter Canada, while predominantly "white" countries represent only 19% of countries requiring visas.

Since the events of September 11, 2001, the restrictions have increased, with more countries from the developing world subjected to visa requirements.
Family reunification

Historically, family class immigrants made up a significant portion of the overall immigrant population in Canada. The 1978 Immigration Act made "family reunification" one of the core objectives of our immigration policy. From that time on, until about 10 years ago, the majority of the immigrants who came to Canada every year entered as family class immigrants. Since the early 1990s, when the current Government came into power, however, the percentage of family class immigrants began to drop. Last year, the percentage of family class immigrants dipped to less than 30%. Increasingly, our immigration selection policy is geared towards attracting the so-called ‘best and brightest’, including wealthy businesspeople and entrepreneurs who are perceived to be of greater economic benefit to Canada than are family class immigrants.

The overall changes in immigration patterns have included specific changes to the definition of "family class" in both the regulations and processing of such applications by overseas visa offices. In the first place, more stringent requirements are being imposed on those who wish to sponsor their families. In addition, "family class" immigration has become more and more narrowly defined. The Canadian Government's retreat from its commitment to "family reunification" is most evident in the new Immigration & Refugee Protection Act which came into effect on June 28, 2002. For instance, for the first time in our history, the law prohibits anyone who is receiving social assistance to act as a sponsor.

Traditionally, the family class concept under immigration law is limited to reflect the nuclear family model, including only one's spouse, dependent children and parents. It does not include members of the extended family network that is commonly embraced by many different cultures and societies, particularly by cultures of racialized communities.

Coincidentally, the movement away from family class immigrants happens at a time when shifts in the source countries of immigration to Canada are also occurring. Since the 1990s, the top source countries of Canada's immigration are found in Asia, Africa, the Caribbean, and Latin America, in contrast to the early times when most of our immigrants came from Great Britain and other European countries. These new immigrants are more likely to embrace an extended family structure than were the early pioneers. Yet, they are also faced with more barriers when they attempt to bring their families over to Canada.

To start, there is a requirement for a sponsor to present official documents (e.g., marriage certificates, adoption papers) in order to establish family ties. This requirement negatively affects people who come from societies where marriage and birth are not recorded through documents. The inability to produce documents can prohibit family reunification. In some cases, Immigration requires the sponsor and his/her family to undergo DNA testing in order to prove their relationship. Requests for DNA tests are disproportionately made of applicants from countries in Africa and Asia. The high costs involved in DNA testing, in effect, create barriers to family reunification for immigrants from these countries.

Practically speaking, Canadians who wish to bring their families from abroad must demonstrate that their loved ones fit into the definition of "family class members"; often they must also satisfy the visa officers processing their applications that the relationship in question is a "genuine" relationship.

"Who are family members" and "is their relationship a bona fide one"? On the surface, these are relatively straightforward questions with equally straightforward answers. In reality, however, what is considered a "family member" may defy one's common sense understanding of the term. Moreover, the process for assessing these applications is extremely complicated and exceedingly intrusive. With almost unchecked discretion, immigration officers are free to consider almost any factor in determining whether or not a particular relationship is "bona fide", i.e., whether it has been entered into for the purpose of immigration. They can ask the applicant any question or request any information to prove his/her relationship with the sponsor. Just as troubling is the fact that the lack of guidelines and/or accountability means that the determination process is often fraught with the prejudices of officers who most likely do not share the cultural, racial, social and/or economic background of the applicants. The result is a biased, intrusive and frustrating process for both the Canadian sponsor and his/her loved ones overseas.

Another problem is found in the way that immigration officials deal with cases of adoption. Canadians can sponsor their adopted children to enter Canada, so long as they meet all the requirements as a sponsor and can prove both that the adoption has not taken place for the purpose of immigration and that there exists a genuine parent-child relationship.

Every year, hundreds, if not thousands, of Canadians go abroad to adopt infant children from countries like China, Vietnam, and Romania. Most of these parents (who are most likely to be Caucasians) do not share the same cultural or racial background as their adopted child. Apart from going through the process to legally adopt these children, the Canadian parents must also bring applications to sponsor these children to Canada. Routinely, once the adoption is approved by the relevant agency, the immigration approval will follow suit.

The situation is drastically different, however, for Canadians who wish to adopt children who are already known - and in fact related - to them. This type of adoption is more common among Canadians of certain ethno-racial background (for example, Chinese and South Asians). Often they adopt the children of their close family members, e.g., their nieces and nephews, and then proceed to sponsor these children to enter Canada.

The latter type of adoption is subject to scrutiny that a white parent adopting a Chinese girl would never even dream of encountering. Partly this is a problem with the legal requirements, especially one that requires that the parent-child relationship be established at the time of adoption. Given that the adoptive parents and the adopted child were in fact related to each other, and given that the child is often still under the care of his/her own natural parents until the immigration application is approved, it is inherently contradictory to expect a "parent-child" relationship to exist before it has been given the chance to develop. At least one Federal Court decision has pointed out the inherent problem with this requirement and has adopted a forward-looking test in assessing the genuineness of the relationship in question.

But the problem does not end there. There is a double standard that Canada Immigration imposes between the two types of adoption as listed above - the inter-cultural adoption and inner-cultural adoption. The former is subject to a much more lenient assessment because of the presumption that these Caucasian Canadians are "genuine" about their desire to adopt a child, whereas the latter is put through a stringent examination as the application is presumed to have been made to assist the immigration of a relative.

Racial Profiling

While it is never admitted and rarely discussed, the Canadian immigration authority engages in racial profiling when implementing various laws and policies.

First of all, racial profiling is used in the deportation of immigrants. In 1994, during the robbery of a trendy restaurant in Toronto called Just Desserts, a white female patron was shot. The suspects involved in the shooting were four masked black men. The incident immediately hit the front pages of newspapers across the country. In the following months, numerous African Canadian men reported being stopped and harassed by police without just cause. Eventually, four men were arrested; one was an immigrant who had once received a deportation order from Canada, which had later been stayed. The fact that an immigrant was "implicated" in the Just Desserts crime was enough to send the public into a frenzy. In response, the Canadian Government introduced Bill C-44, the so-called "Just Desserts Bill" whose purpose was to make it easier to deport all immigrants who have committed a serious criminal offence. Ironically, the only accused who was later acquitted of all charges in this crime was the immigrant himself.

Under Bill C-44, a permanent resident may now be stripped of the right to appeal a removal order against him/her if the Minister of Immigration issues an opinion that the person is a "danger to the public." What is even more troubling, however, is the fact that this provision does not affect all permanent residents in an equal manner.

The African Canadian Legal Clinic (ACLC) of Toronto compiles a study of the substantive impacts of the implementation of this notorious provision. Citing statistics provided by Canada Immigration, the ACLC has argued that the "danger to the public" provision is invoked most often against members of racialized groups, including an overwhelmingly disproportionate number of persons of African descent with previous drug-related offenses. Based on the statistics, the ACLC finds that of the 297 persons removed on the “danger to the public” grounds in Ontario between 1995 and 1997, 116 have been deported to Jamaica. This constitutes 40% of the total removals from Ontario, and is more than five times greater than the number of deportees to Trinidad and Tobago, the next highest recipient of Ontario's “danger to the public” deportees. The ACLC argues that the dramatically high number of immigrants of colour, particularly immigrants of African descent, can be attributed to the fact that racism and the stereotypes of African Canadians "have informed immigration policies and practice throughout Canadian history."

Falconer and Ellis have similarly argued that this provision is a law "which primarily targets members of the Black Jamaican community." They state that "colour profiling" in the criminal as well as the immigration context is prevalent throughout North America, and the latest example of that is embodied in the enactment of Bill C-44.

With the new Immigration & Refugee Protection Act that came into effect on June 28, 2002, it is feared that more permanent residents will be deported under the increasingly punitive measures of the new Act. On the one hand, the new Act abolishes the use of danger to the public assessments and replaces them with the ostensibly objective standard of the two-year sentence; this could eliminate some of the potential for racist evaluations by immigration officers. On the other hand, there continues to be the problem of systemic racism in the justice system leading to longer sentences for racialized minorities and the fact that CIC has said that they will deal with deserving cases by not issuing removal orders, which leads right back to assessments made by individual officers whose biases and prejudices are not readily subject to any independent challenge.

The second example of profiling, based on stereotypes, is used in the systematic criminality checks on certain groups of refugee claimants and immigrants. For example, for a certain period in the summer of 1997, immigration officials systematically subjected all Roma claimants to the more detailed criminality checks generally reserved for individuals for whom there are reasons to suspect criminality. The practice was only stopped after it was exposed by the media.

Unfortunately, the use of racial profiling as a "security" measure is gaining more ground and unwarranted legitimacy since the September 11 event. Canadian citizens and permanent residents of Arab and middle-eastern descent are among those most targeted.

The third incident of racial profiling was the detention of close to 600 Chinese migrants who arrived at the West Coast of Canada during the summer of 1999. Arriving in four separate boats after an extremely arduous and dangerous journey, these Chinese "boat people," as they were called, were met with hostility from the residents of British Columbia. Incidentally, that province is known to have a history of anti-Asian sentiment and policy ever since the arrival of the first Chinese in the 1850s. It was British Columbia that imposed the first ever head tax on Chinese immigrants; a measure later adopted by the Canadian Government.

As the public intensified its call to send the Chinese back in their "leaky boats," the Government of Canada responded by detaining almost all of the migrants, many of whom were women and children, in various correctional or immigration detention facilities scattered all over the province of British Columbia. The ground for detention was the migrants' membership in a particular social group, namely, rural Chinese from the Fujian province. Many of these boat people remained in detention for over a year and some for more than two years. When they first arrived, none were informed of their legal rights and many were denied the right to make refugee claims. It was not until community organizations intervened that immigration authorities began to allow their claims to go forward. While some of the migrants were granted asylum, most have since been deported to China.

On the day the first massive deportation of the "boat people" was executed, every single immigration officer involved in the operation was given a golf shirt with the words "class of 90" printed on it, to commemorate the officers’ "successful" endeavor of deporting the 90 Chinese. The refugee advocates were outraged by such public display of racism towards the migrants.

II. Structural Issues with Differential Impact

Apart from the differential implementation of policies, another form of systemic discrimination occurs at the structural level within the Canadian immigration apparatus. This discrimination presents the following issues:

Distribution of visa posts

The distribution of Canadian visa posts around the world, and the allocation of resources of these offices, are biased against the countries in the South. For instance, there are 10 visa posts in Europe processing immigrant applicants from that continent. By contrast, in Africa where the population is much larger than Europe's, there are only 4 visa posts that serve the entire continent.

The unequal distribution, in effect, acts as a quota system when none exists on paper. Not only will fewer of their cases be processed, but immigrants from Asia and Africa will have to wait much longer for their applications to be completed, compared to those from Europe.

Sources of refugees

There has been a historical selection imbalance in favour of refugees from Europe. In 1998, 59% of government assisted refugees came from Europe, versus only 12% from Africa, although these two regions account for similar shares of the global refugee population.

In 1999, Canada responded swiftly and generously to the needs of Kosovar refugees, bringing to Canada about 7,000 refugees within a matter of weeks. By contrast, Canada failed to respond to Tutsi Congolese who were targeted for persecution. A group of these refugees, some of them with family in Canada, was evacuated ‘temporarily’ (for 6 months) to Benin. Canada failed to resettle any of them within the 6-month period.

Under-representation of Racialized Communities

As of mid 2000, representation of persons of colour within the staff of Citizenship & Immigration Canada (CIC) was at 8.15% (below a target of 9.8%). CIC also acknowledged that people of colour are disproportionately clustered at lower levels of officer groups. At the Immigration and Refugee Board, there is a higher proportion of people of colour. 22% of Board members and (as of March 31, 2000) 18.6% of public service employees are people of colour. This is the highest representation of people of colour reported among federal departments and agencies. However, among public service employees, they account for only 6.4% at the management level.

The Lack of Race Based Analysis

As part of the promise made by Canada at the 1995 World Conference on Women in Beijing, the Canadian Government must subject all of its laws and policies to a gender based analysis in order to detect and hopefully prevent any differential impact of such laws on women (and men). Despite repeated calls from the racialized communities, no move has been made by the Canadian Government to adopt a race-based a