Proposed changes weaken the enforcement powers of Human Rights Commission
By Faisal Kutty , The Milli Gazette Online, 29 June 2006
At the time of its enactment in 1962, the Ontario Human Rights Code was ahead of its time in prohibiting discrimination and harassment on enumerated grounds — now numbering 16.
Sadly, the system that consists of the Ontario Human Rights Commission and the Human Rights Tribunal has not kept pace with the demands of a changing society. In fact, over the past 15 years, numerous studies, reports and consultations have concluded the system is broken.
The Dalton McGuinty government must be commended for taking the initiative to improve the system. So why did a coalition of human rights groups, community organizations and prominent individuals sign an open letter last week asking Attorney General Michael Bryant to slow down?
Clearly, the government has the right intention in introducing Bill 107 (Human Rights Code Amendment Act, 2006), but good intentions are not always good enough. In fact, the proposed amendments do little to correct the deficiencies and, in fact, weaken our human rights system even more.
The necessity of a strong human rights protection and redress system was reinforced by the 1981 Supreme Court decision in Seneca College v. Bhaduria. The court refused to recognize a tort of discrimination, and essentially recognized the exclusive jurisdiction of the Tribunal in granting remedies for human rights violations. The ostensible reasoning was that the provincial legislative initiative encapsulated in the Code superseded the common law.
Under the current system, once a complaint is filed, the commission investigates the matter and guides the complainant through the process. If the resolution is unsatisfactory to the complainant or the commission (acting in the public interest), then the commission is empowered to take the matter to the tribunal. At this stage, the commission essentially takes on the role of a prosecutor and advocates for the complainant.
Bill 107 not only eliminates this investigative and prosecutorial role by giving complainants direct access to the tribunal, but goes even further and reduces the commission's power to initiate its own complaints.
Direct access to the Tribunal may sound good in theory, but the formality of the process and lack of commission support will intimidate even more from pursuing justice. Moreover, the tribunal's expanded grounds to dismiss complaints without a hearing may speed up the process, but will not serve the cause of human rights. A hybrid system, whereby the complainant has choice of whether to proceed through the commission or go directly to the tribunal may be a better alternative.
The current system is seriously backlogged and lacks any real teeth in terms of deterrence. Far from alleviating the problems, the proposed amendments, which also include a potential user fee and no guarantee of legal representation, will preclude even more people from using the system effectively.
In the current climate of rising discrimination, racism, anti-Semitism and Islamophobia, a strong Human Rights Commission is a necessity to preserve social cohesion in our increasingly multicultural society. There is broad consensus among the front-line organizations that a number of serious issues must be reconsidered, including the following:
· Retaining and expanding the investigative role of the commission.
· Mandating adequate funding for legal representation of complainants. As it stands under the bill, such funding is discretionary.
· The tribunal must not be able to override the "due process" provisions of the Statutory Powers Procedure Act.
· The bill's expanded grounds for refusing a hearing need to be reconsidered.
· Providing authority to the tribunal to award legal costs to a successful complainant.
· Increasing the deterrence value by increasing compensation amounts. A maximum penalty of $10,000 for the most wilful and reckless violations really lacks any bite.
· Any user fees must be reconsidered or structured as a refundable one if the complaint is not frivolous and vexatious.
· Strengthening the system in policing, and sanctioning reprisals against complainants and whistleblowers.
These are just a few of the areas that need to be studied further. As a lawyer and human rights activist who has been on the front line in dealing with increasing discrimination against Muslims and the growth of Islamophobia, I can say that our system has fallen short.
More recently, in the wake of the arrests of 17 suspects in an alleged terrorist plot, I have personally fielded numerous calls from individuals who feel their rights are being violated.
Most find the existing system with all of its supports hard enough to navigate. The proposed amendments will only increase the likelihood that they will never get their "day in court," contrary to what Bryant said in introducing the bill.
At this critical juncture, we need a strong Human Rights Commission to ensure that human rights in Ontario are not only theoretical, but can practically be enforced.
The only way to ensure this is to proceed with caution, consult broadly and give sufficient opportunity for affected groups to properly make representations.
Faisal Kutty, a lawyer, is vice-chair of the Canadian Council on American Islamic Relations and general counsel for the Canadian Muslim Civil Liberties Association.