The privatizing of human rights in Canada is well underway. Institutional support for the protection and promotion of human rights is being fundamentally eroded, both legislatively and by more subtle means.
Although substantive human rights law continues to expand the theoretical breadth of human rights protection, victims of discrimination are increasingly faced with insurmountable financial and procedural impediments to the enforcement of their rights. If current trends continue, there is the distinct possibility that the promotion and protection of human rights by independent public agencies will cease to exist in any meaningful form.
The most significant example of this fundamental shift has occurred in British Columbia. On March 31, B.C.'s Human Rights Commission was abolished by legislation. Complainants in B.C. must now proceed directly to a tribunal for a determination of their complaints.
A publicly funded legal clinic has been established by the B. C. government to assist parties through the litigation process. However, the clinic has no legal status and it is feared that with the clinic's modest budget there will not be adequate resources to deliver the legal assistance and public education required for an effective human rights system.
Questions have also been raised about whether society will be served by B.C.'s new mandatory mediation scheme. If more cases are settled privately, will human rights jurisprudence continue to advance human rights principles and deter future discrimination?
While there was a recognized need to change the cumbersome and often ineffectual investigative role previously performed by the B.C. Human Rights Commission, critics of the new system are very concerned that there is no longer any public body charged with responsibility for preventing human rights violations, or for dealing with systemic discrimination issues on a broad public level.
At the federal level, the Canadian Human Rights Commission is quietly divesting itself of its historic role as the lead party in cases referred to a tribunal hearing.
In the past, the commission's standard practice has been to assign legal counsel to represent the public interest at tribunal hearings. In most circumstances, the public interest paralleled the interests of individual complainants and therefore most individual complainants were not forced to finance their own legal representation.
However, in recent weeks most complainants with complaints being referred to a hearing were notified that the commission will not be involved in the tribunal proceedings. There has been no allocation of public funds to ensure that financially disadvantaged complainants have access to legal representation before the tribunal.
Those individuals immediately affected by this surprise policy change filed their complaints several years ago. They persevered through the quagmire of the commission's investigation and conciliation processes, often at considerable legal expense and personal hardship, with the understanding that if their complaints were referred to a hearing their interests would be represented, in effect, by the commission's legal counsel.
Aside from the fundamental unfairness of changing the rules mid-process, this new model will result in future complainants having to undergo the procedural hurdles, costs and delays associated with the commission's current processes while eventually having to fund their own legal representation before the tribunal.
Former Human Rights Commissioner and current Executive Director of Advocacy Resource Centre for the Handicapped (ARCH), Phyllis Gordon, anticipates that most complainants with disabilities will not have the resources to finance their own litigation, and will be forced to drop out of the tribunal process. According to Gordon, the federal commission should not be surprised if these "shocking and disturbing" changes are legally challenged.
There may soon be further, more profound changes in the federal jurisdiction. The final report of the Canadian Human Rights Review Panel released in June 2000 recommended that parties have direct access to a tribunal hearing and that a legal clinic model be adopted. However, according to Rosemary Morgan, former legal counsel to the Canadian Human Rights Commission, unless legal clinics are established regionally and are provided with legislative or regulatory funding guarantees, there is a real risk that well financed respondents will frustrate the realization of the Act's objectives.
In other jurisdictions, using Alberta and Ontario as typical examples, statistics demonstrate the extent to which victims of discrimination are being thwarted in attaining effective human rights remedies. In the fiscal year 2001-2002, the Alberta Human Rights and Citizenship Commission received an estimated 40,000 phone calls, but opened only 666 complaint files. Of the total number of complaint files reaching final disposition, only three per cent actually made it to a panel hearing. In Ontario, the volume of formal complaints filed has been purposefully controlled through a variety of measures. All of the Commission's regional offices across the province were closed by the late 90s, with inquiries and intake services being centralized in Toronto by means of an automated telephone system. According to a panel of lawyers appearing at a recent human rights conference, many of the inquiry service representatives who staff the commission's call centre actively dissuade unrepresented individuals from formally pursuing their complaints.
At the next step of the process, the standard cover letter accompanying the intake questionnaires issued to prospective complainants advises that the completed package of materials must be returned within 21 days or the commission's file will be closed, thereby creating the false impression that there is an applicable 21-day deadline beyond which individuals are precluded from filing a complaint.
The statistics confirm that the Ontario commission's strategy has been effective in minimizing the number of complaints filed. During the fiscal year 2001-2002, there were 170,145 calls received by the Commission's call centre. Inquiry service representatives spoke to 48,732 of these callers. Yet only 4,618 intake questionnaires were issued, out of which 2,438 actual complaints were filed. A further 11 per cent of the complaints filed were disposed of prior to investigation pursuant to the commission's statutory discretion to not deal with complaints in certain circumstances.
In summary, it is indisputable that change is needed to address a public human rights system that is failing the most disadvantaged members of society. However, given the pre-eminent status and public dimension that human rights have been accorded under Canadian law, the enforcement and promotion of such rights should not be relegated to the private domain.
Instead, structural change within Canada's public human rights institutions must be accompanied by the necessary resources and political mandate to ensure that human rights do not become just lofty legal principles without practical substance for those most in need.
Denise Workun is a partner with Nelligan O'Brien Payne LLPLLP in Ottawa, practising human rights and employment law.
[This article is reprinted with permission and first appeared in the June 2003 issue of The Lawyers Weekly.]