Submission to UN CERD Committee

Joint Submission to the 93rd Session of the Committee for the Convention on the Elimination of All Forms of Racial Discrimination (CERD) – Review of Canada August 2017

By: Colour of Poverty – Colour of Change, Chinese and Southeast Asian Legal Clinic, Ontario Council of Agencies Serving Immigrants and South Asian Legal Clinic of Ontario. (CSALC, OCASI and SALCO are founding Steering Committee members of Colour of Poverty - Colour of Change)

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ISSUE 1 - COLLECTION OF DISAGGREGATED DATA & ACTION PLAN AGAINST RACISM
Relevant Facts:

• Governmental failure to collect disaggregated data with respect to ethno-racial background is an overarching issue across the different areas where racial discrimination is manifest, which prevents the necessary tracking of racial inequities and disparities, and impairs assessment of the impacts of relevant laws, policies, programs and practices on historically disadvantaged communities.
• Indigenous Peoples and peoples of colour (POC) - are at least two to six times more likely to live in poverty as compared with the general population. Communities of African descent and Indigenous Peoples in particular are over-represented in virtually every category that signifies disadvantage. It is critical that race-based data is disaggregated further to allow identification of the experiences of all ethno-racially diverse peoples and measurement of the unique impacts of policy interventions.

Relevant Laws and Policies:

• Canada has restored a mandatory long-form census, but complementary race-based administrative data sets are lacking across all orders of government – Municipal, Provincial and Federal.
• The National Poverty Reduction Strategy in development identifies certain vulnerable communities at higher risk of poverty, but at present does not mention “peoples of colour” among them.
• In Ontario, as is true across all other provinces, there is no systematic collection of race-based data.
• The Ontario Anti-Racism Directorate created in February 2016 plans to collect disaggregated data in three areas of concern - child welfare, justice, and education, but is specifically exempting health.
• To deliver on its WCAR Program of Action related commitments, among others the Federal Government must meaningfully engage with civil society and consult with Indigenous Peoples, peoples of colour and non-governmental organizations working to advance racial justice and racial equality in Canada in its development of a renewed Canada Action Plan Against Racism (CAPAR).

Relevant Articles:2(1)(c)
RECOMMENDATIONS:

• Collect and track disaggregated socio-demographic data with respect to ethno-racial background across all Departments, Ministries, Divisions & relevant institutions across all orders of government.
• Use disaggregated socio-demographic data to develop strategies for addressing systemic racism.
• Eliminate the use of “immigration status” or “visible minority” or the like as substitute categories for “peoples of colour”, as such terms shift the focus away from race, racism & racialized disadvantage.
• Encourage consistent and coherent socio-demographic data collection that enables analysis of the intersecting effects of ethno-racial background with gender identity, socio-economic status, sexual orientation, age, immigration status, (dis)ability and family status.
• Renew the Federal Government’s commitments under the WCAR Program of Action and work with civil society to create and implement an enhanced, comprehensive and more robust CAPAR.

ISSUE 2 - RACIALIZATION OF POVERTY AND LABOUR MARKET DISCRIMINATION
Relevant Facts on Poverty:

• 18.7% families of colour in Canada are living in poverty, compared to 6% of non-racialized families.
• 53.4% of Indigenous women 65 and older in Canada are in low-income status, compared to 30.9% non-Indigenous women in the same age category.
• Canada child poverty rates are 51% for Indigenous children (and 60% for Indigenous children living on reserve); 32% for children of immigrants; and 22% for children of colour, but only 13% for white non-immigrant children.

Relevant Facts on Labour Market Discrimination and the Racial Wage Gap:

• Women of colour in Canada make 53.4% as much as non-racialized men, and 84.7% as much as non-racialized women. Men of colour make 73.6% as much as non-racialized men.
• Employers’ use of police record checks in the hiring process entrenches the exclusion of over-policed Indigenous groups, Black and other communities of colour in Canada.
• Racialized people and immigrants are over-represented in part-time and precarious employment.
• Black employees in Ontario Public Service report pervasive racial aggression and discrimination. Complaints about racism have not been addressed and are met with reprisals from superiors.

Relevant Laws and Policies:

• National Poverty Reduction Strategy currently makes little to no mention of communities of colour.
• In Ontario’s Poverty Reduction Strategy analysis and focus of action POC experiences are absent.
• No employment equity legislation exists for provincially-regulated employers in Ontario or elsewhere
• Ontario’s Changing Workplaces Review (2017) stops short of making recommendations that would address unfair & inequitable ethno-racial labour market outcomes or the critical need for provincial employment equity regimes - despite receiving these specific recommendations. The resulting legislation tabled in June 2017 stops short of addressing unjust racialized labour market disparities.

Relevant Articles:5(e)(i), 5(e)(iii)
RECOMMENDATIONS:
To the Government of Canada:

• Centre the problem of the racialization of poverty in the national Poverty Reduction Strategy.
• Reinstate and enforce mandatory compliance with employment equity for all federal contractors.

To the Government of Ontario:

• Introduce and enforce provincial employment equity legislation (and all other provinces, territories).
• Collect and analyze data on the racialization of poverty through the Anti-Racism Directorate.
• Centre the problem of the racialization of poverty – for both Indigenous Peoples and peoples of colour – at a minimum in the Anti-Racism Directorate and the Ontario Poverty Reduction Strategy.
• Remove barriers to the recognition of international training and education by institutions, regulatory bodies and employers.
• Amend the Ontario Human Rights Code to protect individuals from discrimination on the basis of police records of convictions or non-conviction, and facilitate pardons or record suspensions.
• Ensure effective enforcement of all relevant employment standards and labour relations provisions.
• Implement an Employee Wage Protection Fund to compensate victims of wage theft (which disproportionately affects Indigenous workers and workers of colour).

ISSUE 3 - IMMIGRATION DETENTION
Relevant Facts:

• 6,251 people were held in immigration detention in 2016/2017, including 151 minors. In 2015/2016, 6,596 people, including 181 minors, were detained.
• 94.2% were detained on grounds other than allegedly posing a security threat.
• Disaggregated quantitative or socio-demographic data on detainees is lacking. Anecdotes suggest long-term detainees are disproportionately racialized for several different reasons.
• There is significant regional variance in release rates across Canada by individual immigration detention board members, and by detainees’ region or country of origin.

Relevant Laws and Policies:

• Canada does not impose a maximum time limit for immigration detention, detainees can be held indefinitely.
• Nearly one-third of immigration detainees are held in provincial jails where due to jurisdictional difficulties, they fall into a “legal black hole” between federal and provincial jurisdiction. Since 2000, at least 15 people have died in immigration detention.
• There are numerous systemic procedural fairness issues reported in detention review hearings for detainees, including government submissions being taken as fact, disclosure not being provided to detainees, and a de facto ‘reverse onus’ for the detainee to justify release rather than on the government to justify continued detention.
• The Designated Foreign National’s regime, implemented by the 2012 Protecting Canada’s Immigration System Act, mandates compulsory detention for migrants deemed “irregular arrivals,” including children older than 16.
• The absence of well-developed alternatives to immigration detention (such as community-based non-custodial programs) means that children must either be detained with their parents or be separated from them.
• De facto detained children do not have their own detention review hearings and adjudicators explicitly declined to consider the best interests of Canadian children in the detention reviews of their parents. While a recent development in the courts permits consideration of the best interests of Canadian children on their parents’ detention reviews, the overall focus of the detention review analysis remains on the detained parent(s).

Relevant Articles: 5(a), 5(d)(i)

RECOMMENDATIONS:

• Impose a fair and equitable time limit on immigration detention.
• Make detention truly a last resort and develop meaningful community-based non-custodial alternatives to detention;
• Cease holding immigration detainees in provincial jails.
• Ensure the best interests of all children in detention are a primary consideration in detention-related decisions.
• Collect and publish socio-demographic quantitative data – disaggregated at a minimum by ethno-racial background and country of origin – with respect to all aspects of immigration detention.

ISSUE 4 - FAMILY CLASS IMMIGRATION AND SPOUSAL SPONSORSHIP
Relevant Laws and Policies:

• Government imposes an annual cap of 10,000 – and significantly stricter minimum annual income requirements – for sponsorship of parents and grandparents.  The majority of family class immigrants come from countries across the Global South, while their sponsors, who are racialized, are more likely to live in poverty and are thus less likely to meet the income requirements.
• The government cancelled the two-year co-habitation requirement for spousal sponsorships, which had created pressure on women to remain in abusive domestic situations. But it continues to use discriminatory culturally-biased criteria for detecting so-called fraudulent marriages which penalizes immigrant women of colour while perpetuating racial discrimination.

Relevant Articles: 5(d)(iv), 5(e)
RECOMMENDATIONS:

• Repeal the application cap and minimum income requirement for sponsorship of parents and grandparents.
• Adopt a racial equity and gender equity lens to evaluate the impacts of immigration laws, policies, programs and practices – including spousal sponsorship – on racialized communities.

ISSUE 5 - MIGRANT WORKERS
Relevant Facts:

• The number of temporary migrant workers in Canada has more than quadrupled since 2000. As of 2014, there were 567,977 temporary status workers in the country.
• Migrant workers in low-wage streams of temporary migration – disproportionately workers of colour from the Global South – are exceptionally susceptible to exploitation and abuse.

Relevant Laws and Policies:

• Workers in the Seasonal Agricultural Workers Program (SAWP) are denied the opportunity to settle permanently in Canada, are bound to particular employers with exclusively tied work permits, and often find themselves working under exploitative conditions.
• Workers in the Caregiver Program – primarily women from the Global South – are prone to exploitation and ill-treatment by employers. Tied work permits make it difficult for caregivers to complain about rights violations by employers. While the elimination of the “live-in” requirement has reduced their vulnerability, the parallel removal of a guaranteed route to permanent residence has increased their precariousness.
• While migrant workers contribute to social entitlement programs in Canada, their temporary status largely precludes them from accessing these programs. 

Relevant Articles: 5(b), 5(e)(i), 5(e)(ii), 5(e)(iv)
RECOMMENDATIONS:

• Provide permanent residence for all Migrant Workers upon arrival and equal access to social entitlement programs and other commonly or mutually shared benefits.
• Grant right to collective bargaining to workers in all such vulnerable and precarious work;
• Strengthen enforcement mechanisms for employment standards violations, including granting workers the right to remain in Canada in the event of an injury to obtain medical treatment, and full access to eligible Workers Compensation benefits;
• Adopt International Convention on Protection of All Migrant Workers and Members of their Families.

Click here for the full submission.

Click here for joint media release.