intentions are not good enough
changes weaken the enforcement powers of Human Rights Commission
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
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superseded the common law.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
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
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
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
lawyer, is vice-chair of the Canadian Council on American Islamic
Relations and general counsel for the Canadian Muslim Civil Liberties