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November 26, 2010
CALGARY, AB, Nov. 26, 2010/ Troy Media/ – Canada has a long and proud history of protecting human rights and promoting equality.Yet a debate is raging among both libertarian activists and ordinary Canadians about the role of human rights commissions and whether they are delivering accessible justice in the very types of antidiscrimination cases they were set up to address.
On the one side, supporters argue HRCs are needed as much as ever. On the other, extreme critics call for their disbanding.
Where the sides can agree is that the processes for enforcing laws against discrimination are increasingly bogged down with procedural problems and delays, becoming more complex and misunderstood – and generally in need of an overhaul.
“Human rights commissions across the country are at a crossroads,” says Janet Keeping, president of the Calgary-based Sheldon Chumir Foundation for Ethics in Leadership. “They’ve been the target of a lot of criticism. A lot of people have failed to take into account the good work they have done, and are taking that for granted. It’s time for a rethink.”
Human rights rooted in Second World War
Roots of the modern-day Canadian Human Rights Act can be traced to the early 1940s. Intolerance was not limited to Nazi Germany; discrimination reared its head on Canadian soil, too.
Its precursor was the Racial Discrimination Act, enacted in Ontario in 1944. The landmark legislation prohibited the publication and display of any symbol, sign, or notice that expressed ethnic, racial, or religious discrimination. But the law merely forbade people from being overt about their discriminatory policies, whether it was a refusal to sell land to a Jew or allow a black person into a cafeteria.
Two years after Ontario’s law was enacted, a black woman from Halifax, Viola Desmond, was arrested for sitting in the “White-only” section of a theatre in that province. It would be nearly 20 years before such blatant discrimination would be outlawed under Nova Scotia’s Human Rights Act. Redress became available to victims through commissions and tribunals set up across the country in the 30 years following Desmond’s case.
Though the days of policies leading to the arrest of Desmond are largely gone, intolerance is not.
Today, though the Canadian human rights landscape has changed, the purpose of HRCs remains relevant. Just ask the many women who are refused work or fired because they are pregnant.
“Aboriginal people, the disabled, gays and many others can provide plenty of evidence that discrimination, unfortunately, remains widespread,” says Keeping.
Decades of change bring complexity and delays
When human rights commissions were set up, they were envisioned as a relatively quick and cheap source of justice for those who suffered discrimination. For many, they have indeed proved an effective remedy and resulted in widespread change.
Take the case of Brooks v. Canada Safeway, 1989, which involved discrimination against pregnant employees. In this case the Supreme Court of Canada recognized that discrimination on the basis of pregnancy was a form of gender discrimination (as only females can get pregnant).
Or, consider the fight Delwin Vriend launched against the Christian school that fired him for being gay. His human rights challenge proved a landmark provincial and federal legal case furthering gay rights.
Both cases had far-reaching impacts across the country, but neither was resolved as quickly and cheaply as those early mandates envisioned.
It’s a similar story for many others.
Over time, human rights complaints and investigations have become more complex, with commissions across the country mired in delays and procedural problems.
Longest ongoing case
Delorie Walsh knows something about that. The now 53-year-old woman was in her early 30s when she filed a complaint with Alberta’s Human Rights Commission in 1991 against Mobil Oil Canada – now ExxonMobil Canada. She claimed she was paid less than her male co-workers and that she was blocked from promotions and treated unfairly because she was a female landman.
After years of back-and-forth between the human rights commission and the courts, a human rights tribunal finally reached a decision on remedy in September 2010. The case is under appeal to the courts again. It holds the dubious distinction of being the longest ongoing case in the 37-year history of Alberta’s commission.
“That’s a real person who’s been dealing with a real issue and is up against an oil company with money to fight this,” says Linda McKay-Panos, of the Alberta Civil Liberties Research Centre.
“I admire her for sticking with it, but a lot of people don’t have the resources (or) . . . the psychological stamina to handle a complaint that goes on and on without a resolution,” says McKay-Panos.
Bizarre cases hijack debate
The right to wear religious headgear, or not be discriminated against in your employment because you are pregnant, or to be gay and employed as a teacher, or to earn equal pay for equal work are relatively straightforward kinds of discrimination that human rights commissions can – and do – handle. Employment issues, in fact, account for the vast majority – around 80 per cent in most jurisdictions – of the thousands of complaints dealt with every year.
This, however, seems to be lost in the public debate that has erupted over hate speech provisions within human rights legislation.
Instead, critics use a few headline-grabbing cases on hate speech to advance an agenda aimed at disbanding the human rights process, says Richard Moon, a law professor at the University of Windsor.
In completing a report for the Canadian Human Rights Commission, Moon said he was shocked by critics’ extreme tactics to discredit the entire process because of its handling of a few hate speech cases – an issue that represents less than one per cent of claims dealt with by commissions in the five jurisdictions which have hate speech clauses.
“In the course of doing this, I was really horrified by what I saw as a smear campaign” against the commissions “and the kind of degradation used in debate,” says Moon.
“While I thought there were good reasons to repeal section 13, the provision in the Canadian Human Rights Act that deals with hate speech, some of the critics made outrageous claims – distorting, even fabricating claims,” Moon says.
Moon, like many other human rights advocates, says there’s an administrative process where victims of discrimination can seek redress, albeit one that needs reform to be more effective.
“But let’s not undermine the whole enterprise by focusing on what are perceived to be problems with the hate speech element of what they do,” Moon says.
At last count, Alberta had approximately 1,000 reported cases on its books. The story is similar for commissions across the country, says McKay-Panos, of the province’s civil liberties research centre.
Commissions might be wounded, she concedes, but are not beyond saving.
“It’s clear there is a need for the work they do.”