Keynote Address: “Social condition: The next frontier of access to human rights justice”


Speaking Notes

Charlotte-Anne Malischewski

Interim Chief Commissioner
Canadian Human Rights Commission

Social condition: The next frontier of access to human rights justice

Keynote Address: Canadian Institute’s 24th Annual Conference on Advanced Administrative Law & Practice

October 30, 2024

11:15 a.m. – 11:45 a.m.

Hilton Garden Inn, Ottawa

30 min

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Thank you so much for that warm introduction! And thank you to the Canadian Institute and both Chairs —Michael and Alyssa --- for inviting the Commission to be part of this conference again.

It is so great to be invited here among so many administrative law colleagues, and to share in this unique work with all of you.

As mentioned, my name is Charlotte-Anne Malischewski, and for two years now I have been serving as the Interim Chief Commissioner of the Canadian Human Rights Commission.

And before I go any further, it’s important to me to acknowledge that we are gathered on the unceded territory of the Anishinaabe Algonquin Nation. This land is the traditional home to the Algonquin people, and their presence continues to shape and enrich these lands and waters of what is now known as Ottawa.

Many of you are joining me virtually from other parts of the country so I also want to acknowledge and honour that from coast to coast to coast, we are meeting on the ancestral lands of many Indigenous people whose culture and presence have nurtured and continue to nurture this land.

I hope this acknowledgment is a meaningful reminder in the conversations we have today of the importance of eliminating pervasive barriers and discrimination still faced by Indigenous peoples. We must continue this work of reconciliation with appropriate humility, openness, and action.

Today I’m going to focus my remarks on social condition and socioeconomic rights — an issue that touches so many people in Canada.

I believe it is time for a renewed conversation about better protections at the federal level for people’s socioeconomic rights, and the right to live free from discrimination based on one’s economic or social condition.

To guide this renewed conversation, I want to offer some key questions.

But before I do, let me tell you a bit more about the work we are doing at the Canadian Human Rights Commission, where — over the past two years — I have met some of the most caring and compassionate of my career.

The Commission is Canada’s national human rights institution.

Our job is to support and promote the progressive realization of the human rights and freedoms of every person in Canada.

We do this in three main ways…

We advocate for human rights in Canada by speaking out on the issues and providing impartial advice to Parliament that brings a human rights lens to how it can ensure that its laws safely guard people’s rights, people’s freedoms, people’s dignity.

We also receive and help resolve human rights complaints from people in Canada who tell us they have experienced discrimination, based one any of the 13 grounds listed in our Canadian Human Rights Act.

We are actively engaged in substantial modernization efforts to ensure efficacy and equity, to ensure that the people in Canada have a free and accessible pathway to human rights justice.

And, finally and very importantly, we help prevent discrimination.

We do this by mediating human rights disputes that often lead to systemic remedies.

And we do this by working closely with federally regulated employers to ensure they put measures in place, in line with Canadian law, that help remove barriers to pay equity, to employment equity, to accessibility and to adequate housing ¬¬¬¬— especially for equity-deserving groups in Canada.

This prevention work has long been a core part of our work, and in recent years — with the addition of new mandates at the Commission and the strengthening of our mediation process as part of our modernization — this prevention work has deepened and broadened.

Our mandate is vast.

We represent the public interest on a variety of human rights issues.

Many of the human rights disputes that have come through our doors have led to great changes for Canada.

From women being able to serve in combat missions, 
…to closed captioning on Canadian television,
…to accessible bank tellers and accessible voting stations, 
…to breastfeeding in the workplace,
…to ongoing discussions around child welfare services in First Nations Communities,
…these all began as complaints under the Canadian Human Rights Act.

The Commission’s legal branch is working hard every day, helping parties work toward meaningful settlements, litigating cases, and representing the public interest in human rights cases that the Commission refers to the Canadian Human Rights Tribunal.

As part of our ongoing commitment to efficient and effective service delivery, we are implementing a more focused approach to litigation and increasing our efforts to support parties in reaching settlements.

As I’m sure you’ll agree, open dialogue empowers the parties to take ownership of the conflict resolution process. It allows people to share their experiences and be heard, and it helps parties move beyond entrenched positions to find realistic solutions.

Last year alone, our mediation and legal services helped resolve over 200 cases.

While the terms of most settlements will never be shared publicly, they have brought real change in people’s lives.

In some cases, the parties will agree to make their settlement public, and we share those on our website to provide examples of successful resolutions.

For example, last year, we helped bring to resolution in three major cases of systemic racism. Each of them began as individual complaints from employees at CSIS, the RCMP and the National Film Board.

This past year, the Commission helped parties reach the first human rights settlement since the implementation of the Honourable Louise Arbour’s recommendations that are aimed at addressing sexual misconduct in the Canadian Armed Forces.

And there are so many more settlements – some personal, many systemic, which the parties elect to keep confidential.

After two years in this role, I am struck by two things:

  • how regrettably common discrimination continues to be in Canada.
  • and how important it is for there to be an independent recourse for people to access human rights justice.

I am inspired by the courage and dedication people have to use the law to seek justice.

And how one individual’s complaint can bring about meaningful systemic change for many.

At its core, human rights justice is about dignity.

This brings me to what I want to talk to you about today.

The inability to afford housing, access healthcare and afford even basic sustenance — erodes an individual’s sense of dignity and agency.

For many people with disabilities, systemic inequality results in inadequate access to services, which means that their fundamental rights continue to be denied — and their dignity diminished.

We have even heard accounts in recent years of people with disabilities opting for medical assistance in dying because they can’t get the health care they need. They can’t find accessible housing. They can’t afford crucial medication.

In other words, they were not able to live with dignity, so they chose to die with dignity.

There must be a better way.

Human rights, living free from discrimination, and fundamental socioeconomic rights go hand in hand.

And so, adding the ground of “social condition” to the Canadian Human Rights Act has been a topic of discussion at the Commission for decades.

Through the years, it has proven to be incredibly complex.

Professor Wayne MacKay in his 2009 study on the topic referred to it as “the murky waters surrounding the recognition of social condition as a ground of human rights discrimination.”

The Commission’s founding legislation, the Canadian Human Rights Act, came into force just one year after Canada’s 1976 ratification of the International Covenant on Economic, Social and Cultural Rights.

And yet, protections for people living in poverty and for people who experience discrimination because of their social condition were not included.

The Commission has been raising this legal gap ever since.

Since 1976, when Canada ratified the International Covenant on Economic, Social and Cultural Rights, the government has had an obligation to look at poverty as a human rights issue.

Almost 50 years have passed.

Every provincial and territorial human rights code in Canada has some form of protection against discrimination based on a person’s social and economic standing, or social condition.

No such protections are enshrined at the federal level.

(pause)

It is no secret that the pandemic has widened the circle of vulnerability in Canada.

We are experiencing a housing crisis; our food banks are over-run.

People are struggling.

And there is a growing consensus that Canada needs to do more to realize the right of every person to live with dignity.

For people who are already facing other forms of discrimination, having to fight for their basic social and economic rights becomes yet another obstacle to overcome.

It is time for a fresh look — through a post-pandemic lens — at how Canada’s administrative laws can contribute to addressing the profound disparities in access to adequate food, housing, health, education, and other social and economic rights…

…and better protect people in Canada from discrimination based upon their social condition.

Our job — here together — is to help guide the Government on how to best realize human rights justice for people in Canada. And to do that, we need to revive the discussion on how to address the gap in legal protections for socioeconomic rights.

To add to that discussion today, I bring three questions:

First: How do we ensure that the modern language and definition of social condition are as holistic and inclusive as possible?

Second: How can we ensure that any new protections prioritize the human rights of equity-deserving groups, and people who have long been facing disproportionate inequality in Canada?

And third: What role does federal administrative law have in protecting people’s socioeconomic rights, and what approach is required? I have some ideas.

But first, let’s talk about language.

The phrase “social condition” has been around a long time. And there are many different definitions.

Quebec, the first province to have the ground of social condition in their human rights code, refers to a person’s “economic rank or social standing.”

And similarly, New Brunswick’s Human Rights Act defines it as “the condition of inclusion of the individual in a socially identifiable group that suffers from social or economic disadvantage.”

Through their experiences over the decades in defining the term, the provinces have taught us that social condition must be approached holistically.

That it does not and should not exist in isolation.

Because when our most basic rights are not met, our other rights have little meaning.

It’s why the ground of social condition carries so much weight.

Last year, my friend and colleague, Marie-Josée Houle, Canada’s Federal Housing Advocate spoke about social condition at the John Humphrey Centre.

She said:

“Adding the ground of social condition to the Canadian Human Rights Act is about much more than access to housing, access to health care, access to education.

That it is about that broader sum of all the parts that taken together add up to a person’s sense of personal dignity and autonomy.

That it is about addressing the systemic cycle of poverty that so disproportionately affects groups that already experience multiple intersecting forms of discrimination.

That it is about seeing and acknowledging the full picture of a person’s lived experience.”

In so many cases, one’s social condition is inextricable from one’s race, one’s disability, one’s experience with colonialism, one’s gender or gender expression, and other aspects of one’s identity.

I have heard intersectional discrimination referred to as “death by a thousand cuts.”

It’s where these cuts converge that unique forms of discrimination exist and demand nuanced responses.

For example, an Indigenous person who is living with a disability and experiencing poverty may face exclusion from:

  • cultural spaces that lack physical accessibility;
  • disability support services that lack cultural sensitivity; and
  • poverty reduction programs that do not account for the unique needs of Indigenous people with disabilities.

This experience differs significantly from the forms of exclusion an affluent person who is indigenous or living with a disability might face.

Intersecting forms of discrimination create a multifaceted experience of disadvantage, making it even harder for individuals to overcome socioeconomic barriers.

And that brings me to my second point:

The people who are most in need of the stronger socioeconomic protections at the federal level are the same people who have historically faced the greatest barriers to equality.

For example, people with disabilities are twice as likely to live in poverty than those without disabilities.

The Commission is shedding light on this issue through the work we are doing as Canada’s designated body responsible for monitoring Canada’s implementation of the UN Convention on the Rights of Persons with Disabilities.

Technically, this part of our work is known as the National Monitoring Mechanism.

It is a designation that we have held since 2019, though in many ways we had been doing the work longer than that.

The United Nations Convention on the Rights of Persons with Disabilities promotes and protects human rights for people with disabilities.

The Commission is in charge of keeping track of, or monitoring, how the Convention is put into action in Canada. It is the Commission's job to identify gaps and problems that need to be fixed.

So many of the gaps we are encountering are socioeconomic gaps.

In 2020, we asked people with disabilities what issues are most important for them.

Many people said housing was a top issue.

People with disabilities in Canada face many barriers to housing. Many people are forced to live in institutions.

They can’t get the support they need to live independently.

Many people can’t find safe and accessible homes.

People are struggling to pay their rent.

People often experience homelessness because of these barriers.

And as I already mentioned, in some troubling instances, people with disabilities have turned to Medical Assistance in Dying because they couldn’t access housing and the support they need.

This needs to change.

This year, the Commission launched a Monitoring Framework on the right to adequate housing for people with disabilities. In partnership with Canada’s Federal Housing Advocate, the project is a deep dive into the public data.

We are collecting information about the housing situation of people with disabilities in Canada.

And we are using this information to advocate for change.

Already, the data is confirming that people with disabilities in Canada are overrepresented in all aspects of inadequate housing and homelessness.

The data shows that people with disabilities are:

  • four times more likely to experience homelessness.
  • more likely to become homeless due to violence.
  • more likely to live in unaffordable housing.
  • often living in homes that do not have the physical aids they need.

In that same 2009 study I already mentioned earlier about protecting socio-economic rights, Professor MacKay cited that: poverty is frequently the result of other forms of inequality, such as those based on race or disability.

For many Indigenous, Black and other racialized people in Canada, the racism and the socioeconomic barriers they encounter in their daily lives are intertwined. And oftentimes, it is hard to separate one from the other.

Because if you are denied access to education, access to employment, access to bank loans, or chances of employment or promotion because of the colour of your skin, it is very easy to find oneself in dire economic circumstances.

And if you find yourself in those dire economic circumstances, it is a steeper climb out if you are having to contend with systemic and interpersonal racism along the mount.

There is an emerging area of study into a particular form of socioeconomic-based racism that we have been researching and looking at closely at the Commission.

It has to do with the actual geographic location of where a person lives — and how that location impacts their basic human rights and their sense of freedom.

Dr. Ingrid Waldron — author of “There’s Something In the Water” — expressed it this way when we interviewed her for one of our Annual Reports. She said, “In Canada, your postal code determines your health.”

This human right issue is called environmental racism or environmental injustice.

Essentially, it describes a destructive pattern in our society in which Indigenous, Black and other racialized communities are having to live in closer proximity to polluting industries and environmentally hazardous activities.

It describes the negative impacts that living in those areas has on low-income residents’ health and human rights.

It’s a dire issue, but there is some hopeful news.

Just this year, Parliament finally passed bill C-226, An Act respecting the development of a national strategy to assess, prevent and address environmental racism and to advance environmental justice.

This was a victory that we and so many other advocates had been urging.

It was just last year that we held a roundtable conversation with activists, advocates, academics, and people with lived experience to hear from them on this issue.

They told us about the complex, interconnected factors involved in environmental racism in Canada, including the role of colonialism and the disregard for Indigenous knowledge.

They told us about the negative effect of environmental racism on the human right to adequate housing and on the health of impacted communities and individuals.

One expert participant told us:

“The standard that we have, that low-income people live in polluted environments, is really the target. In my opinion, we can change that standard and this is where we need to focus.”

The passing of Bill C-226 is a step in the right direction.

But environmental racism and environmental injustice must continue to be a fundamental part of any conversation on how to ensure all people in Canada can be free from discrimination based on their social condition.

So I’ve touched on the need for a holistic definition of social condition.

I’ve touched on the need to understand the overlapping barriers to equality and how for equity-deserving groups, social condition must be understood in relation to other forms of discrimination.

There is a clear argument to be made that expanding human rights protections leads to improved substantive equality.

When it comes better protections for people in Canada against discrimination based on social condition, an obvious choice is to add it as an additional ground of discrimination under the Canadian Human Rights Act.

Every provincial and territorial human rights code in Canada has some form of protection against discrimination based on a person's social and economic standing, or social condition.

Why not enshrine the same protection at the federal level?

Many of the arguments against doing so are about the kinds of practical challenges that could arise. Challenges we have such as:

…complexity around defining this kind of discrimination;
… strains on our already limited resources that could cause backlogs —possibly resulting from new complaints on this ground — that could overwhelm our systems, and the Tribunal’s;
… the potential for this new ground to overshadow other, existing grounds of discrimination; and 
… the risk that lengthy litigation could ensue in relation to the definition or application of the ground.

Some will also argue that human rights legislation is the wrong tool to address the problem, that section 15 of the Charter — for example — is better suited to address the problem than the lens of anti-discrimination law.

To that, I would suggest that the Canadian Human Rights Act has never been the exclusive tool to address human rights in the federal jurisdiction.

It is one tool amongst many.

A new ground would be the same.

Indeed, scholars in favour of adding a new ground have countered that the inherent flexibility and accessibility of human rights institutions position us to be an important part of a larger, holistic package of protections in this socioeconomic area of human rights.

With that, as I conclude, I invite us all — as administrative law professionals — to turn our minds to what human rights justice could look like if we recognized the fundamental importance of socio-economic rights.

Administrative tribunals, agencies, review boards, lawyers and advocates, and human rights organizations — we are all looking at this issue from a different vantage point.

So, together we can build a fuller picture, to present a clear case for justice and what is in the best public interest.

The problem of poverty, and socio-economic discrimination in Canada is significant.

In response, the concept of social condition is broad.

It touches so many aspects of human life, human dignity, human freedom.

And it has far-reaching, overlapping human rights implications.

So how could we possibly expect that discrimination based on such a broad issue be tackled with anything less than a multifaceted, holistic and collective approach?

An approach that includes a clear path to human rights justice, and a complaints function, but one that also includes proactive actions to improve our housing crisis, social supports and community-based structures to help people improve their lives.

It’s a conversation that I’m eager to continue with all of you.

Thank you.

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