Canadian Human Research Articles

Confronting our failures: Tensions in remedying systemic discrimination in Canada

This article examines the complexities of providing remedies for systemic discrimination in light of evolving understandings of equality and justice. Despite constitutional and statutory protections affirming the right to live free from discrimination, there remains a significant gap between recognizing systemic discrimination and implementing effective remedies. The 2021 case of Canada (Attorney General) v. First Nations Child and Family Caring Society of Canada serves as a focal point to highlight the shortcomings of the current remedial framework, which often prioritizes corrective over transformative justice, reflecting a formal rather than substantive approach to equality. In this case, the Canadian Human Rights Tribunal found that Canada’s inequitable funding of First Nations child welfare services was discriminatory on the grounds of race and national or ethnic origin. It ordered Canada to compensate every child impacted, while simultaneously imposing systemic remedies such as reforming federal funding policies. By exploring the Tribunal’s decision to uphold both individual and systemic remedies, the paper argues for a more integrated approach that moves beyond the dichotomy of individual versus systemic discrimination. It advocates for co-designed remedies informed by the perspectives of affected communities, calling for a shift in how systemic discrimination is addressed within Canada’s legal framework.

Tracing settler state responsibility for structural harm: Canadian Human Rights Tribunal case on First Nations child welfare

ABSTRACT This article discusses ideas of causation and responsibility for long-term, structural harm perpetuated through settler colonial institutions. Examining the case of a human rights complaint over discrimination of First Nation children in Canada’s child welfare system, the article looks at challenges of accommodating such complex harms in the framework of legal liability emphasizing immediate causation and impact. In 2016, the Canadian Human Rights Tribunal ruled that the federal government’s funding policy of child welfare services on First Nation reserves leads to disproportionate removals of children from their homes, and in 2019 it ordered the government to financially compensate children and caregivers impacted. According to the government's defense no direct connection could be proved between the funding policy and the removals, and harm resulting from the removals could only be assessed individually. The article traces how the decisions challenge these arguments by extending the scope of the harm at stake from individual removals to historical and ongoing formation of circumstances that make them happen. Setting the case in the historical context of intergenerational harm caused to First Nation kin and community relations by colonial policies, I suggest, the decisions challenge discourses that locate responsibility for such harms in the past.

Passports, Prisons, and Every Space Between

In 2016 long-standing activism culminated in the implementation of Bill C-16, which added “gender and gender expression” to the protected classes of the Canadian Human Rights Act. Despite a commitment to consistency across federal policy, wide discrepancies occurred between the changes to the passport and those to the prison. On the one hand, Citizenship Canada announced that “people who do not identify as female (‘F’) or male (‘M’)” could change their passport sex to be an X. On the other hand, the Correctional Service of Canada (CSC) begrudgingly introduced Interim Policy Bulletin 584, which provides accommodation based “on gender identity or expression” within the binary system. Through a comparative analysis, this article queries the enactment of nonbinary recognition between two foundational sites of Canadian federal control: a site of mobility (the passport) and a site of immobility through mass incarceration (the prison). Arguing against expanding prisons or the creation of nonbinary correctional institutions, this article traces the racial geographies that X is both embedded within and enacts, exposing the violence that ushers forth new forms of trans citizenship reliant on anti-Blackness, captivity, and fungibility. Building from these case studies, this article mobilizes the state deployment of gendered expression and determination to nuance theories of gender self-determination. Specifically, this article considers how the theoretical application of the term may dissimulate distinctions in (in)violability, vulnerability, and capacity between and within Blackness and transness.

Something in the air

This paper considers the issue of environmental racism as it relates to Indigenous and Black communities in Canada. Although the climate crisis affects us all, certain communities have felt the effects of environmental degradation more acutely and for a longer period. Environmental policy or practice that disproportionately disadvantages a racial group is an example of environmental racism. The article examines different policy responses to environmental racism in a Canadian context. The paper looks at proposed avenues for addressing environmental racism through the Charter of Rights and Freedoms, Private Members Bills, Senate Bills or the new Federal Housing Advocate position associated with the Canadian Human Rights Commission. It also examines a number of grassroots initiatives taking action against environmental racism. The article argues that having the right to a healthy environment encoded in the Charter is the best option for policy reform and that grassroots organizations working in coalitions continue to make meaningful social change as the policy battle continues. 
 
 How it fits theme:
 The political power of the Canadian government has important implications for all citizens, but that power is not exerted equally against all sectors of society. There is implicit power in policy and practice that has lived consequences for those living in communities that experience systemic inequalities in healthcare, employment, and environment. However, these systemic barriers do not render individuals powerless. Grassroots movements are the fundamental origin of all civil rights victories experienced thus far, and will continue to have an integral role in changing the balance of power for generations to come. The example of environmental racism in Canada is a good place to examine the role of state power in racialized communities. At the same time, the individuals fighting against environmental racism through policy and social movements simultaneously are an inspiring example of resistance in praxis.

Movement Lawyering and theCaring SocietyLitigation

AbstractIn 2016, the Canadian Human Rights Tribunal issued a landmark ruling in First Nations Child and Family Caring Society of Canada v. Canada finding that the government of Canada was racially and ethnically discriminating against First Nations children and their families in its funding and delivery of child welfare services to them. This ruling did not result from an isolated legal case; it was the result of litigation that was part of a broader social campaign with active supporters from all over the world. The litigation was driven by, and supported, a dynamic movement for sovereignty for First Nations Peoples around child welfare. This article examines the Caring Society case through the lens of movement lawyering—using the law to bring about transformative social change.Section 2 examines movement lawyering as an approach to lawyering. Movement lawyering involves a range of practices, advocacy and mobilizing that seek to dismantle architectures of subordination. Section 3 provides an overview of the Caring Society litigation and the social campaign within which the case was litigated. The I am a Witness campaign, a dynamic education and grassroots social campaign that engaged Indigenous and non-Indigenous children and sought to make the litigation accessible to the public, is examined in detail. Section 4 analyses Caring Society as a study of movement lawyering. It examines how three elements of movement lawyering; integrated advocacy; accountability to social movements; and willingness to address the root causes of structural oppression were at play in the litigation and related campaigns.In conclusion, the authors contend that Caring Society and the I am a Witness campaign constitute a successful example of movement lawyering as they properly recognize litigation, and the role of lawyers, as one piece of the mosaic of efforts needed to advance transformative social change.

Not Logic, but Experience: Teaching Canadian Human Rights Law

ABSTRACT Teaching Canadian human rights law demands more than simply instructing law students on caselaw precedents, jurisprudential principles, and legislative developments, as important as learning about this legal framework is. It also requires the imparting of a human rights imagination to students. This involves a focus on the social environment that ultimately generates and shapes anti-discrimination laws, such as disparate living and working conditions, demonstrations and civil disobedience, new arguments about the meanings of equality and discrimination, and understanding the role of social science research. Human rights legal decisions, when written with empathy and lucidity, can become effective teaching tools not only in law classes but also in social science courses on human rights. Learning to understand and interpret the place of human rights through the leading rulings of courts and tribunals can offer instructive insights into the strengths, weaknesses, and potential of our contemporary approach toward protecting and enlarging human rights in Canada.

Corporate social responsibility and public diplomacy as formulas to reduce hate speech on social media in the fake news era

PurposeAnalyse the presence of hate speech in society, placing special emphasis on social media. In this sense, the authors strive to build a formula to moderate this type of content, in which platforms and public institutions cooperate, from the fields of corporate social responsibility and public diplomacy, respectively.Design/methodology/approachTo this aim, it is important to focus efforts on the creation of counter-narratives; the establishment of content moderation guidelines, which are not necessarily imposed by unilateral legislation; the promotion of suitable scenarios for the involvement of civil society; transparency on the part of social media companies; and supranational cooperation that is as transnational as possible. To exemplify the implementation of initiatives against hate speech, two cases are analysed that are paradigmatic for assuming two effective approaches to the formula indicated by the authors.FindingsThe authors analyse, in the case of the European Union, its “Code of conduct to counteract illegal online hate speech”, which included the involvement of different social media companies. And in the case of Canada, the authors discuss the implementation of the bill to include a definition of hate speech and the establishment of specific sanctions for this in the Canadian Human Rights Act and the Canadian Penal Code.Originality/valueThe case of the European Union was a way of seeking consensus with social media companies without legislation, while the case of Canada involved greater legislative and penalisation. Two ways of seeking the same goal: curbing hate speech.

Experiences and Impacts of Harassment and Discrimination Among Women in Cardiac Medicine and Surgery: A Single-Center Qualitative Study

BackgroundGender- and sex-based harassment and discrimination are consistently reported by about 50% of women physicians, and the prevalence may be even greater among women in cardiology. An exploration of these experiences and their impacts on women in healthcare is necessary to design interventions, create supports, and facilitate empathy, support, and allyship among leadership. MethodsTo understand and describe the experiences of harassment and discrimination among women working in cardiac sciences, to inform the design of interventions and supports, we performed one-on-one, semi-structured interviews with women in the Department of Cardiac Sciences in a single institute. Interviews were coded independently in parallel using thematic analysis and reconciled by trained qualitative researchers. Experiences were categorized as harassment using the Canadian Human Rights Act. Codes were grouped into themes by iterative discussion. ResultsThere were 15 participants, including trainees, physicians in a variety of cardiac subdisciplines, and nurse practitioners. All participants had experienced sex- or gender-based discrimination at work, though the impact and perception of these experiences varied. Whereas some participants felt that these experiences had little influence on their careers or personal lives, others changed practice specialties or locations due to harassment. Several participants had been sexually assaulted at work. Interviews revealed modifiable barriers to reporting harassment. ConclusionsThis qualitative dataset enriches the prevalence data on sex- and gender-based harassment among women working in cardiology by describing the impacts and perceptions of this harassment. Organizations should address commonly described barriers to reporting harassment, including addressing retaliation, and create systems-level supports for those affected by harassment.

Understanding the Policy Landscape Surrounding Medical Assistance in Dying in Canada's Federal Prison System.

Medical assistance in dying (MAiD) has been legal in Canada since 2016, and the implementation of MAiD for people who are incarcerated has raised ethical and procedural concerns. In this article, we review the current Correctional Service Canada guideline on MAiD alongside a joint report by the Office of the Correctional Investigator (OCI) and the Canadian Human Rights Commission (CHRC) on aging and dying in prison. We echo concerns raised by the OCI and the CHRC about the limits of adequate end-of-life care currently provided to those in custody and offer our analysis of the procedural guideline for MAiD in prison, which we argue to be inadequate in support for patient-centered care and equality in access to health care.

Sustaining Cultural Genocide—A Look at Indigenous Children in Non-Indigenous Placement and the Place of Judicial Decision Making—A Canadian Example

The Truth and Reconciliation Commission has called upon Canada to engage in a process of reconciliation with the Indigenous peoples of Canada. Child Welfare is a specific focus of their Calls to Action. In this article, we look at the methods in which discontinuing colonization means challenging legal precedents as well as the types of evidence presented. A prime example is the ongoing deference to the Supreme Court of Canada decision in Racine v Woods which imposes Euro-centric understandings of attachment theory, which is further entrenched through the neurobiological view of raising children. There are competing forces observed in the Ontario decision on the Sixties Scoop, Brown v Canada, which has detailed the harm inflicted when colonial focused assimilation is at the heart of child welfare practice. The carillon of change is also heard in a series of decisions from the Canadian Human Rights Tribunal in response to complaints from the First Nations Child and Family Caring Society of Canada and the Assembly of First Nations regarding systemic bias in child welfare services for First Nations children living on reserves. Canadian federal legislation Bill C-92, “An Act respecting First Nations, Inuit and Métis children, youth and families”, brings in other possible avenues of change. We offer thoughts on manners decolonization might be approached while emphasizing that there is no pan-Indigenous solution. This article has implications for other former colonial countries and their child protection systems.

Institute for the defense of human rights (ombudsman) in Canada

The article examines the institution for the protection of human rights (ombudsman) operating in Canada, represented by a variety of bodies, officials, and the specifics of their powers. Particular attention is paid to the Canadian Human Rights Commission — a human rights state body within whose jurisdiction is exercised control over public administration and private companies at the federal level on discrimination issues, as well as the Canadian Human Rights Tribunal, which, according to the author, performs a quasi-judicial role in exercising jurisdictional control. The author comes to the conclusion about the formation of a two-stage mechanism that ensures more effective protection of human rights.The article thoroughly examines the legal and institutional features of the status and powers of human rights commissions and ombudsmen operating at the provincial and territorial levels. The study allowed the author to identify the following features of the institution for the protection of human rights (ombudsman) in Canada: the prevailing decentralization, which is expressed in the autonomy of the provinces and the Federation in the establishment and consolidation of the status of officials and bodies carrying out human rights activities; institutional plurality, characterized by a variety of structures (bodies, officials), the scope of their powers aimed at protecting human rights; development of specialization of state human rights institutions in various areas (discrimination, labor relations, housing and others); formation of a “local” model of the ombudsman in non-state corporations and institutions. The author proposes to use the experience of the Canadian Human Rights Tribunal when developing the concept of a human rights court in Russia.

Bearing Witness: Creating the Conditions of Justice for First Nations Children

AbstractIn 2016, the Canadian Human Rights Tribunal found that Canada’s management of child welfare discriminates against First Nations children. The First Nations Child and Family Caring Society, one of the complainants, maintains a web-based campaign called “I Am A Witness,” providing details on the hearings and legal materials and asking visitors to act towards ending discrimination against First Nations children. What does it mean to bear witness to such discrimination? The concept of “witnessing” circulates through Indigenous oral traditions, communication and media theories, and the common law. This article explores the I Am A Witness campaign, arguing that as it evokes various theories of witnessing and builds public awareness of legal processes, it shifts spaces of and perspectives on legality beyond Western categories, creating a public that is enabled to bear witness to, and respond to, ongoing injustices against Indigenous peoples.

Canada's history of failing to provide medical care for Indigenous children.

In December 2007, the House of Commons unanimously supported Jordan's Principle, a commitment that all First Nations children would receive the health care products, social services, and supports, and education they need, in memory of Jordan River Anderson. However, the process of applying for Jordan's Principle was convoluted and not transparent, leaving several cases not being responded to. The Canadian Human Rights Tribunal found the definition and implementation of Jordan's Principle to be racist and discriminatory in 2016, ordering the Canadian government to make immediate changes. Failing to make changes to Jordan's Principle, the Canadian government was found to be noncompliant with the Canadian Human Rights Tribunal orders in 2018. This article provides one case example of Jordan's Principle that was not responded to, details on the current status of Jordan's Principle, and information on the recent implementation of the Act respecting First Nations, Inuit and Métis children, youth and families.

Insights from a Jordan’s Principle Child First Initiative in Alberta

In 2016 Canada was ordered to implement Jordan’s Principle by the Canadian Human Rights Tribunal. In response to the order Canada created the Child First Initiative to provide federal funding for provincial and territorial organizations supporting First Nation’s children’s health, education, and social service needs, including service coordination. In the shifting national landscape of Child First Initiative funding, there is a lack of evidence on how pediatric healthcare services are addressing the serious health and healthcare inequities experienced by many First Nations children. This paper describes the implementation of a Child First Initiative by the First Nations Health Consortium in the Alberta region, and research findings that provide insights into the complexity and challenges of advancing First Nations children’s health and health equity within the current federal Child First Initiative mandate in this province. This paper highlights the need for transformative pediatric healthcare approaches that expand beyond an individual and demand-driven system and orient towards practices and policies that are socially-responsive. Also, that First Nations leaders and Jordan’s Principle initiatives play a leading role in the design and delivery of all pediatric healthcare services with First Nation communities, families and children across Canada.

L’égalité réelle et la mise en œuvre intégrale du principe de Jordan

Cet article porte sur les problèmes et les retards dans la mise à œuvre du principe de Jordan au sein du gouvernement du Canada. Premièrement, l’article passe en survol les allégations de discrimination mises de l’avant par Assemblée des Premières Nations et la Société de soutien à l’enfance et aux familles des Premières Nations dans leur plainte de droits de la personne contre le Canada en ce qui a trait aux conflits de compétence et du manque de coordination entre les différents paliers et ministères de gouvernements et leur impact néfaste sur les enfants des Premières Nations. Deuxièmement, il résume la décision initiale du Tribunal canadien des droits de la personne [TCDP], rendue en janvier 2016, concernant le principe de Jordan. En troisième lieu, l’article examine les problèmes et les retards liés à la mise en œuvre de la décision du TCDP. Quatrièmement, il aborde en détail l’ordonnance de mai 2017 du TCDP obligeant le Canada de prendre des mesures concrètes pour se conformer à sa décision initiale. Dans la cinquième partie, l’article avance la thèse selon laquelle, qu’afin de véritablement assurer l’égalité réelle dans la société canadienne, le Canada doit être plus proactif dans l’identification et la remédiation de ses pratiques discriminatoires. En l’occurrence, la mise en œuvre du « Plan l’Ourson Spirit » au sein du gouvernement canadien offre une voie prometteuse vers la fin des iniquités dans la prestation de services publics pour les enfants des Premières Nations.

Caregivers, Gender, and the Law: An Analysis of Family Responsibility Discrimination Case Outcomes

As workers struggle to combine work and family responsibilities, discrimination against workers based on their status as caregivers is on the rise. Although both women and men feel the pinch, caregiver discrimination is particularly damaging for women, because care is intricately tied to gendered norms and expectations. In this article, we analyze caregiver discrimination cases resolved by Canadian Human Rights Tribunals from 1985 through 2016, to explore how work and caregiving clash. We identify issues involved in disputes and the ways gendered expectations about work–life facilitation inform disputes and outcomes. We find that although women are more likely to bring claims and obtain favorable outcomes, the legal interpretation of claims is highly gendered. Women bring claims involving both their presumed status as caregivers and the practical challenges of seeking accommodations for care, whereas men’s claims are largely accommodation based. In adjudicating cases, Tribunals are more likely to see women than men as lacking credibility when making their claims, questioning their competence and legitimacy. In contrast, men struggle to demonstrate the legal basis of work–family interference, failing to convey how seriously work interferes with family responsibilities.

GC-MS Analysis of Phthalates and Di-(2-thylhexyl) Adipate in Canadian Human Milk for Exposure Assessment of Infant Population.

Although more information has become available on the occurrence of phthalates and di(2-ethylhexyl) adipate (DEHA) in foods including cow's milk, information on their presence in human milk, the important and recommended sole diet for infants up to six months of age, is very limited, especially for DEHA. To develop a GC-MS method for simultaneous analysis of DEHA and phthalates in human milk samples and generate occurrence data for exposure assessment. Human milk samples were extracted with acetonitrile followed by dispersive solid-phase extraction and GC-MS analysis. Among the 305 human milk samples collected from the Canadian Maternal-Infant Research on Environmental Chemicals Study, some phthalates (DHxP, BBzP, and DOP) were not detected in any of the samples, while DEHA and the other phthalates (DMP, DEP, DBP, DiBP, and DEHP) were detected at low frequencies with levels from 30.4-237 ng/g in up to 31 of the 305 human milk samples. In general, DEHA and phthalates were detected at low frequencies and low levels in the 305 human milk samples. A GC-MS method based on dispersive solid phase extraction was developed for analysis of DEHA and eight phthalates in 305 human milk samples for exposure assessment.

THE FINAL WORD: After the Residential School Apology: Why All Canadians Should Care about a Racial Equality Case Before the Canadian Human Rights Commission

cblackst@fncfcs.com There is no way around it – if you are a First Nations child on reserve in Canada you simply get less government funding for statutory child welfare services than other children even though there are more First Nations children in child welfare care now than at the height of residential school operations. The federal government has failed to fully address the inequalities even after leading experts, including the Auditor General of Canada, have called for action. The Department of Indian Affairs (INAC) has publicly acknowledged that it’s outdated funding formula results in growing numbers of First Nations children being removed from their families and placed in child welfare care. The Auditor General recently found that the federal government’s new child welfare funding approach also fails to ensure equity.

Dr. Peter Bryce (1853-1932): whistleblower on residential schools.

In September of 2019, the Canadian Human Rights Tribunal (CHRT) reached a landmark decision when it found that 40 000 to 80 000 First Nations children were deprived of public services and wrongfully removed from their families between 2006 and 2017. Accordingly, the CHRT found that the federal

“All Arabs Are Liars”: Arab and Muslim Stereotypes in Canadian Human Rights Law

“All Arabs Are Liars”: Arab and Muslim Stereotypes in Canadian Human Rights Law