Review of Canada's Accession to the United Nations Optional Protocol to the Convention on the Rights of Persons with Disabilities

Submitted by the Council of Canadians with Disabilities
March 16, 2017

Background:

The Council of Canadians with Disabilities (CCD) has been an active Civil Society proponent of the CRPD since 2002 with the beginning of the negotiations that led to the Convention.  In the fifteen years since then we have consistently voiced our view that the CRPD, and its Optional Protocol (OP), are vital instruments for the protection and advancement of the human rights of persons with disabilities here in Canada and around the world.

As such, we welcome this invitation to share our views in greater detail.  In light of the importance that the CCD attaches to the OP we have taken the time to consult with a number of international law experts on the matter along with our own membership, and what follows is a synthesis of their views and our own, in a process that very much mirror’s the drafting of the treaty all those years ago. 

1. The obligations contained in the Optional Protocol:

Countries ratifying the Optional Protocol to the CRPD accept the possibility that national citizens submit individual complaints to the CRPD Committee if the Convention is violated and once all legal remedies have been exhausted at national level. They also agree on the principle that the Committee can probe into human rights violations.

The Optional Protocol to the CRPD also confers jurisdiction on the CRPD Committee to launch a procedure of inquiry, which allows the Committee to initiate an investigation into alleged egregious or systematic human rights violations under the CRPD. A State Party could trigger a procedure of inquiry if the Committee were to receive “reliable information relating to grave or systematic violations” of convention obligations. The Optional Protocol to the CPRD also provides an avenue for putting before the Committee particularly egregious instances of grave or systemic violations of CRPD rights through the commission of inquiry mechanism.  This too impacts the advocacy avenues open to individuals and organizations in bringing to light especially egregious instances of abuse that are grave or systemic.

2. Impacts for you as an individual, your organization, and the individuals your organization represents if Canada were to join the Optional Protocol:

The Optional Protocol to the CRPD importantly affords persons with disabilities, and their representative organizations, new avenues for raising individual cases of CRPD violations through the communications procedure.  It provides, for instance, issues important to persons with disabilities who face infringements upon their fundamental human rights and freedoms to be put on the table for focused discussion through the communications procedure. The placement of individual cases on the agenda of the CRPD Committee for discussion by the Committee has the potential to deepen the understanding of the legal requirements of the CRPD.

Moreover, the positive impact that ratification of the Optional Protocol of the CRPD by Canada could have on organizations of persons with disabilities is in opening up an additional avenue around which disability advocates and other human rights advocates for child rights, women’s rights or economic, social and cultural rights advocates could work together.

In the situation of government (particularly provincial/ territorial) failure to ensure that CRPD rights are protected, and having exhausted whatever domestic remedies that might be available via the Courts, the availability of an international complaint procedure is extremely important for the individual/group whose rights have been violated.

The simple fact that such a procedure is available would serve to deter governments at all levels from considering policy positions that may land them before the Treaty Body.  Unfortunately, in Canada there are many examples of Provincial appellate courts dismissing disability-based claims either under the Canadian Charter of Rights and Freedoms or under the relevant Humans Rights Act.  From there, the SCC routinely dismisses leave to appeal applications, thereby opening the door to filing a complaint under the OP.  Very clearly, having this option is of enormous value to rights claimants.

3. The advantages or disadvantages to Canada associated with joining the Optional Protocol

By ratifying the OP, Canada will underscore membership in a group of constitutional democracies that willingly embrace human rights and democratic accountability. While it is important not to overstate the impact of ratification of optional protocols to human rights conventions such as the OP to the CRPD, at the same time, the evidence suggests that ratification of such agreements does have positive consequences.

First, by empowering persons with disabilities and their allies to raise human rights violations directly before the CRPD Committee through quasi-judicial communications procedures or the procedure of inquiry, governments are forced to take their human rights seriously.  This added pressure is significant even in countries such as Canada that have a comparatively strong human rights framework. 

Second, the right of individuals to complain to the CRPD Committee is likely to contribute to a clearer consensus on the meaning of the obligations contained in the CRPD.  By considering the concrete circumstances of individual complainants who have exhausted domestic remedies, the OP will assist the CRPD Committee to clarify   the CRPD standards over time and to ensure the appropriate application of CRPD obligations. This, in turn, provides a body of jurisprudence that can serve as guidance to States on implementation.

Third, in domestic human rights politics, ratification of any international human rights agreement mobilizes citizens to see their human rights and advocacy roles in new ways, helps to focus advocacy strategies and confer a legitimacy on advocacy demand, and creates new possibilities for domestic coalitions. This is especially important for the disability community, long marginalized and pushed to the periphery of human rights activism. Ratification of the Optional Protocol to the CRPD by Canada will put DPOs on an equal footing with other civil society actors in Canada who are more g experienced in engaging in all aspects of UN treaty body procedures.

Fourth, what little evidence we have on mechanisms conferring an individual right of complaints at the international level suggests that such standing before a body of experts helps improve rights outcomes.   For example, Lovelace v. Canada (1997) illustrates how an Optional Protocol can protect individual human rights. Having exhausted all Canadian remedies, Ms. Lovelace successfully petitioned the UN Human Rights Committee to end discrimination against indigenous women who lost their treaty status when they married non-indigenous partners.

A final rationale for ratification of the CRPD OP is that it provides impetus for other countries to do so.  Evidence suggests that States tend to ratify optional protocols when their neighbouring peers do so.  Modest peer pressure will in time encourage others to ratify and broaden the access of individuals to an authoritative interpretation of their economic, social and cultural rights. Accordingly, given Canada’s overall support for the CRPD, this provides a further rational for the importance of our ratification of the OP.

4. Whether and how have Canadians with disabilities or the organizations that represent them been using the complaint mechanisms under the other human rights treaties to which Canada is a party:
Disabled peoples’ organizations in Canada and disability rights allies generally can engage in the communications procedures of other human rights conventions to which Canada has indicated their consent.  This, however, falls well short of conferring jurisdiction on the CRPD Committee, a body composed of disability rights experts, experts in the CRPD, and the body specifically responsible for oversight of the only disability-specific human rights convention in the UN human rights system.  As such, restricting access to bodies other than the CRPD Committee falls well short of providing full access to the mechanisms most equipped to address serious violations of CRPD obligations against persons with disabilities.  Other treaty bodies have not demonstrated the expertise on the application of non-CRPD standards to persons with disabilities.  While in theory other human rights treaty bodies with individual complaint mechanisms may offer avenues for raising disability-related violations, this is not at all a substitute for ratification of the CRPD Optional Protocol.

5.  Any other comments that you would like to provide:

For the reasons offered above, we believe that Canada’s Ratification of the OP to the CRPD represents an important step in recognizing the human rights of persons with disabilities not only in Canada, but globally, as part of the international human rights agenda. 

Ratification would signal full support for all available tools at the disposal of the CRPD Committee, provide an additional avenue for disability rights advocates to engage with the CRPD Committee subject to the parameters outlined in the Optional Protocol and provide additional leverage when Canada, through its diplomacy, presses other countries to fully engage in the international human rights system.

In closing we thank you once again for the opportunity to share our views on this matter.