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PRINCIPLE ONE: SERVING THE PUBLIC INTEREST Human rights commissions serve a number of purposes. They are there to redress discrimination against individuals but also to correct persistent patterns of inequality, prevent discrimination before it occurs, inform the public about equality and identify emerging human rights issues. The “Catch-22" for human rights commissions is that the task of dealing with the crushing weight of individual human rights complaints means that many of these other broader purposes are not fully met. Most of the Commission’s resources are consumed in the processing of individual complaints. As a result, the other tools at the Commission’s disposal which can help transform societal behaviour – such as information, promotion, research on emerging trends and other preventive measures – receive less focus. Choosing the Right Tool for Each Case Due to resource constraints and judicial decisions, the Commission has, over the years, moved away from its preventive roots. Instead, it has focused almost solely on investigation and litigation to resolve human rights disputes. Key Question:
Which of these measures would have the greatest human rights impact? Are there any others? |
Adjudication remains important for many key human rights issues, but many other human rights disputes do not always require this adversarial framework. As the Law Commission of Canada writes, the “adjudicative process is two-sided, adversarial and backward-looking. It works to produce winners and losers.” 3 But frequently the issues that divide parties are not two-sided; they are complex. Some cases require broad systemic remedies that are not achievable at Tribunal, such as policy changes affecting an entire sector rather than just one individual respondent. Sometimes the relationship between parties is ongoing and an adversarial process might cause more acrimony and damage to the relationship. With this in mind, the Commission has begun to implement a system which helps to restore the balance and flexibility in the tools at its disposal. Some human rights issues will be better suited to voluntary compliance instruments, such as information, alternative dispute resolution or special reports. Others will be best addressed through enforcement instruments such as formal investigation and full Canadian Human Rights Tribunal hearings. The aim is to allow the best solution for the specific issue at hand. The Commission is developing a tailored approach including: - alternatives to the formal complaints route, such as special reports to Parliament or public inquiries; and
- within the complaints stream, a system of triage to ensure appropriate resources and approaches are taken to the cases which will have the greatest human rights impact.
Alternatives to Complaints: Options for Change The Commission is developing a range of non-complaint tools to address systemic human rights issues. These range from the more “inquisitorial” approaches such as public inquiries or special reports to Parliament, to more “consultative” approaches such as policy studies. Many of these instruments are already available to the Commission under its promotion mandate in the Canadian Human Rights Act. Key Question:
Which of these changes ones would you prioritize? What change would you propose in this area? |
In 2000, the Federal Review Panel proposed that the Canadian Human Rights Act and the Employment Equity Act be amended to allow +for systemic complaints – in effect, complaints affecting groups of Canadians or involving human rights issues of broad public interest. The Commission’s triage of cases and use of non-complaint tools for systemic issues meet the underlying aim of the Panel’s recommendations, but through more effective means. Although the Panel recommended that an inquiry power be explicitly added to the Canadian Human Rights Act, the Commission interprets its Act as already giving it the power to undertake policy inquiries. However, to strengthen its ability to use non-complaint tools, the Commission is proposing a number of legislative or regulatory changes, including: - enhanced powers to gather evidence in systemic inquiries;
- a requirement that the government respond within a specified period to special reports;
- confirmation that the Commission can review parliamentary bills for consistency with the Canadian Human Rights Act;
- granting of a general human rights audit power to allow a constructive, non-adversarial process under the Canadian Human Rights Act similar to that in place under the Employment Equity Act; and
- a more sound statutory basis for the Commission’s information, research and policy tools.
3 "From Restorative Justice to Transformative Justice," Law Commission of Canada, 1999, Preface.
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