Time for Canada to Shelve the Excuses

The Canadian Human Rights Tribunal, in its latest decision on remedy in the First Nations Family and Child Caring Society case (CHRR Doc. 18-3021), rejects a series of arguments made by the Attorney General of Canada (“Canada”) that would have the effect of gutting the Tribunal's capacity to deal with discrimination or provide a remedy for it. It is impossible to read this decision without asking: why does Canada want to do this? why try, in litigation, to deconstruct the powers of the institution Canada established to protect the human rights of the most disadvantaged people?


Fortunately, the Canadian Human Rights Tribunal repudiates these arguments clearly, but also, understandably, with some palpable irritation. This case has been before the Tribunal since 2010, and Canada has made these arguments repeatedly. Most recently, the Tribunal is dealing with allegations from the complainants of non-compliance with its remedial rulings, and motions for immediate relief. But Canada is still making these arguments, even though they were rejected by the Tribunal when it decided on the merits of the case (83 C.H.R.R. D/207), and the Government of Canada decided not to appeal that decision.


So, what are these arguments?


First, Canada contends that because of the separation of powers between different branches of government, the Tribunal should leave the precise method of remedying the discrimination to the administrative branch of government. In particular, Canada says, the Tribunal should not make decisions that require the government to spend money.


But, as the Tribunal replies, when it is making remedial orders, the Tribunal is not usurping the power of other branches of government; it is using the remedial powers in its own statute to address past discriminatory practices and prevent future ones. Any order made by a Tribunal, especially in systemic cases, will have financial implications. To deny the power to the Tribunal to make such an order would render it incapable of doing its duty under the Canadian Human Rights Act.

Canada must accept, the Tribunal says, that liability was found and remedies flow from that. That means funds must be provided to comply with the Tribunal's decision. Despite the fact that the Tribunal decision is legally binding, Canada keeps signaling that the Tribunal has no power and human rights violations will only be remedied when and if Canada finds money in its budget. In bold letters, the Tribunal says “this case … deals with the mass removal of children...from their families and communities. There is urgency to act …”


Secondly, Canada argues that it needs to consult with all First Nations communities before it can implement the Tribunal's remedial orders, as it cannot make unilateral decisions. The Tribunal agrees that consultation is necessary for long term reform of on-reserve child welfare programs. But it finds that this does not prevent Canada from providing immediate relief from the discrimination that results from its own policies and practices. This is an important ruling from the Tribunal. Consultation is an important right of Indigenous peoples, but it must not be used as a means of obstructing and delaying the implementation of rights, rather than enhancing or furthering them.


Thirdly, Canada blames the provinces. Again, the Tribunal agrees that Canada has to work with the provinces. But, it says, “Canada simply cannot hide behind the provinces' responsibilities to shield itself from its own …” 


This is a remarkable scolding for the Tribunal to deliver, and shameful that it has to deliver it. These arguments are shoddy and embarrassing, and they should be shelved permanently.

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