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Informing and Influencing Public Debate
| "Our progress is measured by our ability to be an effective influence within our rapidly changing society." |
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| Chief Commissioner Lynch speaking on June 17, 2008, during the Canadian Association of Statutory Human Rights Agencies’ 2008 Annual Conference. |
The constant and complex evolution of Canadian society directly influences the human rights landscape. The work performed by the Commission’s legal experts, investigators, auditors, advisors and researchers all contributes to identifying human rights trends. In turn, proactive research initiatives and policy development stimulate informed discussion and support organizations looking for practical ways to integrate human rights into their daily practices.
The issues highlighted within this section represent some of the current and emerging human rights challenges shaping Canadian society.
Repeal of Section 67: Full Equality of First Nations People Before the Law
This year marked a significant milestone in Canadian human rights history. The repeal of section 67 of the Canadian Human Rights Act in June 2008 lifted the 30-year exemption on complaints related to the Indian Act, and extended full human rights protection to more than 700,000 First Nations people.
Previously, section 67 impaired the Commission’s ability to deal with status issues associated with the Indian Act, housing and education decisions made by Band Councils, and by-laws or federal government decisions pursuant to the Indian Act.
A three-year transition period built into the repeal legislation means that the Canadian Human Rights Act does not yet fully apply to First Nations governments, though the Act now applies to the federal government’s administration of programs and services under the Indian Act.
The Repeal of Section 67 With the Repeal of section 67 the Commission is developing internal legal expertise in Aboriginal law. The Commission has also taken proactive steps to provide specialized training to front-line staff and developed guidelines for receiving complaints from Aboriginal people. |
Now more than ever, it is clear that the situation of First Nations people is one of the most important human rights issues confronting Canada today. The reality for many First Nations communities is ongoing poverty and an increasing gap in living conditions compared with other Canadians. Improving this situation will require concrete action by all parties.
With the repeal of section 67, First Nations people now have a new avenue to raise concerns of discrimination. As well, the establishment of a Truth and Reconciliation Commission, and the government’s apology to Aboriginal peoples for abuses experienced in residential schools are also both steps in the right direction.
The repeal of section 67 marks a beginning, not an end. The achievement of repeal brings new challenges, and heightened responsibility. One key responsibility is to increase awareness and understanding of human rights principles within the context of the unique histories and cultures of First Nations in Canada. This enormous task will require a new outlook on collective rights as they are balanced with individual rights and how they fit in the bigger perspective of advancing the human rights of Aboriginal peoples in Canada.
The three-year transition period provides an opportunity for First Nations governments to examine policies and practices to ensure that they respect and recognize the human rights of First Nations people in Canada under the Canadian Human Rights Act.
As we progress towards implementing repeal, the Commission looks forward to working closely with First Nations organizations to build a system that reflects and respects their cultures and traditional laws. Many communities already have their own ways of protecting these rights. The Commission and the Canadian public have much to learn from the rich history of traditional methods, which include healing circles and other elder-assisted processes.
Human rights issues are best resolved in the communities where they occur. Working together, we can ensure that the appropriate processes, resources and capacity are in place to do so.
Mental Health It has been estimated that mental illness, in particular depression, will soon rank as the leading source of workplace disability. If not managed properly, workplace-related mental health issues can lead to increased rates or levels of illness and result in absenteeism, tension and conflicts between colleagues. Employee performance may deteriorate and morale may decline. Furthermore, negative attitudes toward mental illness lead to stereotypes, fear and discrimination. The stigma associated with mental illness can discourage or delay individuals from seeking treatment and can have major impact on a person’s professional life. As an employer, the Commission has responded to this emerging issue by creating an internal policy on mental health in the workplace. The policy outlines the accommodation process and provides guidance to help managers take proactive steps to ensure employees with a mental illness are offered appropriate accommodation. Showcased at the Commission’s 2008 Discrimination Prevention Forum in October, the policy has been made available to other organizations as a model they can adapt for their own use. |
Freedom of Expression and Hate on the Internet
Throughout 2008 there was a vigorous debate about freedom of expression and section 13 of the Canadian Human Rights Act – the section prohibiting the electronic transmission of hate messages.
Beyond the heated rhetoric, the current debate is part of a centuries-old question on where exactly the line should be drawn between one citizen’s freedom of speech and another citizen’s right to be protected from harm caused by vilification and hatred.
The freedom to express ideas and opinions is fundamental to both democracy and human rights. Exercising the right to freedom of expression takes place within a context of competing values. With freedom comes responsibility. Human rights are not hierarchical; in fact the rights structure is more accurately viewed as a matrix. As the 1993 United Nations Vienna Declaration explained: "All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis."
Acknowledging that no right is absolute, it is up to legislatures and the courts to strike a balance when one right conflicts with another. The Supreme Court recognized this in its 1990 Taylor decision. The Court affirmed that the Canadian Charter of Rights and Freedoms allows for limitations on extreme forms of speech in order to protect other fundamental Charter values:
... It [hate speech] undermines the dignity and self-worth of target group members and ... contributes to disharmonious relations among various racial, cultural and religious groups, as a result eroding the tolerance and open-mindedness that must flourish in a multicultural society which is committed to the idea of equality...
Freedom of expression and section 13 of the Canadian Human Rights Act have proven to be facets of our society that continue to evolve. In 2001, the Act was amended to prohibit the use of the Internet or other electronic communication tools to disseminate hatred.
The rapid shift from print to electronic news meant that the media began operating inside the jurisdiction of section 13. The impact of this shift may not have been fully foreseen when the Act was amended.
The Review of Section 13 – the Moon Report In 2008 the Commission initiated a comprehensive review of section 13 and its role in dealing with hate on the Internet. The review was designed to assess whether the current model is the best approach to dealing with electronic hate in Canada. The Commission retained leading constitutional law expert Richard Moon to conduct an independent study, as an integral component of the broader policy review. Released in November, Professor Moon’s report recommends that section 13 be repealed, leaving the police and the courts to handle all extreme forms of expression. The Report also recommends that if section 13 is not repealed, it should be reshaped to more closely resemble a criminal restriction on hate speech. Professor Moon’s report also confirmed that while perceptions exist that the Commission targets "offensive speech," this has not been the case. In fact, the Commission uses a narrow definition of "hate" derived from jurisprudence. His review found that: "section 13 cases that have been sent by the CHRC to the Tribunal and in which the Tribunal has found a breach of the section have almost all involved expression that is so extreme and hateful that it may be seen as advocating or justifying violence against the members of an identifiable group." The Commission is preparing to deliver a Special Report to Parliament in 2009 that will address what needs to change for the Canadian Human Rights Act to remain effective and that will suggest new collaborative approaches to combat hate speech. |
Throughout 2008, the Commission welcomed the debate on how to best address hate on the Internet. Dedicated to ensuring that the Canadian Human Rights Act remains effective, the Commission’s preliminary concern is helping all Canadians live with dignity and respect. Prohibiting hate is part of that responsibility.
Beyond human rights laws and the Criminal Code, finding the right balance between freedom of expression and the dignity and equality of all Canadians is a responsibility that belongs to all of us.
This issue raises the question: what kind of society do we want to live in? It calls into question whether to give free reign to extreme forms of expression, or take careful and reasonable measures to ensure that all Canadians can live in dignity and respect. That is the real challenge our society and the Commission must face.
National Security and the Protection of Human Rights
Accountability is the driving principle behind our parliamentary democracy. It assures that the people hold governments accountable before Parliament for the responsibilities entrusted to them. One of these responsibilities is the obligation to ensure national security while protecting human rights.
According to the 2008 Speech from the Throne, "National security is the most fundamental duty of any national government to its citizens." Parliament has created a security community made up of organizations designed to protect our freedom, democracy, human rights and the rule of law. Their mandates vary from police services offered by the Royal Canadian Mounted Police, the issuance of travel documents by Passport Canada, to border control by the Canada Border Services Agency. Since 2001, with the adoption of the Anti-Terrorism Act, their responsibilities have grown, posing new challenges to the protection of human rights.
Human rights as defined by the Canadian Human Rights Act are about equal treatment for all. However, in an era of heightened security, this equality may be subject to abuse, especially where appropriate accountability measures are not in place. Accountability is a powerful means to prevent such violations, and it begins with recording each decision taken in the name of national security.
Very few people would deliberately treat others in a manner contrary to the Canadian Human Rights Act. Yet in the absence of accurate and factual information, people are prone to fall back on personal stereotypes or profiles. That is why collecting comprehensive data on such things as travel document requests, referrals to secondary search at the border, or stops for inspection are so important. Data collection permits a thorough analysis of the types of decisions made and their impact. Recording such decisions is necessary if organizations are to be held accountable by means of reporting their activities. This would also allow national security monitoring bodies to do their jobs. To date, security agencies and their oversight bodies have all recognized their responsibilities regarding the protection of human rights, but reporting on human rights is not required and remains ad hoc.
The Commission recognizes and appreciates the crucial role played by the security community. Canada’s success as a diverse society will be measured by the government’s ability to safeguard its citizens while protecting human rights.
Many abuses and discriminatory practices can be prevented if the systems in place are designed in such a way as to ensure measures of accountability. Only then will national security agencies and their monitoring bodies be able to assure the public that their human rights are being protected.
The National Security Research Initiative The Commission has completed three of four research reports that explore various facets of the relationship between national security and human rights. In studying the issue, the Commission has examined current and potential points of friction between national security practices and human rights protection, the extent to which national security agencies and their monitoring bodies consider and report on human rights, and whether profiling is an effective tool in ensuring security. Still to come is a study of the potential areas of discrimination in the certification of a person’s identity. The first three reports are available online. |
Commission representatives attended key events and conferences around the country hosted by partners of the human rights community. Whether participating in spirited debates about freedom of expression, describing the state of racism in Canada or celebrating the United Nations International Day of Persons with Disabilities, the Commission’s spokespeople provided insight and perspective on current and emerging human rights issues.
This year marked the 60th Anniversary of the Universal Declaration of Human Rights. The Commission participated in a number of events to mark the anniversary, and hosted an event to raise awareness of human rights and reinvigorate peoples’ commitment to the fundamental concepts of personal freedom and respect for the dignity of each individual. The Commission also had the honour of participating in the national Remembrance Day ceremony where the Chief Commissioner laid a wreath to pay special tribute to the men and women who have served so valiantly to uphold Canada’s commitment to universal freedom, dignity and justice.
Speeches delivered by members of the Commission are available on the Commission’s website.
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Public Information The Commission’s website and publications are an increasingly important source of information for Commission stakeholders and the public. Increased outreach and public awareness intitiatives have encouraged a growing number of Canadians to visit our website and request printed copies of our publications. In 2008, the Commission distributed 88,196 publications and its website was visited 2,165,817 times. Links
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