New Approaches to the Protection of Human Rights in Canada

The Canadian Human Rights Commission with a quarter of a century experience under its belt is at a threshold where it most certainly has to review its functioning to make effective interventions. Realising this, the Commission has decided to launch new policies, which will significantly alter its approach to human rights and its impact on society.

Many Commonwealth countries with bodies administering their own human rights legislation will find the Canadian exercise an interesting one to watch. The new model aims at realigning the current imbalance of the old, essentially an emphasis on litigation and conflict, and focusing its new effort on mediation and prevention.

The Canadian Human Rights Commission has looked into the application of the original legislation of 1977, how well it worked and what changes have to be made to tailor it to counter the pressures of demand, demographics and public expectation.

“Our new package of reforms anticipates rebalancing the mix between mediated and traditionally-managed cases, addressing the backlog and liberating our energies and resources to focus more on systemic, egregious and high-impact human rights issues,” said Mary Gusella, Chief Commissioner of the Canadian Association of Statutory Human Rights Agencies.

However, changing a system, which has grown over 25 years of accumulated jurisprudence, processes and client expectations, is not without risks. New human rights challenges have appeared and increasing demands are made on public institutions to deliver results. Issues have become more complex and require a continuum of compliance and enforcement tools to adequately respond to the expectations. The new management system is said to be aimed at meeting these demands and allowing the commission to fulfil the (old) mandate in a manner, which delivers results for today.

Ms. Gusella emphasised that the Commission faced significantly different and more demands than when it was first created in 1978. “In 2002, the number of signed complaints rose by 39%, from 574 to 800. Our projections for 2003 showed that this number could rise even higher, to as many as 950-signed complaints. Some categories have risen even more sharply — for instance complaints citing disability rose by 85% last year. At the same time as cases are increasing, budgets are not.” The situation was clearly unsustainable and it was clear that new approaches were needed.

Since 1977 when the Canadian Human Rights Act was passed, the human rights landscape has changed considerably in a number of ways:

Despite this “landscape” change, the Act and the human rights institutional framework have remained largely as they were in 1977. The same institutions — the Commission, the Human Rights Tribunal and the courts — are still there and all still have roughly the same tools to deal with what have become very different human rights challenges. Compounding the situation is the fact that the relative balance among these human rights institutions has shifted over the years.

At its origin in 1978, the Canadian Human Rights Act was remedial, aimed not only at deterring offenders but also at encouraging compliance. The Commission was given the power, in addition to the individual complaints function, to conduct research, foster greater understanding of discrimination and educate the public about equality.

Parliament did a good job when it crafted the Canadian Human Rights Act. The legislation was intentionally made to be flexible and give the Commission a full range of tools to adapt to new circumstances and changing demands. Resource constraints and judicial decisions over the years, however, have pushed CHRC away from its administrative, remedial roots towards enforcement, focusing more on investigation and litigation to resolve human rights disputes. In doing so, in some respects the courts have shifted the balance found in the Canadian Human Rights Act between private and public interests in favour of private interests. In many ways the human rights system has strayed from the original intent and has not met the full potential and range of the Canadian Human Rights Act.

What was the challenge and direction of needed change, and in what spirit and vision? The original purposes of human rights commissions were to:

Canadians expect tax-supported services to be effective, efficient, timely and fair. The existing model of litigation and conflict is and always will be incapable of satisfying this legitimate demand. To respond, the Commission is focusing on a management approach that will entail a client-centred, result-oriented set of principles for the human rights system.

The Commission while adopting new methods of alternate dispute resolution through mediation will continue to use the traditional model of investigation and litigation. The Commission understands that some cases can only be resolved through litigation. In other cases, for instance where the resolution of a case might bring about a change in the law or result in policies that will affect many people, litigation may be the optimal route to effect societal change.

Investigation and litigation are blunt instruments. Some systemic issues are better suited to non-complaints processes and the Commission is developing new tools outside of the complaints system, such as public reports and policy inquiries, to respond to systemic human rights issues, identify their root causes and make recommendations for change. More research, public dialogue education and awareness are also key to addressing systemic discrimination.

Summing up the catalytic change in the Commission, Ms. Gusella said that, “If new legislative amendments are indeed required to bring about fundamental change in the human rights system, we would hope that any new legislated structure would be consistent with the mediation and prevention model we have set out. A move towards a model which is more court-like and adversarial would, in our view, be a move in the wrong direction.”