Jury still out on human rights commissions

December 15, 2010

Dec. 15, 2010/ Troy Media/ – In the court of public opinion, human rights commissions and tribunals have been on trial in recent years, and in one province, the verdict is in.

The case has been made in Saskatchewan that it’s time to put to death human rights tribunals and send hearings straight to the courts.

It’s a dangerous move that could significantly set back human rights and lead to the nationwide dismantling of an accessible system of justice for victims of discrimination, warns one expert.

“It’s kind of an amazing leap back into the future,” says Ken Norman, a law professor at the University of Saskatchewan and chief commissioner of the Saskatchewan Human Rights Commission from 1978 to 1982. “It leaves me with my jaw down.”

Norman is referring to the announcement this year by Judge David Arnot, new chief commissioner of the Saskatchewan Human Rights Commission, that it’s time for hearings and decisions to be handled at Court of Queen’s Bench, the province’s highest court.

Not so, counters Norman, calling the idea “bizarre and ironic.”

“It’s just uncontradictable,” he asserted. “The reason we have these tribunals in human rights and in other areas that affect people’s lives is so that people can have access to justice without the expense and intimidation factor of getting their rights vindicated in front of a high court judge.”

The move goes against a June Supreme Court of Canada ruling reaffirming the authority of administrative bodies to properly handle matters dealing with rights and freedoms, says Norman.

Citing increasing complexities and delays in decisions in human rights cases in the past decade, Arnot argued that sending them to the courts will “elevate the stature of human rights issues within the justice system and improve the current decision timelines.”

An experiment in progress

A similar story is playing out in B.C., where there is also a move afoot to have human rights cases handled in the courts.

Almost every jurisdiction in the country is grappling with how to reform the system of redress for victims of discrimination, one that has become bogged down in all sorts of problems.

Janet Keeping, president of the Calgary-based Sheldon Chumir Foundation for Ethics in Leadership, says it’s evident that the provinces are going in different directions. “Some of these experiments are going to work out better than others,” she says. But “If we got together to talk about it in a systematic way,” people could learn more from one another, and “more efficiently get to a better place.”

That means cutting through the myths and misconceptions about what human rights commissions are all about and the work they do.

Legitimate criticism about their effectiveness has been obscured by controversy on issues of free speech. Commissions have been described as “kangaroo courts” intent on stifling free expression in pursuit of a politically-correct agenda.

“Debate seems to be about the issues of free speech and limitation on free speech,” says Norman. “That’s an issue that’s built into our human rights legislation. It wasn’t invented by human rights tribunals.”

The free speech issue is driving the move to abolish commissions, Norman says. If that happens, he adds, there’s a danger people won’t have access to justice on issues of discrimination.

Saskatchewan, he argues, would revert to 1947, when it passed a bill of rights that prohibited discrimination on the grounds of race, gender and religion. The remedy then was to take a complaint to provincial court. It was 1972 before the province put in place a separate, more accessible administrative system.

“In the 25 years in between, not one complainant went to court,” Norman says.  “Do you think people turned away by landlords are going to hire a lawyer if they think it’s because of their race or sexual orientation? No chance.”

Other experts in the human rights field share similar concerns.

No easy answers

But if the courts aren’t the answer to the woes facing commissions, then what is?

“The problem isn’t the legislation, it’s what is the best way to make sure that the protections that are afforded by antidiscrimination laws are enforced and enforceable,” says Keeping.  “I don’t think the answer to that question is obvious.”

Many experts agree. However, part of the answer is properly resourcing a system beset by workload problems; mediating more complaints to reduce delays; timelier adjudication of claims; improving transparency; and better educating the public.

“There’s a very solid argument for limiting the jurisdiction to the work that amounts to 95 per cent of commissions’ workload, which is discrimination claims in employment, rental provisions and services,” says Kevin Kindred, a lawyer and human rights advocate in Nova Scotia. “That has always been the overwhelming majority of the work, and the reason we have human rights tribunals.”

Some provinces are already undertaking reforms; Nova Scotia’s commission was recently given greater powers to dismiss frivolous claims, Kindred says.

Still, there are worries that Canada’s legislatures will heed the calls of the loudest critics and move to disband commissions or tribunals.

In the coming months, all eyes will be on Saskatchewan to see if the provincial government follows the advice of its chief human rights commissioner and passes a bill that would see cases handed over to the court.

That decision could prove a turning point for human rights in Canada and prompt other provinces to follow suit.

No promised land yet

Indeed, Canada’s system of redress for victims of discrimination is at a crossroads. Yet this country has “yet to see the promised land,” says Norman.

“We are not free of discrimination in Canada. People, because of their colour, gender or sexual orientation, or abilities or disabilities, experience injustice all the time.”

The question, he says, is, do Canadians care? And if so, should human rights protections be enforced through a system of justice?

“If we do, and if they should, then the one we need looks an awful lot like the one we already have in place.”