Under the Ontario Human Rights Code (Code), the Ontario Human Rights Commission (OHRC) has the mandate to make policies that provide guidance on human rights obligations under the Code and to make recommendations that promote human rights during situations of tension or conflict.
This policy statement provides guidance to all levels of government on the principles that underlie a human rights-based approach to managing the COVID-19 pandemic. It offers high-level guidance that applies across a range of potential policy, legal, regulatory, public health and emergency-related responses to the COVID-19 pandemic.
This policy statement is meant to be read in conjunction with the OHRC’s Actions consistent with a human rights-based approach to managing the COVID-19 pandemic, which sets out proposed government actions, drawn from a range of human rights organizations, that are broadly consistent with a human rights-based approach to managing the COVID-19 pandemic and the principles contained in this policy statement
Background and context
As the COVID-19 pandemic has swept across the globe, it has touched all 7.8 billion of us in some way. The COVID-19 pandemic has led the Ontario government, as well as governments across Canada and around the world, to respond in innovative and often unprecedented ways. Extensive public health campaigns, restrictions on freedom of movement and social interaction, and targeted economic stimulus packages are just a few of these steps.
However, measures to protect public health and individuals’ right to health can have a negative impact on another person’s right to health or on other human rights, such as freedom of movement and assembly, and rights to education, employment and non-discrimination.
It is essential that responses to COVID-19 be aligned with Canada’s international human rights treaties, domestic human rights laws and the UN Declaration on the Rights of Indigenous Peoples. The laws governing declarations of emergency in Ontario and at the federal level expressly recognize the importance of complying with existing human rights protections, even in emergency circumstances.
The pandemic also offers a generational opportunity to more effectively realize rights protected in the International Covenant on Economic, Social and Cultural Rights. Many groups are particularly vulnerable to negative impacts from COVID-19 precisely because their economic, social and cultural rights, right to equality and Indigenous rights have not been effectively protected or realized in Ontario and Canada over many decades.
Implementing programs and policies that align with this policy statement will help protect public health and human rights during the COVID-19 pandemic. Entrenching governments’ responses to the pandemic in a human rights-based approach offers a unique opportunity to benefit everyone, including vulnerable groups, during the pandemic and for generations to come.
Human rights-impacts of the COVID-19 pandemic on vulnerable groups
The most vulnerable groups in Canadian society are disproportionately negatively affected by the COVID-19 pandemic. People with multiple, intersecting identities may be particularly vulnerable (for example, Indigenous women and girls, older East Asian people, etc.). Throughout this policy statement, the OHRC refers to “vulnerable groups” to include:
- First Nations, Métis and Inuit peoples and communities, including urban, rural, remote and Northern communities
- East Asian and other racialized communities
- Workers in precarious employment and foreign-temporary workers
- People experiencing poverty, living in shelters, who are street-involved or at risk of homelessness
- Women and children facing domestic violence and/or child abuse
- Single parents
- People with disabilities, mental health needs and/or addictions
- LGBTQ2+ people
- Older persons
- People living alone or in government-run institutions
The human rights impacts of COVID-19 on vulnerable groups include:
- Higher risk of contracting COVID-19 due to social conditions
- Hateful acts, racism, discrimination and/or harassment
- Loss of employment leading to loss of household income and increased poverty
- Loss of housing
- Disruption of education
- Family violence and threats to safety and well-being
- Separation from caregivers
- Potential involvement of child welfare agencies
- Negative impacts on the treatment or management of pre-existing disabilities, mental health needs and/or addictions
- Restricted access to medical or other support services
- Potential discriminatory enforcement of emergency or public health-related measures
- Risk of forcible return (refoulement) for refugees who are deported or denied entry to Canada
- Social exclusion.
Without a deliberate human rights-based approach to managing COVID-19, including independent oversight, the pandemic will further exacerbate existing inequalities for vulnerable groups. Consistent with the Truth and Reconciliation Commission’s Final Report, governments must also acknowledge that Indigenous communities are among the most vulnerable groups largely due to the pre-existing and ongoing impacts of colonialism and racism.
Principles for a human rights-based approach to managing the COVID-19 pandemic
Approach preventing and treating COVID-19 as a human rights obligation
- Recognize that the COVID-19 pandemic engages the right to health and life under Canada’s international and domestic human rights laws.
- Recognize that all levels of government have a legal obligation to take preventative steps to stop the spread of COVID-19 and treat people who have the virus, without discrimination. This may require governments to take additional steps necessary to prevent and treat COVID-19 among vulnerable groups.
- Recognize that human rights laws require mitigating potential impacts on rights that are interdependent with the rights to health and life, including the rights to food, housing, work, education, equality, privacy, access to information, freedom from cruel, inhuman or degrading treatment or punishment, and the freedoms of association, expression, assembly and movement.
- Recognize that Canadian and international human rights laws prohibit discriminatory action, including harassment, against any persons or communities because of an association with the COVID-19, perceived or otherwise.
Respect the rights of First Nations, Métis and Inuit (Indigenous) peoples
- Adopt respectful, nation-to-nation engagements and partnerships with diverse Indigenous governments, communities, organizations and knowledge-keepers to ensure that the COVID-19 pandemic in addressed in a culturally-appropriate and safe manner.
- Recognize that the impact of COVID-19 will be exacerbated by the ongoing negative impact of colonialism on Indigenous communities and will have a unique, intersectional impact on Indigenous women and children, people with disabilities, people with addictions and older persons.
- Take extra steps and provide funding to protect Indigenous peoples’ health and human rights, including providing funding for:
- Adequate housing
- Culturally safe health care and mental health care
- Safe water and sanitation
- Services to support women and children, people with disabilities, people with addictions and older persons
- Any other services that are essential to addressing COVID-19.
- Provide funding consistent with Jordan’s principle where there is potential for jurisdictional disputes.
- Obtain the “free, prior and informed consent” of affected Indigenous peoples before adopting and implementing legislative, administrative, policy, budgetary or regulatory measures in response to COVID-19 that may impact them, consistent with the UN Declaration on the Rights of Indigenous Peoples.
- Respect Indigenous peoples’ right to self-government and allow Indigenous peoples to continue to govern themselves during the COVID-19 pandemic. This includes respecting Indigenous communities’ authority to restrict entry to their communities as a measure to prevent the spread of COVID-19 to their residents.
- In consultation and cooperation with Indigenous peoples, take effective measures to ensure that Indigenous peoples that are divided by national or international borders are able to maintain and develop contacts, relations and cooperation, consistent with the UN Declaration on the Rights of Indigenous Peoples.
Set strict limits on measures that infringe rights
- Ensure that any public health or emergency-measures that are deemed necessary to prevent the spread of COVID-19 and that restrict the exercise of rights, are time-bound and subject to regular reviews.
- Recognize that the Charter of Rights and Freedoms and Canada’s domestic and international human rights obligations require that any measures that restrict the exercise of rights must be demonstrably justified as necessary, legitimate and proportionate.
- Recognize that any restrictive measures that deprive persons of their right to liberty must be carried out in accordance with the law and respect for fundamental human rights. This includes but is not limited to measures related to:
- Individuals in immigration detention
- People detained in mental health institutions
- Youth in custody
- Children in care
- Older persons in long-term care homes
- Foreign-temporary workers who are required to reside on the premises of their employer.
- Ensure that rights-based, legal safeguards govern the appropriate use and handling of personal health information.
Protect vulnerable groups
- Anticipate, assess and address the disproportionate impact of COVID-19 and related restrictions on vulnerable groups that already disproportionately experience human rights violations.
- Make sure vulnerable groups have equitable access to health care and other measures to address COVID-19, including financial and other assistance.
- Make decisions with input from vulnerable groups and the most affected communities.
- Take steps to mitigate gendered impacts and ensure that responses to COVID-19 do not perpetuate gender inequity.
- Ensure that public health and emergency measures consider accessibility and other needs of people with disabilities who face heightened susceptibility to contracting COVID-19 and may face extra challenges to obtaining services and supplies, and accessing food and other basic needs because of restrictive measures.
- Safeguard and address the needs of persons with drug and alcohol addictions who are already more vulnerable to diseases and serious health consequences if infected with COVID-19, including adopting a public health approach to drug and alcohol addiction (i.e. ensuring access to safe consumption sites, placing a moratorium on arrests and prosecution of drug-related offences, etc.).
- Ensure that any law enforcement of public health or emergency measures does not disproportionately target or criminalize Indigenous peoples, racialized communities, people who are precariously housed or who cannot self-isolate, or people with mental health disabilities and/or addictions.
Respond to racism, ageism, ableism and other forms of discrimination
- Ensure that steps taken in response to COVID-19 are based on evidence, and deliberately challenge, reject and dispel stereotypes.
- Anticipate and take into account the potential for certain communities to experience increased racism, ageism and ableism as a result of the government’s response to the COVID-19 pandemic.
- In collaboration and cooperation with vulnerable groups, take all necessary steps to proactively protect individuals and communities from hate, racism, ageism, ableism and discrimination propagated by private individuals.
- Monitor and report on any trends in hate and discrimination related to the COVID-19 pandemic and pursue appropriate sanctions, including criminal prosecution where appropriate.
Strengthen human rights accountability and oversight
- Consult with human rights institutions and experts, Indigenous leaders and knowledge-keepers, vulnerable groups, as well as persons and communities affected by COVID-19, when making decisions, taking actions and allocating resources.
- Institute formal advisory roles for Indigenous knowledge-keepers and representatives of human rights commissions within governmental COVID-19 task forces, special committees and working groups.
- Take a deliberate and comprehensive approach to independent human rights accountability and oversight, coordinated across jurisdictions, that ensures violations are anticipated, prevented and mitigated from the outset.
- Collect health and other human rights data regarding the response to the COVID-19 pandemic, disaggregated by the grounds of Indigenous ancestry, race, ethnic origin, place of origin, citizenship status, age, disability, sexual orientation, gender identity, social condition, etc.
- Regularly monitor and report publicly on the human rights impacts, outcomes and inequalities related to the COVID-19 pandemic and its management.
SOURCE: Ontario Human Rights Commission