View Point

Commentary on new developments in human rights law published in the Human Rights Digest newsletter.

On November 1, the Government of British Columbia tabled legislation that will create a new Human Rights Commissioner, restoring for British Columbians an institution that was wiped out in 2002 by the Campbell Liberals. For 16 years, British Columbia has been the only province in Canada with no human rights commission.

The elimination of the B.C. Human Rights Commission in 2002 was the second time in B.C.'s history that a human rights commission was eliminated. In 1984, the Social Credit government dismissed the Human Rights Commission, fired the staff and closed the regional offices.

In the face of this volatile history, the Government of British Columbia has taken an important and unprecedented step: there will be one Human Rights Commissioner and the Commissioner will be an Officer of the Legislature, with all the related protections for independence that entails. This will make the B.C. Commissioner unique in Canada, the only one that is, in fact, institutionally independent of government.

The fact that B.C. has stepped out on the issue of independence will improve the climate for all human rights commissions. Independence is a key issue for human rights institutions whose job is to hold governments, as well as private actors, accountable for human rights compliance.

The B.C. structure will become similar to that of Ontario. B.C. will retain its direct access, stand-alone adjudicatory body, the B.C. Human Rights Tribunal. But B.C. will restore to British Columbians an essential institution — this time in the form of an independent Officer of the Legislature — with a mandate to promote and protect human rights by providing education; developing guidelines and policies to assist and inform employers, landlords and services providers about how to comply with the Code; examining the human rights implications of policies, programs or legislation; making recommendations regarding compliance with human rights; and undertaking studies, research or inquiries that could assist British Columbians to deal with broader human rights issues that affect whole groups or communities.

With a clear mandate to address systemic discrimination, the B.C. Commissioner has been given two significant new powers: the power to initiate public inquiries and the power to promote compliance with international human rights obligations.

The public inquiry powers permit the Commissioner to inquire into a matter, when doing so would "promote or protect" human rights. When an inquiry is initiated, the Commissioner can require attendance of witnesses and production of information, make a report with recommendations, and require a response regarding steps taken to implement the recommendations.  Using similar powers, the Ontario Human Rights Commission launched an inquiry into racial profiling and racial discrimination by the Toronto Police Service in 2017.

A unique power given to the B.C. Commissioner is the authority to promote compliance with international human rights obligations. This is a mandate that, for many years, community advocates have wanted human rights commissions to have. Since provincial and municipal governments are bound by the international human rights treaties that Canada has ratified, including the Convention on the Elimination of Discrimination against Women, the Convention on the Elimination of Racial Discrimination, and the Covenant on Economic, Social and Cultural Rights, these treaties should be accepted as part of the human rights framework for every jurisdiction, and compliance with them should be integrated into the work of all human rights commissions. B.C. has been the first to incorporate that role explicitly in its human rights legislation, and deserves applause for it.

The one weakness in this legislation is that the Commissioner does not have the power to initiate complaints when to do so would be in the public interest. Commissions in a number of other jurisdictions have this power. The B.C. Commissioner should have the flexibility to initiate a complaint as an important back-stop for the education and inquiry powers. When persuasion and recommendations do not work, the Commissioner should be empowered to seek a remedy from the Tribunal. On the positive side, the Commissioner has the power to intervene in complaints or in courts cases, and to assist a person or group with any aspect of a complaint.

This legislation is a big step forward for British Columbia, and the Government of British Columbia deserves praise for restoring a crucial institution and for being innovative.

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Midwives are affected by gender in three different ways: they belong to a profession overwhelmingly composed of women; they provide services only to women; and the services they provide support women's distinctive reproductive capacity to bear children. In a decision that the Association of Ontario Midwives (“AOM”) has called a "landmark", the Human Rights Tribunal recognized that discrimination based on gender has infected the Government of Ontario's determination of pay rates for midwives since 2005. 

The Tribunal's decision fully acknowledges the systemic discrimination that skews pay rates for a profession that is so gendered. What is troubling is that the AOM has spent years of work to obtain this decision and that they had to lay down again facts and principles about women's lives and women's work that were recognized more than two decades ago.

Midwives were first regulated as an independent profession in 1993. In anticipation, in 1985, the Government of Ontario appointed a Task Force on the Implementation of Midwifery, chaired by Mary Eberts, which recommended a framework for the regulation of the profession. The Task Force recognized midwives as specialists in providing care to women with healthy, low-risk pregnancies. As a result of the Task Force recommendations, the pay rate for midwives, as independent health care professionals, was set between the rate for senior nurses and the rate for family physicians in Community Health Clinics. This was done on the basis of a thorough job evaluation, and, at the time, the midwives and the Ministry of Health agreed that this methodology fairly compensated midwives for the actual services they provide, and ensured that gender did not affect their pay rates.

The Tribunal found that for the decade between 1995 and 2005, this structure held, but after 2005, it did not. Midwives compensation rates were affected by wage freezes, and while the rates for family physicians in Community Health Centres were subsequently adjusted, rates for midwives slipped backwards and the previously accepted ratio between the two was not maintained. Subsequently, the Ministry of Health rejected the family physicians in Community Health Centres as an appropriate comparator for midwives pay rates, and also rejected the fact that gender played any role, or should play any role, in the Ministry of Health's consideration of pay rates for midwives. The Ministry of Health maintained this position, even though three different expert reports, including the Courtyard Report issued in 2010, reconfirmed the original principles and compensation structure as appropriate and fair.

The Tribunal had to decide whether it matters that the gender composition of one of the original comparator groups — family physicians in Community Health Centres — has changed since 1993. They were predominantly male when the pay structure was formulated; in 2018 more women than men are family physicians in Community Health Centres. The Tribunal decided that this was not a telling point. The crucial fact here is that midwives are a group of sex-segregated workers, devoted solely to women's reproductive health care, whose compensation levels will be affected by sex discrimination, unless that discrimination is recognized and corrected for. The Tribunal concluded that "the Ministry of Health unilaterally withdrew from the 1993 principles and methodology, leaving the compensation of midwives exposed to the well-known effect of gender discrimination on women's compensation."

Shaping the remedy is left in the hands of the parties, unless they cannot agree. The Tribunal recommends that they "reset their relationship" and establish a new process for maintaining appropriate and non-discriminatory compensation levels for midwives that is based on the original funding principles.

This is an excellent remedy for a circumstance like this one, where complex negotiations are needed, and there is an ongoing relationship. But, if the First Nations Family and Child Caring Society is an example, these parties may be back in front of the Tribunal, perhaps more than once, before a new pay structure, that is free of gender discrimination, is in place.

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The Supreme Court of Canada just closed another door on avenues to deal with the never-ending sex discrimination in the Indian Act. It ruled in Canada (Human Rights Comm.) and Matson v. Canada (Attorney General) that the Canadian Human Rights Act cannot be used to seek a remedy for sex discrimination in the Indian Act because complaints are a direct challenge to the legislation, not a challenge to discrimination in a public service. Legislating is not a public service. Consequently, there can be no human rights complaint.

The Court could have ruled otherwise. The Canadian Human Rights Commission argued that registration under the Indian Act is a service. If registration is denied because of the sex discrimination in the Indian Act, Jeremy Matson and others like him are barred from accessing tangible benefits, including extended health care coverage, and support for post-secondary education, as well as the intangible benefit of having one's First Nations ancestry officially recognized. The sex discrimination in the Indian Act is a bar to receiving benefits for those persons whose Indian ancestor is female not male, or whose female Indian ancestor married, or had children, with a non-status Indian man. This group is refused benefits in the same way that Robert Tranchemontagne was refused disability benefits in Ontario because his particular disability was alcohol and drug use (see Tranchemontagne v. Ontario (Dir., Disability Support Program) (2006), 56 C.H.R.R. D/1 (S.C.C.) and Ontario (Disability Support Program) v. Tranchemontagne (2010), 71 C.H.R.R. D/1 (Ont. C.A.).

There have been numerous cases in which tribunals and courts have accepted that public benefit schemes constitute services customarily available to the public. And, as the Commission pointed out, tribunals have dealt with discrimination in legislated rules governing receipt of benefits, including income assistance benefits (Hendershott v. Ontario (Community and Social Services) (No. 1) (2011), 72 C.H.R.R. D/1 (H.R.T.O.); survivor pension benefits (Gwinner v. Alberta (Minister of Human Resources and Employment) (2002), 44 C.H.R.R. D/52 (Alta. Q.B.)); and workers' compensation benefits (Seberras v. Workplace Safety and Insurance Board of Ontario (No. 5) (2012), 73 C.H.R.R. D/446 (H.R.T.O.), just to name some. When it is discrimination that bars an individual or group from receiving benefits, whether that bar is legislated or not, the Canadian Human Rights Tribunal should be able to address it.

Instead of taking a deep dive into the arguments about whether Matson was discriminatorily denied a service, the Supreme Court of Canada focused on whether the Court should defer to the Human Rights Tribunal. The majority (Gascon, Abella, Moldaver, Karakatsanis, Wagner JJ., and McLachlin C.J.) said that the Court should defer. Since the Tribunal decided that it could not deal with Matson's complaint, this seems a suspiciously easy ruling to make. It would have been a real test of the Court's willingness to defer to a human rights tribunal, if the Tribunal had found it could decide the case, and ruled that Matson was barred from tangible and intangible benefits because of sex discrimination.

This is a very disappointing decision from the Court, one that narrows the application of s. 5 of the Canadian Human Rights Act, and narrows access to justice for Indigenous complainants, who have now been told they must go to court and rely on the Charter to challenge any discrimination that flows from legislated provisions of the Indian Act.

Until 2008, s. 67 of the Act barred the Commission from accepting complaints regarding actions by Band Councils or the Government of Canada that were made pursuant to the Indian Act. When s. 67 was repealed, this was held out as an important step in improving access to justice for Indigenous people. But the Matson decision demonstrates just how empty a gesture it was to repeal s. 67. The capacity of the federal human rights system to assist First Nations people with discrimination authorized by the Indian Act was so late in coming, and now it has been seriously weakened by the Supreme Court of Canada.

This decision of the Supreme Court of Canada is also disappointing because it unnecessarily prolongs the life of legislated sex discrimination against First Nations women and their descendants. For Jeremy Matson, Sharon McIvor, and about 260,000 other First Nations women and descendants of women1 who would be entitled to Indian status if the sex discrimination were finally and completely eliminated, this decision is dismaying, but probably not surprising. Efforts to end Indian Act sex discrimination have been made continuously in Canada since Jeannette Corbiere Lavell and Yvonne Bedard were first in the Supreme Court in 1973. For forty-five years, neither Canada's courts and tribunals, nor successive Governments of Canada, have had the will to end it.

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1.             Parliamentary Budget Officer, Bill S-3: Addressing Sex-Based Inequities in the Indian Act, December 5, 2017, online: http://www.pbo-dpb.gc.ca/web/default/files/Documents/Reports/2017/Bill%2...

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In January of 2014, the president of Trinity Western University (“TWU”) released a celebratory letter advising that all major hurdles for accreditation of a proposed law school had been met, despite objections to the university's community covenant, which provided for the discipline or dismissal of students, staff or faculty who engaged in any intimate activity, except between a man and a woman, who were married.

As the recent decision of the Supreme Court of Canada reveals, TWU's confidence was premature, but it stemmed in large part from the earlier 2001 Supreme Court of Canada decision which overturned a refusal by the British Columbia College of Teachers to accredit a proposed teacher training program at the university as a result of the discriminatory effects of the community covenant.

The 2001 SCC decision [Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31, 39 C.H.R.R. D/357] rested largely on an interpretation of the Teaching Profession Act and the authority it delegated to the British Columbia College of Teachers. The SCC concluded that this act only permitted considerations relating to the effect of accrediting TWU on the conduct of future graduates from the program. On this narrow analysis, not surprisingly, the Court found there was no evidence that graduates from a university with discriminatory policies would, themselves, act in a discriminatory fashion when they became teachers.

The British Columbia College of Teachers was not permitted to consider the public interest implications of granting approval to an institution with discriminatory policies.

In obiter, the SCC suggested that TWU was not subject to the then Human Rights Act, on the basis of s. 19 (now s. 41 of the Human Rights Code). This section exempts religious, and other organizations, which have, as their primary purpose, the promotion of the interests and welfare of an identifiable group or class of persons characterized by, amongst other things, “a common religion”.

These comments have resulted in repeated claims by TWU that the covenant did not breach the Human Rights Code.

Trinity Western University was created by provincial statute: The Trinity Western University Act, S.B.C. 1969, c. 44. Section 3(2) of this act sets out the purpose of the university, in this way: “The objects of the University shall be to provide for young people of any race, colour, or creed university education in the arts and sciences with an underlying philosophy and viewpoint that is Christian”.

As the legislatively defined purpose of the university is not to promote the interests of people with a common religion, but rather to provide a university education for young people of any race, colour or creed, with an education with a particular philosophy and viewpoint, a more careful analysis of s. 41 of the Human Rights Code may not actually afford TWU any exemption.

The recent Supreme Court of Canada decision, upholding the British Columbia [Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, CHRR Doc. 18-3036] and Ontario Law Society [Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, CHRR Doc. 18-3037] decisions to deny accreditation for TWU's proposed law school was premised on a more expansive interpretation of the Law Societies' legislative authority. Unlike the British Columbia College of Teachers, the Law Societies were not restricted to considerations with respect to the conduct of theoretical future graduates.

In British Columbia, the object and duties of the Law Society are set out in s. 3 of the Legal Profession Act. It is the object and duty of the Law Society to uphold and protect the public interest in the administration of justice by, amongst other things, preserving and protecting the rights and freedoms of all persons.

While, through the course of the litigation, and public debate, TWU attempted to characterize the Law Society decision to refuse approval for the proposed law school in terms of the anticipated conduct, or religious beliefs, of theoretical future graduates, this mischaracterization was rejected by the Supreme Court of Canada.

On the basis that the Law Societies have a duty to consider matters other than the conduct of future graduates, the decision to deny approval to a university with discriminatory policies was found to be reasonable and in accordance with the Law Societies mandate.

In August 2018, just two months following the SCC decision, TWU announced that it was going to make the discriminatory covenant optional for future students. TWU confirmed, however, that it would remain mandatory for faculty and staff, who will still be subject to discipline or dismissal for engaging in any intimate activity, outside of a heterosexual marriage.

If, as seems likely, TWU tries again to open a law school, they will still face challenges, as long as they maintain their discriminatory policy with respect to faculty and staff.

In order to grant degrees in British Columbia, approval must be obtained from the Minister of Advanced Education. When TWU originally applied to open a law school, the then Minister of Advanced Education commissioned a report on the proposal by a panel of academic experts. The report identified a number of concerns, including the capacity of TWU to attract and retain high caliber faculty in light of the discriminatory covenant. When the Law Society revoked approval for TWU, the then Minister of Advanced Education revoked the provisional approval, which had been granted. As a result, the faculty recruitment and retention issue was not resolved. In the event of any future application for approval to grant degrees, this issue would need to be resolved, to the satisfaction of the Minister of Advanced Education.

Law Societies would then need to determine if granting approval to a university with a discriminatory policy that applies to faculty and staff, would be in the public interest.

One of the cases referenced, in the course of the most recent litigation, by the Ontario Court of Appeal, was Bob Jones University v. United States, 461 U.S. 574 (1983). That United States Supreme Court decision, considered the tax status of Bob Jones University. Bob Jones University had a policy that prohibited interracial dating, on religious grounds. The decision revoked Bob Jones Universities ability to issue tax receipt for donations. Despite the decision, Bob Jones University maintained the ban on interracial dating until the year 2000. TWU's prohibition on same sex intimate activity is the moral equivalent to the Bob Jones University prohibition on interracial dating.

It is difficult to imagine that a university which prohibited faculty and staff from engaging in any intimate activity with anyone of a different race would receive discretionary approval from the Law Society that is obliged to make decisions that are in the public interest. The same analysis ought to apply in the event of a reapplication by TWU to the Law Society.

Michael Mulligan

Michael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria, B.C. He played a leading role in ensuring that the B.C. Law Society refused to accredit a law school whose students, faculty and staff were required to adhere to a discriminatory covenant.

 

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At the time of the #MeToo movement, examination of available procedures for obtaining remedies for sexual harassment and sexual assault has become particularly important. The Human Rights Tribunal of Ontario issued a recent decision in G.M. v. X Tattoo Parlour that demonstrates an additional way in which human rights complaints can assist women who are harassed and assaulted.

Customarily, in human rights complaints filed by women who are harassed at work, both the facts and the remedy are decided by a Tribunal.  In the case of G.M., however, the facts were decided by Justice J.M. Grossman of the Ontario Court of Justice in May 2016 in a criminal hearing of charges against the respondent. The Human Rights Tribunal of Ontario ruled solely on remedy, awarding G.M. $75,000 as compensation for the injury to her dignity and self-respect.

The complainant in this case, G.M., was fifteen years old. The respondent was a family friend, and G.M.'s mother and the responden's wife were best friends. The respondent opened the X Tattoo Parlour with a loan from G.M.'s parents.

G.M. loved to draw and planned a future as a tattoo artist. She had some struggles in school and at home, but she began to improve her grades and to work as a volunteer. In 2014 G.M. asked the respondent if she could volunteer in the tattoo parlour and train to do tattooing. It was agreed, and she began to volunteer in the summer of 2014.

At the tattoo parlour, the respondent asked her intrusive and embarrassing questions about her gender preference and sexual activities. She tried to avoid these discussions. On August 27, 2014, when she was alone at the tattoo parlour with the respondent, he assaulted her, showed her his penis, inserted his finger in her vagina and put his mouth on her breasts. He also offered her money and a free tattoo in exchange for sex. The respondent pleaded guilty to criminal charges of sexual assault, invitation to sexual touching and sexual interference. The Tribunal accepted the findings of fact made by the court.

As Kasari Govender, Executive Director of West Coast LEAF (Women's Legal Education and Action Fund) pointed out at the recent conference of the Canadian Association of Statutory Human Rights Agencies in Whitehorse, Yukon, the benefit to G.M. of the Tribunal's acceptance of the fact-finding from the criminal hearing is that she could seek a human rights remedy, without having to testify one more time about the facts of the assault and sexual interference, in other words, without being re-traumatized. At the human rights hearing, the focus was on G.M. and the harm done to her by the respondent's conduct.

As a result, G.M. says that the Tribunal's award provides justice that she didn't receive through the criminal trial. "It made me feel that for the first time I had achieved something, within this whole case, that didn't leave me extremely disappointed …" (Huffington Post, March 30, 2018).

The Tribunal's decision also provides justice because of the amount of the award. Awards in sexual harassment cases are rising, as they should, to reflect the seriousness of the violation that has occurred. In this case, the Tribunal took into account her age and the serious breach of trust that was involved. Hopefully, the amount also reflects a growing understanding that sexual harassment is no joke.

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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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The Northwest Territories Adjudication Panel recently handed down a decision that is important beyond the tiny Hamlet of Tuktoyaktuk, which is the respondent in the case, and beyond the borders of the Territory (Bates v. Northwest Territories (Education, Culture and Employment), CHRR Doc. 17-3097). It is a decision on the meaning of the ground “social condition”. Because there are not many such decisions, each one is significant.

Only Quebec and the Northwest Territories have human rights laws that include the ground social condition. Other provincial and territorial laws include source of income or receipt of public assistance, but sometimes only in the prohibitions against discrimination in tenancy (Ontario and British Columbia). The Canadian Human Rights Act contains no prohibition against discrimination on the ground of social condition or any similar poverty-related prohibition. Social condition is a broader and better term and should be included in all human rights legislation now.

Because legislation lacks the ground social condition or includes only a narrow version of it, the application of human rights law to discrimination because of poverty, homelessness, and related conditions, is remarkably underdeveloped in Canada.  Legislative reform to strengthen protections, steps to encourage and support the use of existing protections, and solid, thoughtful adjudication are badly needed.

All the more reason to cheer for the decision of the NWT Panel in Bates, which ruled that providing food vouchers to income assistance recipients, which can only be used in the Hamlet's two stores, constitutes discrimination on the basis of social condition. The Hamlet changed from providing monthly cheques for the whole of the income assistance amount to providing food vouchers in September 2011, apparently because of concern that children were coming to school hungry. There was no evidence that the hungry ones were the children of income assistance recipients. Nor was there any evidence that the food voucher system, in the years it was in place, made any difference to the children's hunger.

The Panel found that the change from cheques to food vouchers was based on a derogatory belief that income assistance recipients spend their money on alcohol, drugs, and candy, rather than on food for their children. The complainants testified that the food vouchers made them feel humiliated and demeaned, as though they could not make reasonable decisions about how to spend their income assistance and look after their families. The food voucher system also meant that they had no cash to buy country foods (moose, ptarmigan, goose, whale, berries) from local hunters and fishers. Nor could they shop in the town of Inuvik when there was the opportunity, where some food is cheaper, and choice is greater.

Embarrassingly, the reply to the complaint from the Government of the Northwest Territories was that there was no discrimination inherent in the food voucher system, because all welfare recipients in Tuktoyaktuk were treated the same. This is a bit like saying that providing no ramps for wheelchair users is not discriminatory because all wheelchair users are treated the same. By now, formalistic arguments like this one should be banished from the lexicon of arguments that Crown lawyers rely on. They are too old, too tired, and too discredited to be offered in defence of government conduct.

That said, we applaud the Pane's conclusion that the food voucher system discriminates against income assistance recipients in Tuktoyaktuk and look forward its decision on remedy.

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Federal, provincial and territorial Ministers responsible for human rights met in Gatineau, Quebec between December 10 and 12, 2017, to discuss key priorities of their governments in relation to the implementation of Canada's international human rights obligations. Statutory human rights laws, commissions and tribunals are key instruments and institutions for fulfilling the human rights that Canada has endorsed in international human rights treaties, and for providing remedies when those rights are violated. Representatives from human rights commissions were present at this historic meeting.

A small group of Indigenous organizations and civil society groups were invited to attend.  This is their joint statement.

Almost seven decades ago Canada joined other states1 in adopting the Universal Declaration of Human Rights, agreeing that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.  The Declaration and other principles of international law, make it clear that these universal human rights principles are binding on all levels of government within a country.  That is why this meeting of federal, provincial and territorial Ministers responsible for human rights in Canada is of such importance.

Despite obvious human rights advances in Canada over the 69 years since the Universal Declaration was adopted, there remain many significant and glaring gaps and failures.  Those shortcomings have been repeatedly highlighted over the years in examinations of Canada's human rights record carried out by treaty-monitoring committees, independent experts and other governments, through the many human rights review processes states have developed within the United Nations and Inter-American human rights systems.  Important, constructive recommendations for reform have been made to Canada.  But Canada's record of taking up those recommendations and thus complying with the country's international human rights obligations has been inconsistent at best and an abject failure at worst.  International bodies have consistently called on Canada to develop a better approach.

Indigenous peoples organization and civil society groups have, on many occasions, called for a strengthened and improved system for ensuring effective international human rights implementation in Canada.2  We have always stressed it is important to improve the protection of human rights domestically and also to demonstrate strong global leadership in a world desperately in need of countries prepared to meet their international obligations.

Without action by … [federal, provincial and territorial ministers responsible for human rights] … the inter-governmental coordination needed to ensure that Canada's international human rights obligations are meaningfully and consistently implemented will remain elusive …

We offer the following recommendations as to key principles and concrete action we hope you will commit to in agreeing to close Canada's international human rights implementation gap.

1.      Recognize that you are Canada's international human rights implementation leadership team

-        Take responsibility for ensuring a whole of government approach to international human rights implementation.

-        Establish an inter-governmental working group at deputy ministerial level tasked with developing a new legal framework for international human rights implementation in Canada, in close consultation with Indigenous peoples organizations and civil society groups.

-        Agree to meet again in December 2018 to mark the 70th anniversary of the Universal Declaration of Human Rights and report on progress towards a new model.

-        Commit to meet regularly going forward.

 

2.      Embrace the following six principles at the heart of a new human rights-based framework for international human rights implementation in Canada

-        Recognize and respect the rights of Indigenous peoples, guided by the UN Declaration on the Rights of Indigenous Peoples.

-        Adopt an intersectional feminist approach to upholding human rights.

-        Apply a racial equity impact lens and a disability-based inclusion lens to Canada's international human rights implementation framework.

-        Commit to substantive equality to address systemic discrimination and marginalization.

-        Address intersecting forms of sexism, racism, ableism and other forms of discrimination.

-        Acknowledge that the fulfillment of economic, social and cultural rights is a threshold requirement for the enjoyment of civil and political rights, particularly for those groups that are most disadvantaged, and that all human rights are universal and interdependent.

3.      Provide a genuine and meaningful role for the following groups and institutions in implementing international human rights in Canada

-        Indigenous peoples organizations, including Indigenous women's organizations

-        Civil society groups, especially those working directly with marginalized and subordinated communities and groups 

-        Parliament and legislatures

-        Federal, provincial and territorial human rights commissions and tribunals

4.      Ensure that accountability and access to justice and effective remedies are the hallmarks of Canada's approach, at all levels of government, to international human rights implementation

-        Canada must recognize that access to justice and effective remedies is critical for all human rights, including economic, social and cultural rights.

-        In addition to ratifying the Optional Protocols to the Convention on the Rights of Persons with Disabilities and Convention against Torture, Canada should ratify the optional complaints procedures for the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of Racial Discrimination and the Convention on the Rights of the Child.

-        Collect and publish data disaggregated with respect to sex and gender, Indigenous, racial and ethnic identity, disability and other characteristics relevant to identifying, understanding and addressing patterns of human rights abuse.  

-        Establish mechanisms for ongoing inter-governmental coordination at a level of authority that allows for accountable decision-making.

-        Regularly report publicly on implementation, against timelines and benchmarks.

-        Institute an independent oversight body to report on Canada's progress toward meeting its international human rights obligations.

Notes

1.      The Universal Declaration of Human Rights was adopted by the United Nations General Assembly on December 10, 1948.

2.      Empty Words and Double Standards: Canada's Failure to Respect and Uphold International Human Rights, 2012, http://www.amnesty.ca/get-involved/lead-in-your-community/empty-words-and-double-standards-canadas-failure-to-respect-and-; Promise and Reality: Canada's International Human Rights Implementation Gap, 2008, http://socialrightscura.ca/documents/UPR/JS1_CAN_UPR_S4_2009_SocialRightsAdvocacyCentre_Etal_JOINT.pdf.

 

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The decision of the Supreme Court of the Northwest Territories in Northwest Territories v. Portman (No. 2) (2017 NWTSC 61, CHRR Doc. 17-3077) is dismaying. It does not fit the times, or the serious problems that there are in Canada with access to justice.

Lack of legal aid funding to support access to justice, particularly for poor and vulnerable individuals, is a notorious problem, commented on repeatedly by Canada's Chief Justice, the Honourable Beverley McLachlin. The lack of legal representation for human rights complainants is also a notorious problem, not just in the Northwest Territories, but in many jurisdictions in Canada. In British Columbia, the B.C. Human Rights Tribunal, in its annual report, recently highlighted the fact that complainants appearing before the Tribunal with legal counsel are markedly more successful than complainants who represent themselves, skewing the fairness of the system.

Human rights matters are complex and complainants need experienced counsel.  Elizabeth Portman presented compelling evidence that, as a woman with multiple sclerosis, her ability to represent herself in a human rights complaint is seriously compromised. Ms. Portman's multiple sclerosis causes fatigue, pain, and diminished cognitive functioning and ability to communicate. These symptoms are exacerbated by stress. She testified that she could not participate in a hearing for more than four hours per week, and when her condition worsens, she would be incapable of participating in a hearing at all.

How dismal it is, then, to find the Supreme Court of the NWT resorting to the hackneyed argument that Ms. Portman was not discriminated against when she was denied legal aid for her human rights complaint because the Legal Services Board does not provide legal aid for human rights complainants. The Court says the service she claims she was denied does not exist; consequently, there was no discrimination.

According to the Court, the Legal Services Board only provides legal assistance to eligible persons for specific types of legal problems. Ms. Portman cannot require the Legal Services Board to expand its mandate to provide her with legal aid for human rights complaints.

For people with disabilities, this is a familiar argument: The service you need is not provided, so you are not being discriminated against. This reasoning fails to engage with the practical realities that people with disabilities face. People with disabilities consistently have to argue that omissions, failures to provide services that will give them meaningful access, are discriminatory.

The Court denied that Ms. Portman's complaint was like Jeffery Moore's (Moore v. British Columbia (Education), 2012 SCC 61, 75 C.H.R.R. D/369). Jeffrey Moore complained that he was discriminated against by the North Vancouver School District when it failed to provide the special services he needed because of his severe dyslexia. In that case, the Supreme Court of Canada ruled that Jeffrey Moore was discriminated against because he needed special assistance in order to access the general education that the District provides to all children.

Similarly, Ms. Portman needs legal aid in order to make the human rights process useable for her. And, as a person with a disability, access to the human rights process, so that she can be heard when she is discriminated against, is fundamental for Ms. Portman.

The Court's attempt to distinguish Moore is not persuasive. After so many years of litigation on disability issues, people with disabilities expect courts to have moved on from the simple assertion that the non-existence of a service is a complete answer to a complaint of disability discrimination.

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British Columbia has a new government, and the New Democratic Party leadership has hastened to fulfill an important election promise, that is, to re-establish the B.C. Human Rights Commission.

B.C's history with its human rights institutions has been a rocky one. B.C. first got a human rights commission in 1973 and it operated for 11 years before being disbanded in 1984 by Premier William Bennett. After an interim Human Rights Council, the Commission was later re-instituted in 1997, but it lasted for only five years, until 2002, when it was disbanded again by Premier Gordon Campbell. Since 2002, B.C. has been the only province in Canada without a human rights commission. It has had a stand-alone Human Rights Tribunal that is authorized to hear and adjudicate complaints. But it has had no commission to be a public voice for human rights, to take steps to prevent discrimination, educate the public, undertake inquiries on broad systemic issues, develop guidelines and promote human rights compliance.[1] 

In a 2011 report Mary Cornish pointed out that “eliminating discrimination is not simply a matter of designing a good tribunal process”, though that is a key building block. A human rights system must also be able to take the broader actions that can “transform the dynamics that support discrimination”.[2]

B.C. has a big gap to fill, and a 15-year public silence on human rights issues to break. It is encouraging that the new government is moving quickly, and that it has already publicly stated that having a tribunal for adjudicating and mediating complaints is essential, but not all that is needed to make a strong and stable human rights system. The release on the consultation process, which will take place between now and the end of November 2017, says: “… addressing discrimination after it happens is not enough. To prevent both every day and systemic discrimination before it happens, information and education are essential … The Commission will work to expose, challenge and end widespread entrenched structures and systems of discrimination through education, policy development and public inquiries”.[3]

We believe that the best model to follow now is Ontario's tri-partite system, which has a tribunal, a commission, and a clinic to assist those with human rights complaints. This model provides the range of powers that a human rights system needs both the preventive and pro-active roles, and the adjudicative and remedial ones. New human rights leaders, like the Chief Commissioner of the Canadian Human Rights Commission, Marie-Claude Landry, and the Chief Commissioner of the Ontario Human Rights Commission, Renu Mendhane, will be able to offer B.C. useful and practical advice about what they have learned in their roles.

We look forward to a dynamic consultation process in B.C. and to a new human rights commission in 2018.

 

Shelagh Day, President and Senior Editor,
Canadian Human Rights Reporter

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1.   This volatile history, and the resulting gap in B.C.'s human rights system, is documented in Shelagh Day and Gwen Brodsky, Strengthening Human Rights: Why British Columbia Needs a Human Rights Commission, Canadian Centre for Policy Alternatives and Poverty and Human Rights Centre (2015), online: https://www.policyalternatives.ca/sites/default/files/uploads/publicatio...

2.   Mary Cornish, “Building a Culture of Equality Through Human Rights Enforcement” (Whitehorse: Government of Yukon, 2011) at 3, online: http://www.justice.gov.yk.ca/pdf

3.   B.C. Human Rights Commission, Parliamentary Secretary's Terms of Reference, online: http://engage.gov.bc.ca/bchumanrights/parliamentary-secretarys-terms-of-reference/

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