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15/06/2009

Opening Remarks by Chief Commissioner, Jennifer Lynch, Q.C., during a Panel Discussion at the Canadian Association of Statutory Human Rights Agencies (CASHRA) 2009 Annual Conference

Speaking notes for

Jennifer Lynch, Q.C.

Chief Commissioner
of the
Canadian Human Rights Commission

The Federal Human Rights System:
Modern Approaches, Modern Challenges

Canadian Association of Statutory Human Rights Agencies (CASHRA)
2009 Annual Conference

Monday, June 15, 2009
Montreal, Quebec

Check Against Delivery

Introduction

It is a pleasure to share the panel with my colleagues, and to share information on how our structures and mandates support our mutual goals.

This morning I will touch briefly on our mandate and structure, and then move on to discuss what works well and what are our greatest concerns.

Structure and Mandate

The Federal Human Rights System is comprised of two bodies: The Commission, and a separate Tribunal, which holds hearings.

The purpose section of the Canada Human Rights Act written in 1977, states:

“The Purpose of this Act is to extend the laws in Canada to give effect, ...to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have” … without discrimination.

We fulfill this principle in two ways:

(1) We serve a screening function - receiving and processing complaints.

• Like all administrative bodies, we adhere to the rules of procedural fairness.
• For cases not resolved through mediation, we either dismiss the complaint or send it to the independent Canadian Human Rights Tribunal.

Our screening works well: In any given year we receive around 10,000 inquiries, from which we get about 700 formal complaints. We send about 15% to the Canadian Human Rights Tribunal.

What happens to the other 85%?

• some are not dealt with due to lack of jurisdiction, other processes being available, being out of time, or because they are frivolous and vexatious;
• about 30% are settled through the mediation we offer;
• the balance are dismissed. This is the end of the road for these complaints, although our decisions are always subject to judicial review by the Federal Court.

In recent years, we conquered a serious problem that we had with delays and backlogs. Where in 2002 we had an active caseload of 1,287 with an average age of 25 months; in 2008 we carried 568 cases with an average age of less than 9 months.

(2) We seek to advance human rights.

• With our outreach function;
• Working with employers; and
• Developing research, policies, and tools; and providing advice to Parliament.

Recent examples of these tools include:

• The Human Rights Maturity Model, which will serve as a roadmap for employers seeking to shift to a culture of human rights; and
• Our Policy and Procedures on the Accommodation of Mental Illness, which is available to other organizations as a model they can adapt for their own use.

In the 30 + years since its creation, the Commission has contributed to making so many positive changes:

• Last year, full human rights for 700,000 First Nations people were finally recognized in an amendment to our Act;
• In earlier years, the ground of sexual orientation was added and other grounds of discrimination were clarified;
• 40% of the complaints we receive are about discrimination based on disability. In addition to processing these complaints we work to cause systemic change to improve the lives of persons with disabilities, by intervening in high court cases, developing policies, pressing for accessibility in public buildings and accommodation
• Many of you will know of some of our precedent setting cases, that have made a huge difference for different communities seeking equality:
  • Via Rail, which provided accessibility for persons with disabilities who travel on trains;
  • Sangha, which confirmed that discrimination on the basis of overqualification can be discrimination on the basis of race;
  • Vade, which confirmed that human rights law applies to the House of Commons;
  • Multani, which clarified the interplay between human rights and security;
  • Bell Canada, where the Supreme Court of Canada confirmed the institutional impartiality of the Canadian Human Rights Tribunal and contributed to the development of administrative law;
  • Cole, which confirmed that breastfeeding mothers were owed a duty to accommodate;

Our strategic focus this year is the rights of Aboriginals.

The Canadian Human Rights Commission welcomes improvements to the human rights system.

These accomplishments all serve as examples that human rights, the public’s recognition of them – and the human rights system that supports it – are not static.

Part of the Commission’s responsibility is to identify societal shifts and to show leadership by developing policy or suggesting legislative change when needed to respond to and reflect our evolving society. This includes amendments to our legislation when they are needed.

And, as many of you will recall, at last year’s conference I launched a comprehensive policy review of how to prevent the harm caused by hate messages on the Internet, while respecting freedom of expression.

Last week, we presented our Special Report to Parliament to provide legislators and the Canadian public with a thorough analysis of Freedom of Expression and Hate in the Internet Age.

The Commission has concluded that both the Criminal Code and section 13 of the Canadian Human Rights Act, each with its own purpose, are effective in dealing with hate messages on the Internet.

The Report also proposes improvements to our Act to address shortcomings that were identified during consultations. Further, the Commission makes observations with respect to improving the effectiveness of the Criminal Code.

In addition, insofar as points about our processes were raised, we are addressing these internally:

• We are clarifying and publishing our operating procedures;
• We have introduced a new triage process that offers flexibility in timing and processing where we can within our legislative mandate;
• We will be issuing a policy or a Guideline that will define hatred and contempt, as per the jurisprudence, so that the layperson understands that only the most extreme hate messages on the Internet fall under section 13; 
• The Commission has a responsibility to better inform the public about its role and processes and we are already engaging in an expanded outreach strategy.

Now, let me also state that this debate is a positive and important democratic exercise.

Freedom of expression is a fundamental right in Canada. As all of you will know it is enshrined in the Canadian Charter of Rights and Freedoms. Because no right is absolute, the modern concept of rights is that of a matrix with different rights and freedoms mutually reinforcing each other to build a strong and durable human rights system.

Freedom of expression is important because words and ideas have power. That power, while overwhelmingly positive, can also be used to undermine democracy, freedom and equality. It is for this reason that Canada, and many other nations, have enacted laws to limit forms of extreme hateful expression that have very minimal value in the free exchange of ideas, but do great harm to our fellow citizens.
 
Concerns

A key concern for us is how to manage resources – our mandate and the number of organizations under our jurisdiction has expanded over the years without matching budget with expectations; then again I expect all of my colleagues also experience this.

The major concern is one that I know that most of us share: the need to strengthen the overall human rights system and ensure the public understands what we do.

Fundamental to the administration of justice is access to justice – entry points for the most vulnerable to have their voices heard.

Over time, access to administrative tribunals has been deemed to be an effective vehicle for the disenfranchised minorities, among others. Certainly all of us here who work at Commissions and Tribunals provide that vital access.

The debate is now the larger debate – beyond balancing rights – and it has become about the human rights system itself.

We are in a time when a mounting campaign suggests that equality has been achieved in Canada. Certain detractors seek to caricature the human rights system, and undermine its legacy and ability to ensure equality for all Canadians.

This began with a complaint brought against Rogers Communications by the Canadian Islamic Congress, in three jurisdictions: Federal, Ontario, and British Columbia. All three dismissed the complaint.

Even before the three complaints were dismissed, many commissions and tribunals experienced a cacophony of protest – by those who felt that exposing mainstream media organizations to formal complaints is inconsistent with Canada’s commitment to freedom of expression.

The debate moved to one of discrediting Commissions’ processes, professionalism and staff. Much of what was written was inaccurate, unfair, and at times scary:

Articles described human rights commissions and their employees in this way:

• “Gestapo”
• “human rights racket”
• “welcome to the whacky world of Canadian human rights.”
• “...(i)t sounds like a fetish club for servants of the Crown”
• “a secretive and decadent institution”

In addition to this mounting discredit for our institution:

• blogs worked to destroy our investigators and litigators’ reputations and credibility with untrue accusations;
• groundless complaints were lodged with the law societies; and
• a Commission employee’s life was threatened.

Some human rights experts tried to respond and correct this misinformation. One human rights expert who wrote a letter to a major daily paper faced an accusation in a response letter by a journalist the next day asking, “is (name of person) a drunken pedophile?”

As personal attacks were made against anyone who tried to correct the record, the number of people willing to make the effort dwindled. There is tangible proof of this: 50% of interviewees for an upcoming book on human rights have stated that they feel “chilled” about speaking up.

Ironically, those who are claiming that human rights commission’s jurisdiction over hate speech is “chilling” to freedom of expression, have successfully created their own reverse chill.

Critics of the human rights system are manipulating and misrepresenting information to further a new agenda: one that posits that human rights commissions and tribunals no longer serve a useful purpose.

Because the Maclean’s case was about a journalist, it naturally attracted the attention of many other journalists, who quite rightly see their role as a bulwark against incursions on freedom of expression.

I do believe that some are unwitting accomplices in a gross oversimplification of the issue, who flame the controversy by repeating inaccuracies.

It seems that fundamentally detractors do not believe that access to administrative tribunals in search of equality is something that our country should ensure.

As I provide examples, I ask you to listen for a thread that is causing many of us a larger concern.

Here are some examples, all from mainstream media:

• “Human rights commissions have been set up as a kind of parallel police and legal system, yet without any of the procedural safeguards, rules of evidence, or simple professional expertise of the real thing.”
• “…our human rights commissions have flown under the radar of public attention for too long, ignored by … a judiciary that has inexplicably allowed these pseudo-courts to flourish under their very noses.”
• A former Cabinet Minister recently wrote about an author’s description:
  “His story of the terrible abuse of power at the Canadian Human Rights Commission is a bone-chilling horror story. God help you if you get caught in (a human rights commission’s) crosshairs, because if it investigates you, the ordinary rules of justice don’t apply, including the normal legal protections for the accused.”

These comments clearly show misunderstanding about the separate roles of Commissions and Tribunals and our processes.

Legislatures and Parliament have begun to pay attention:

• Federally, the Justice and Human Rights Committee has a motion before it to examine the Canadian Commission’s mandate over hate on the Internet – a forum we welcome for this dialogue.
• In Alberta, the recent passing (June 2, 2009) of Bill: 44, the Human Rights, Citizenship and Multiculturalism Amendment Act maintained the Alberta Human Rights Commission’s role over hate.
• In Ontario, the abolition of the Ontario Human Rights Commission and Tribunal has become a platform issue in a current leadership campaign.

The human rights community has a responsibility to inform Canadians of the importance of our human rights system and the work yet to be done.

Today, many Canadians’ perception of our human rights system has been, in large part, informed by the misinformation and spin of our critics. Many no longer see the connection between the societal values that they cherish and the organizations that are there to promote and protect those values.

It is critically important that we step forward and inform Canadians of the vital role that the human rights system plays in our multicultural society.

And we must make it clear that Canada does still face human rights challenges.

Much remains to be done if we are to ensure that individuals can make for themselves the lives that they are able and wish to have without discrimination.

• Many groups are still the targets of egregious acts of discrimination – anti-Semitism, our Aboriginal peoples, minority groups.
• Our aging population will redefine issues surrounding disability.
• Protecting the rights of persons who experience mental illness – a disability that is finally becoming de-stigmatized – requires continued leadership from Commissions

I encourage you, members of the human rights community, to speak out when you can on these issues. I also encourage you to use your skills and expertise to ensure that informed discussion takes place, and the manner in which it takes place is respectful of our human rights system.

When rights must be balanced, so too debate about these rights should be balanced, but it is not.

Thank you.