Are provinces dropping the ball on human rights?

Many of the things upsetting Canadians belong to the provinces. We hear people can’t find a family doctor or have to wait too long for medical appointments; they can’t find an affordable home; their kid’s school has been stripped of librarians and nurses; their cities can’t deal with traffic, theft, and neglected local parks; and they experience back-logged courts. These are legitimate concerns. 

One framework to understand this is that eye-glazing Canadian chestnut, the constitutional division of powers. In our Constitution Act, Section 91 details federal responsibilities, and Section 92 provincial ones. These were written down in 1867, although it seems they were etched in stone, given Canada’s formula to amend the Constitution is one of the most torturous in the world.  

Section 92 gives provinces authority for health care, education, municipal institutions, and provincial courts. It also gives them broad authority to levy taxes to pay for things, akin to federal taxing authority. 

When someone can’t get access to timely and appropriate health care, their provincial government is obligated to act. When they can’t get a provincial court date and efficient justice process, their province has failed them. When they can’t get an affordable place to live, their province has to act. 

So when people complain about health care and schools, they should focus their concerns on the government in charge: the province. But provinces like to shift the blame. In health care, for example, they say the federal government should give them money to fix things, which the feds have given in to for decades without it actually fixing things. Premiers sluff off responsibility by blaming others and citing conflicting interests. This framework is definitely not working for getting things done. 

Perhaps a better framework for looking at these failures in delivering critical public goods would be human rights. Canada’s international human rights commitments, agreed to with the explicit support of the provinces, bind the national and all subnational governments. Those commitments require them to make continual progress toward realizing everyone’s right to health, education, justice, housing, safety and security, and a range of other matters. 

Do provincial governments have to perform miracles on their residents’ behalf? No, they simply have to do their job. An essential job of government is to perform a duty of care, and a duty to protect. This is a primary role for government, in fact it is a basic reason people agree to let a group of officials have the powers to form a government, protect them from harm, and make their lives better. 

What we often get from our provincial governments is political performance, a cabaret of shiny objects, distractions, and diversions. What we need is not more politics but better governance, but we won’t get it without effective administration and proper accountability.  

At both the federal and municipal level in Canada, we have some accountability mechanisms to tell us if those governments are fulfilling the human rights obligations they have to Canadians. At the federal level, as Maytree’s just released report, In search of political will, points out, those accountability measures tend to be thinner than they should, but at least there are some that allow analysis. Encouragingly, many municipalities are moving on this front, with the right to housing being a prime example. 

But at the provincial level there are few meaningful mechanisms in place, and in some places any vestiges have been stripped away. Quebec is one of the few willing even to recognize its human rights responsibilities in government policy, writing that “The implementation of international human rights treaties is first and foremost a matter of domestic law, responsibility for which lies mainly with the provincial governments.” 

At the other end of the spectrum, Alberta erroneously claims it is “not a party” to international mechanisms and therefore has no obligations of accountability.  

As the provinces serially fail in supporting rights to health care, justice, or education, there are no measures to monitor their performance and contribute to holding them accountable. 

It is an easy thing to be tired of a political leader, to avoid constitutional debate, or to sluff off our international human rights commitments. Good governance is not an easy thing. A strong human rights framework, accepted by all levels of government, gives us transparency on whether every person is being supported effectively by their government. Without it, we’ll get more of the same: provincial government failure in their duty of care and duty to protect. After all, our defects in health care delivery or housing have been decades in the making. 

The provinces have primary responsibility for upholding our human rights, even if many have their heads in the sand. They must adopt appropriate mechanisms of transparency and accountability to make sure they are developing plans and providing sufficient resources to do their job properly.