View Point

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

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.

top

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

______________

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/

top

Reconciliation means … what? We seem to have lost the thread here. In the last few weeks, the Trudeau Government has deliberately increased distrust and conflict, not respect and conciliation.

First, the Government stripped the Senate's historic amendment from Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration). The Senate's amendment would, finally, have extended equality with respect to status, and transmission of status, to First Nations women. But in the Committee on Indigenous and Northern Affairs, the Liberal majority stripped out the Senate's amendment, and every Liberal Member of Parliament, except Hunter Tootoo and Nathaniel Erskine-Smith, stood in the House of Commons on June 20, 2017, and voted for a stripped down Bill S-3 that re-enacts the core sex discrimination that Indigenous women have been struggling to end for 50 years.

Three days later Indigenous and Northern Affairs Canada (“INAC”) announced that it will ask the Federal Court to quash the Tribuna's remedial order on Jordan's Principle. This order follows the Tribunal's decision on the merits (83 C.H.R.R. D/207), in which it ruled that INAC discriminates against First Nations children by underfunding on-reserve child welfare services.

Jordan's Principle is a protocol intended to ensure that where a government service is available to all other children, but a jurisdictional dispute regarding services to a First Nations child arises between Canada, a province, a territory, or between government departments, the government department of first contact pays for the service and can seek reimbursement from another government or department after the child has received the service. It is a child-first principle meant to prevent First Nations children from being denied essential public services, or experiencing delays in receiving them, because of inter-governmental disputes about which level of government is responsible.

The Canadian Human Rights Tribunal found on May 26, 2017 (CHRR Doc. 17-3036), that INAC was still interpreting Jordan's Principle narrowly and not applying it effectively. The Tribunal said INAC's approach does not remedy the discrimination against First Nations children.

INAC takes issue with the Tribunal ruling that initial determinations of requests for health services for First Nations children should be made within 48 hours, and that INAC should stop service delays caused by case conferencing, policy reviews, and other similar administrative procedures, before funding is provided.

Ministers Bennett and Philpott, speaking as family doctors, say this ruling will prevent doctors and health providers from conferring about a child's health. But Cindy Blackstock, who represents the First Nations Family and Child Caring Society, says the Society has never argued against case conferencing for medical purposes. It is case conferencing over who will pay that blocks the children from getting services quickly. Why appeal, asks Ms. Blackstock? Why not just seek consent from us that medical conferencing is not included? Why not go back to the Tribunal for clarity on the point? Why seek to quash the order when there is so much need, and so much urgency?

The danger of delay in providing services to First Nations children was dramatically revealed by the evidence before the Tribunal regarding the suicides in January 2017 of two 12-year-old girls who were members of the Wapekeka First Nation (“Wapekeka”). Before the loss of these children, Wapekeka had alerted the federal government, through Health Canada, to concerns about a suicide pact amongst a group of young children and youth. The First Nation made a detailed proposal in July 2016 proposal seeking funding for an in-community mental health team as a preventative measure.

The Wapekeka proposal was left unaddressed by Canada for several months with a reactive response coming only after the two girls committed suicide. In the media, Health Canada acknowledged it had received the July 2016 proposal in September 2016; however, it came at an “awkward time in the federal funding cycle”. Canada provided assistance once the Wapekeka suicides occurred. The Tribunal found that this situation highlighted the need for a change in the process around Jordan's Principle.  

Stripping the Senate's amendment out of Bill S-3, and the moving to quash the Tribunal's order, are outright refusals to correct obvious violations of the human rights of First Nations women and children. They belie the Trudeau government's espoused commitments to women's equality and to renewing "the most important relationship" with Indigenous peoples. According to the Truth and Reconciliation Commission, reconciliation requires respecting the "constitutional and human rights" of Indigenous peoples, and "constructive action on addressing the ongoing legacies of colonialism”. Neither is happening in these cases.

top

Justice Clément Gascon of the Supreme Court of Canada just did something startling, and excellent. He wrote a dissent in Stewart v. Elk Valley Coal Corp. that drives some truck-size holes through a sloppy majority decision from Chief Justice McLachlin. Too bad he stands alone, but he certainly stands out. And his decision is a relief.

Stewart v. Elk Valley is a decision about drugs, safety and big machinery. This combination seems to seriously interfere with the reasoning capacities of adjudicators and judges. Gascon J. states at the beginning of his judgment: “I fully appreciate the safety-sensitive environment at the workplace of Elk Valley, and how that environment motivates strict drug policies for employees. Nevertheless, such policies, even if well-intentioned, are not immune from human rights scrutiny”.

The majority of the Supreme Court of Canada upheld the Alberta Human Rights Tribuna's ruling (CHRR Doc. 13-3176) that Mr. Stewart was not discriminated against when he was terminated from his employment at Elk Valley.

Ian Stewart began working for Elk Valle's predecessor company in 1996.  He became a certified wheel loader operator. In October 2005, Mr. Stewart was involved in an accident at work. His loader bucket struck and broke a mirror on a stationary 170-ton truck. Mr. Stewart was directed to undergo a urine test, and he tested positive for cocaine. During a meeting with Elk Valley and union officials, Mr. Stewart admitted to using crack cocaine on his days off. Mr. Stewart had never approached anyone in the company or the union to say he had a drug use problem or to seek rehabilitative assistance. Mr. Stewart agreed subsequently that he was drug-dependent, although he did not recognize it at the time.

Immediately after the accident, Elk Valley terminated Mr. Stewart's employment on the grounds that he had violated the company's Alcohol and Drug Policy. The Policy states that, because safety in the workplace is of utmost importance, employees must disclose a dependency on alcohol or drugs. The Policy states that the company will terminate an employee who breaches the Policy.

The Alberta Human Rights Tribunal ruled that Mr. Stewart was not fired because he was drug dependent, but because he breached the Policy. It said no prima facie case of discrimination was made out. The Tribunal went on to consider whether, if there was discrimination, the company could have accommodated Mr. Stewart without undue hardship. The Tribunal concluded that it would be an undue hardship for the employer to change the termination Policy because its goal was to be a deterrent to drug use.

Gascon J. found several problems with the Tribuna's reasoning, which was successful at each level of court, as well as with the majority of his Supreme Court colleagues.  Justice Gascon points out that, even though it is now accepted law that drug dependency is a disability and human rights law applies, drug-dependent persons can still be caught in “a majoritarian blind spot” because of the stigma that surrounds drug-dependency; courts may suffer from this blindness.

One of the ways this shows up in Stewart, according to Gascon J., is that some evidence gets overlooked. There was no finding of fact, for example, that Mr. Stewart was under the influence of drugs at the time of the accident, or that the accident was related in any way to drug use. Rather, Mr. Stewart had an accident and subsequently tested positive for drugs that, according to the company's expert, he used more than 21 hours before the incident.

Gascon J. is particularly troubled by the Tribunal's ruling that there was no prima facie discrimination. He finds that the Tribunal emphasized the fact that Mr. Stewart's drug dependence was not completely incapacitating, and that he was still able to make choices about where and when to use drugs. This emphasis was “completely misplaced”, says Gascon J., because it substitutes the proper inquiry – whether drug-dependent persons are adversely affected by an employer's drug policy – with an improper inquiry, namely, whether drug-dependent person are in control of their actions.

The inquiry becomes about “choice”. Mr. Stewart in this case was presumed to have been able to choose to adhere to the Policy, and chose not to. Since, as a drug-dependent person, he was then treated in exactly the same way a non-dependent person, or casual drug user, who violated the Policy would be, his drug dependency was not considered a factor in his termination.

But Gascon J. points out that only drug dependent persons will have difficulty adhering to the drug Policy, and so formal equality, and equal application of a rule to persons who are differently affected by it, does not amount to non-discrimination. Gascon J. finds that the evidence showed that Mr. Stewart's addiction was a factor in his drug use, and in turn, in his violation of the Policy.

Gascon J. also disagrees with the analysis of reasonable accommodation. Elk Valley provided Mr. Stewart with no accommodation at all. Mr. Stewart did not believe that he had a drug problem, and so did not disclose it. When it was determined, and he agreed, that he did have a drug dependency, he was fired. The offer that he could re-apply for his job in six months, was not an offer of accommodation at all, since accommodation is intended to be implemented during employment and to assist an employee to sustain it.

Gascon J. found that the Tribuna's decision on both issues was unreasonable. He would have allowed the appeal. By writing his dissent, he has provided a sharp lesson on the “majoritarian blind spot”.

top

Everyone who cares about the life-threatening discrimination that Indigenous women and girls face in Canada is deeply worried now about the National Inquiry on Missing and Murdered Indigenous Women and Girls. The Inquiry has suspended meetings, and some advocates have issued an open letter expressing concerns about the Inquiry's faltering beginning.

One of the concerns is that, so far, the Inquiry's efforts to reach out to family members, and survivors of violence, have been confused and ineffective. This is a threshold problem, since hearing from family members is vital to the Inquiry's work.

We also have to be concerned, however, about whether the National Inquiry will be a robust mechanism for examining the facts and holding governments to account for their failures to address the long-standing systemic discrimination and the marginalization of the women. Only if it is, can we expect the crisis of violence to end.

The Inquiry's capacity to engage with discrimination that has deep roots, and is embedded in institutions and policies, is extremely important. None of our established domestic mechanisms can really handle a crisis of this kind.  Canadian courts, despite being the central mechanism for holding governments to account for their compliance with constitutional equality rights, cannot comfortably engage with this crisis of sexualized and racialized violence; courts prefer individual cases, narrow questions, and uncomplicated causality.

Because neither Canadian governments, nor Canadian courts, recognize social and economic rights as real rights, there is no venue for holding governments to account for the dismal social and economic conditions of Indigenous women and girls, which are a root cause of the violence. Shockingly, Canada cannot even say that it has effective mechanisms in place to hold police to account when they discriminate, even in brutal ways.

In contrast, international and regional treaty bodies can respond to a systemic human rights crisis, and have carefully defined the obligations of governments to prevent and remedy violence against Indigenous women and girls.  In 2015, after an investigation in Canada, the United Nations CEDAW Committee found that Canada is in grave violation of the rights set out in the Convention on the Elimination of Discrimination against Women and made 38 recommendations about measures to take. The Inter-American Commission on Human Rights also investigated the murders and disappearances, and made similar and overlapping recommendations. But Canada has no plan to implement these recommendations, and there is no mechanism for turning them into domestic action. They are not reviewed in Parliament or Legislatures; they simply languish.

That is why we now have a National Inquiry, in response to the demand from Indigenous women and human rights activists that governments create an accountability mechanism that can move us from crisis to change. This is fundamentally important. Lives are at stake, and Canada, as a nation, must take clear responsibility for the continuing deadly effects of its colonial past on Indigenous women and girls.  The Inquiry needs to be sturdy enough to hold Canadian governments to account and to make them act.

The question for all human rights advocates now is: how can we make sure this happens? The Inquiry cannot be allowed to fail.

* An earlier version of this column appears on the website of the Canadian Civil Liberties Association: https://ccla.org/act-freedom-2017-shelagh-day/

top

The First Nations Child and Family Caring Society was before the Canadian Human Rights Tribunal again recently. The Society claims that Indigenous and Northern Affairs (“INAC”) has not complied with the Tribunal's orders and it has asked the Tribunal for a non-compliance order. The issue is the ongoing under-funding of the on-reserve child welfare system, which results in Indigenous children going without services and being removed from their families, in disproportionately high numbers.

In its decision on the merits, issued in January 2016 (83 C.H.R.R. D/207), the Tribunal found that the complaint of systemic discrimination was substantiated; it ordered the federal government to cease its discriminatory practices, and to reform the First Nations child welfare program. The Tribunal also ordered the government to cease applying a narrow definition of an established protocol, commonly referred to as “Jordan's Principle”, whose goal is to ensure that emergency services to Indigenous children are delivered immediately and not stalled by arguments among federal, provincial and territorial agencies over which one is responsible.

In April and September 2016 the Tribunal issued more detailed orders and directed the government to report back to the Tribunal. However, INAC has not acted quickly, and its lack of material progress in reforming the program to comply with the Tribunal's orders is beginning to look like intransigence or incompetence, or both. The issue now before the Tribunal is whether Canada has complied with the orders, and whether new and even more specific orders are warranted.

The FNCF Caring Society claims that Canada has essentially made no changes to provide immediate relief to First Nations children and their families or to meet the Tribuna's orders. Budget 2016, which allocated monies for the First Nations child welfare program over five years, was announced in March 2016, after the Tribunal's first order, but it was formulated in 2015 and based on information and estimates from earlier years. No funds were added to respond specifically to the Tribunal decision.

In addition, the FNCF Caring Society states that Canada's "phased approach" means that full implementation of Budget 2016 investments will not be reached until 2019– 2020, after the next election, even though it has been proven that First Nations child welfare agencies are in urgent need of increased funding now.

Underlying the specific issues of what INAC needs to do, there is a long-standing dispute about the authority of human rights tribunals to issue detailed systemic remedies – remedies that will serve the transformative purposes of human rights legislation.

Government respondents in cases involving public services tend to push back at the remedy stage. They are most comfortable with bare declarations that identify a problem of discrimination that needs fixing. They want the matter of how to fix it left to them.

In cases like this one, however, where there is discrimination that INAC has been aware of for many years, but has taken no effective steps to address, supervisory and detailed remedies are clearly appropriate.

This means that the Tribunal and INAC are engaged in a dialogue on two levels – first, about the particulars of compliance with the Tribuna's orders in this case, and secondly, about whether and how, as institutions, governments and human rights tribunals can interact effectively to ensure that real change happens in complex systems where discrimination is entrenched.

It is important that INAC demonstrates respect for the systemic remedial authority of the Tribunal. This matters directly for the lives of many Indigenous children; it also matters for all future systemic cases.  

top

Of course Trump's ban is a Muslim ban; most of the people it harms are Muslim. It is also a ban based on nationality, which bars people from seven Muslim-majority nations and all Syrian refugees from entering the United States. United Nations High Commissioner for Human Rights, Zeid Ra'ad Al Hussein, said on January 30, that the ban discriminates based on nationality and is illegal under international human rights law.

Canada is being applauded by other countries, and by commentators like Nicholas Kristof in the New York Times,1 for welcoming refugees in a time of global xenophobia. It is fine to accept those accolades and to be proud of what we have done for Syrian refugees so far. But, as a country that turned away Jewish refugees in the 1930s even though they faced death, we cannot be smug about our goodness or complacent about the real dangers that refugees confront.

And Canada has its own home‑grown Islamophobia. Two days after Trump's ban, six Muslim men were murdered and 19 others injured while praying in a Quebec City mosque. The debate about the Quebec Charter of Values, the Harper ban on Muslim women wearing a niqab when they take the citizenship oath, politicians proposing “barbaric practices” snitch lines and vetting immigrants for “Canadian values”, and radio hosts; angry anti‑Muslim talk, have marked Muslim-Canadians as “other” and as objects of suspicion. Unfortunately, Alexandre Bissonnette and his murders are rooted here. He is ours, much as he shames us.

However, Bissonnette, and others similarly inclined, have been emboldened by Donald Trump, who, with his ban, has attempted to legitimize fear and hatred of Muslims, and licenced his supporters to express it. Donald Trump affects the moral climate in Canada too.

So there are two reasons for the Government of Canada to step forward now to respond to Trump's ban: first to help refugees who have been stranded and whose lives Canada can help save; second, to demonstrate to all Canadians, including the Alexandre Bissonnettes among us, that, as a nation, Canada will not foster, but rather combat discrimination, hatred and violence against Muslim women and men, wherever they are.

Advocacy organizations, like the Canadian Civil Liberties Association, have identified practical steps that can be taken to help, and to take out a Canadian position. First, Canada needs to suspend the Canada‑U.S. Safe Third Country Agreement, which currently bars asylum-seekers who travel through the US from making refugee claims in Canada. The premise of this Agreement is that the U.S. is a “safe country” in which to claim refugee status, so if asylum‑seekers are travelling through the US, they can make their claims there. In light of Trump's Executive Order, the U.S. is no longer a “safe third country”.

Secondly, Canada needs to step up its capacity to process applications from asylum seekers affected by the ban who wish to seek refuge in Canada.

And thirdly, we should remove the cap on the number of privately sponsored refugees that will be accepted into Canada in 2017, so that Canadians can organize in their communities to help individuals and families affected by the U.S. ban.2

There are more steps to be taken, but this would be a start. These are steps that would demonstrate, in concrete ways, solidarity with those who are threatened. They would also show that, in the face of a belligerent and hate‑mongering Trump, Canada will not “duck and cover”, but work openly to respect human rights.

 

Notes:

1.   Nicholas Kristof, The New York Times, “Canada, Leading the Free World”, February 4, 2017, online at https://www.nytimes.com/2017/02/04/opinion/sunday/canada-leading-the-fre...

2.   The Globe and Mail, “CCLA Calls for Concrete Action from Canadian Government”, February 2, 2017, at A5.

top

The Ontario Human Rights Commission has produced a new strategic plan for its work over the next five years (Putting People and Their Rights at the Centre –  http://www.ohrc.on.ca/sites/default/files/Strategic%20Plan_
2017-2022_accessible_EN.pdf). This is an excellent development. The plan makes the mandate and work of the Commission transparent and comprehensible to the public and to the media, who are often still confused about the difference between a Human Rights Tribunal and a Human Rights Commission. Since Ontario is the jurisdiction in which the difference in roles is most marked, it is helpful to have the Commission articulate clearly that its focus is on tackling systemic discrimination, not through adjudication of cases, which is what the Tribunal does, but through the use of powerful and different tools – a public voice, research and inquiry, interventions in cases before the Tribunal and courts, and connection with a network of informed community organizations.

The Commission has chosen four strategic areas to focus on: reconciliation with Indigenous peoples; rights in the criminal justice system; advancing human rights by addressing poverty; and promoting a human rights culture through education.

Promoting a human rights culture through education is work that is needed and expected from human rights commissions. The other three areas are new. First, following the work of the Truth and Reconciliation Commission, the OHRC sets itself the goals of developing its own new relationship with Indigenous peoples and Indigenous organizations in Ontario, building a greater understanding of the enduring impact of colonialism, and enhancing accountability for systemic racism and discrimination against Indigenous peoples. 

On the issue of human rights in the criminal justice system, accountability is also the theme. The OHRC has already made its mark in this area by bringing to public attention the facts of the shocking solitary confinement of Adam Capay in a Thunder Bay prison for four years. In this case, Chief Commissioner Renu Mendhane demonstrated a much-needed willingness to uncover rights abuses, speak out, and seek change. In its strategic plan, the OHRC states it will work for the establishment of strong and transparent human rights accountability systems within the criminal justice system, and for non-discriminatory practices in policing and corrections, including ending the police use of racial profiling and solitary confinement in provincial jails.

Regarding poverty, the OHRC says it will work to make it clear how interconnected poverty and systemic discrimination are. The Commission says: “Poverty exacerbates marginalization and undermines peoples' ability to redress discrimination … Code-protected communities disproportionately experience poverty, with particular dynamics of marginalization facing persons living with disabilities, Indigenous peoples, women, older persons, children and youth, transgender people and racialized communities”.

The Commission plans to seek explicit Human Rights Code protection from discrimination for people who experience poverty, hunger and homelessness. It also plans to ensure that proposed strategies to address poverty take human rights into account.

This is an ambitious agenda, moving the Commission into a key role in addressing the historical and current discrimination against Indigenous peoples, the resistance of the criminal justice system to discharging its human rights obligations, and the harmful and obvious connection between systemic discrimination and poverty.

The Commission is showing what its role can, and should, be: a leader, a critical commentator, an innovator, and an advocate for honest and thorough implementation of human rights.

top

Legal representation is essential for meaningful access to justice in many human rights cases. Canadian human rights regimes were originally conceived with an integrated guarantee of legal advice and representation. Today, however, more and more complainants are responsible for ensuring their own representation in so-called “user friendly processes”. At least one human rights tribunal has recognized that unrepresented complainants are much less likely to succeed (Scowby v. Glendinning (1986), 8 C.H.R.R. D/3677 at para. 29132, per La Forest J., dissenting in the result). At the same time, Canadian human rights jurisprudence recognizes that human rights cases are not strictly private and cannot be equated with a lis between the parties in a court because "the ultimate goal is the promotion of human rights for the benefit of the community as a whole" (Senyk v. WFG Agency Network (B.C.) Inc. (No. 2) (2008), 64 C.H.R.R. D/245 at para. 129). There is a clear public interest in providing accessible fora for the resolution of human rights complaints.

A recent decision by the Northwest Territories Human Rights Adjudication Panel sets an important precedent for increased access to justice in the human rights context. In Portman v. Northwest Territories (Justice) (CHRR Doc. 16-3074), the Panel recognized that a blanket policy of refusing legal aid funding for human rights complaints resulted in systemic discrimination of persons with certain disabilities.  Importantly, the Panel framed the issue as one of equal and genuine access to a public service, that is, the human rights complaint process.  In doing so, the Panel rejected the narrower right to counsel approach developed in the criminal law context at common law and imported into s. 7 Charter jurisprudence.  The one drawback of the decision is that it links inability to self-represent with the existence of certain disabilities.  Yet, it would not be hard to find a range of complainants with complex human rights issues who are unable to meaningfully navigate tribunal proceedings on their own, particularly when faced with respondents who have the benefit of legal representation.

Portman has the potential to advance equal access to justice not only in the human rights context but also in a broader range of non-criminal cases.  Progress on this front has been stymied since the Supreme Court of Canada's groundbreaking 1999 decision in New Brunswick v. G. (J.), [1999] 3 S.C.R. 46, extending the right to state-funded counsel to child protection matters.  Attempts to extend this precedent have foundered for a variety of reasons including unrepresented claimants who are unable to satisfactorily marshal the factual basis and legal arguments, governments settling with claimants in order to avoid a precedent, claimants abandoning a claim due to the amount of time and energy required to pursue a right to counsel claim in addition to the underlying claim for which they seek assistance. Ms. Portman is a tenacious complainant and she was very ably assisted by Professor Laverne Jacobs and a team of students from the University of Windsor law school.

International human rights instruments emphasize the central important of equal access to fora for the determination of rights and remedies.  Equal access to the human rights adjudication process remains a live issue in Canada today. The Government of the Northwest Territories has appealed the Panel's decision and sought and was granted a stay.  Ms. Portman was unrepresented at the hearing of the stay application.

top

One of the great hallmarks of human rights protection in Canada is the existence of our tribunals and panels responsible for hearing complaints, sifting through evidence and applying the appropriate human rights code.  Where complaints are substantiated, the tribunals are responsible for awarding an appropriate remedy, a characteristic that distinguishes Canada from many jurisdictions around the world where human rights laws lack the teeth of enforcement and restitution.

Unfortunately, human rights tribunals in Canada are sometimes perceived as the lost cousins to the more high profile human rights commissions, which exist in 12 of Canada's 14 legal jurisdictions.  The commissions generally have broader mandates, which not only include receiving complaints (although not everywhere), but also in education and the promotion of human rights.  Every year, the federal, provincial and territorial commissions meet at an annual conference sponsored by their umbrella organization, the Canadian Association of Statutory Human Rights Agencies (“CASHRA”).

Until now, there has been no umbrella organization for Canada's 13 human rights tribunals  (Saskatchewan does not have a tribunal).  Although human rights legislation is similar in all Canadian jurisdictions, there are some notable differences in structure and mandate. For example, three jurisdictions have direct-access models, where complainants can bring their cases directly to human rights tribunals, while in the remaining jurisdictions, human rights commissions play a gatekeeper role before a case is referred to a tribunal. There are also some differences in the types of remedies available under the respective human rights codes of each tribunal.

Nevertheless, there are many common attributes and many common challenges for Canadian human rights tribunals.  Most importantly, we all share the common goal of bringing impartiality and integrity to the adjudication of human rights complaints to ensure that the Canadian public at large continues to support our worthy goals.  Surprisingly, notwithstanding all that we share in common, there existed no formal or even informal channels of exchange between our respective organizations.

It was in this context that a National Human Rights Tribunal Forum was held in May of this year.  Previously, a national human rights tribunal meeting was held in 1999 and was attended by six jurisdictions.  However, the group did not meet again.  The organizing for this year's event began last fall and one of the most difficult tasks at the outset was simply identifying and locating the other tribunals.  While every commission has a reasonable online profile, most of the provincial and territorial tribunals have none.

Eventually we were able to make contact with all of our provincial and territorial counterparts.  The invitation to attend the Forum was met with widespread enthusiasm and in the end, 11 of the 13 jurisdictions were able to attend.  I welcomed the attendees with the following words:

We are all gathered here today because we share something very important in common.  We have been entrusted by our respective governments to play a small, but very important role in the administration of justice.  We are all administrative tribunals with a mandate to expediently and fairly decide on important matters of human rights.   We are all challenged with our assignments, to be expedient, accessible and to bring our level of expertise to the inquiry, because in human rights, the stakes are very high.  For complainants who have been traumatized by discrimination, the process is very difficult for them, emotions run very high and sometimes the wounds are deep.  On the other side, no one likes to be a respondent to a human rights complaint, as alleged discrimination carries with it connotations of serious wrong-doing that are potentially damaging to personal or corporate reputations.

We have a difficult job to do.  We have to be committed, true to our values, and sometimes courageous to make decisions we know sometimes will be misunderstood.  But it is our passion for human rights that keeps us going, to do our bit for the administration of justice, and to create jurisprudence to guide Canadians about the manner in which we are expected to respect each other in society.

To this end, I am hopeful that this Forum will give us an opportunity to learn more about each other, best practices, experiences and training.  But also, hopefully, this Forum will help each of us understand ourselves a little better, the context in which we operate, and to see a clear path forward to making our institutions better, more highly valued and respected.  In this spirit, I would like to announce this Forum as officially re-opened, after a short 17-year hiatus.

The two-day event allowed the tribunal delegates to exchange ideas, share best practices and to generally better understand the common work we all do.  Each tribunal was also asked to give a short presentation of a leading case or new development in their jurisdiction.

In the end, each of us walked away with more knowledge and a new perspective.  Most importantly, there was a firm resolve by all attendees to ensure that our engagement with each other should continue.  There is a consensus that our group will meet on a bi-annual basis and there has been discussion about the creation of an umbrella association to ensure the free flow of communication and contact.  Indeed, since the days of our Forum, the participants have been sharing news of precedent-setting cases and other developments with each other.

While every tribunal has a need for independence, and certainly our own independence from each other, we remain committed to supporting and learning from each other to better improve our own accountabilities.

The Forum was hosted at the Offices of the Canadian Human Rights Tribunal in Ottawa.  The provincial and territorial attendees were:  Kathryn Raymond and Benjamin Perryman (Nova Scotia); Sherri Walsh (Manitoba); The Hon. Ann-Marie Jones and Frédérick Doucet (Québec); Yola Grant and Michael Gottheil (Ontario); George Filliter (New Brunswick); Penelope Gawn and Carmen Gustafson (Yukon); Katherine Hardie (British Columbia); Robert Philp and Janice Ashcroft (Alberta); Brenda Picard (Prince Edward Island); and, Sheldon Toner (Northwest Territories).

David L. Thomas, Chairperson
Canadian Human Rights Tribunal

top

Donate Now Through CanadaHelps.org! Faire un don maintenant par CanadaHelps.org!

CHRR decisions are only available from Canadian Human Rights Reporter Inc.

CHRR decisions are not included in LawSource (Westlaw), Quicklaw (LexisNexis) or CanLII.