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PRINCIPLE FOUR: A PREVENTIVE AND FORWARD-LOOKING SYSTEM Prevention: Future Directions Key Questions: What are the elements of a good prevention strategy? Is the Web a good tool to be used in this area of activity? Are there other communication tools that could be used? What internal mechanisms have you or would you develop to prevent complaints to the CHRC? |
The Commission is committed to a broader strategy of prevention that seeks to work with the major respondents and assist them in putting in place a culture of human rights in the workplace. The Commission is proposing that departments and other federal entities should ensure that their internal responsibility systems dealing with conflicts in the workplace are consistent with human rights. The CHRA Review Panel, in its proposals regarding internal responsibility systems, suggested that a number of elements be in place. These include policies and programs to promote equality, training for all managers and employees, monitoring and documenting of equality issues, liaison with the Commission and other bodies, and management-labour cooperation to ensure the balance and independence of the internal process. In addition to internal responsibility systems, employers should train managers and employees, and ensure strong workplace policies and awareness of human rights standards and remedies to prevent human rights abuses. The Commission is currently designing a human rights prevention function which will assist employers in this regard. A Forward-Looking System: Options for Change A primary objective of human rights legislation is to change persistent patterns of inequality and identify emerging human rights issues. It has been recommended that the Commission should improve its ability to provide qualitative information about the state of human rights in Canada. All of these recommendations point to the need to improve the Commission’s policy research capacity. Key Questions: Which of these proactive tools would be most effective? Are there any other tools or proactive strategies that you would recommend? What indicators do you consider most critical for measuring human rights progress? What information would you find useful in a Human Rights Report Card? |
The Commission’s new approach to human rights is guided by a desire to strengthen the information and voluntary compliance functions. Many of the policy inquiries and studies mentioned above will fulfil the purpose of identifying emerging and pressing human rights issues. Options for new policy tools include the development of human rights impact analysis to allow the Commission, Parliament and other stakeholders to assess the human rights effect of new government initiatives or legislation. Other options include a periodic report on the state of human rights in Canada by developing human rights indicators to allow assessment of progress.
PRINCIPLE FIVE: ENSURING GOOD GOVERNANCE Independence and Impartiality Current Situation Part of the mandate of the Canadian Human Rights Commission is to ensure that all employees and recipients of services under federal jurisdiction have access to a system for resolving human rights complaints. As a result of its complaint and audit activities, the Commission is often involved in proceedings where the federal government is a party. In fact, over 50% of signed complaints received by the Commission name a federal department, agency or Crown corporation as the respondent. In addition, the Commission appears before parliamentary committees and other bodies to comment on proposed government legislation and programs. Key Questions Is a stronger relationship with Parliament the most viable means of safeguarding the Commission's independence while ensuring strong accountability? How would this help your organization or support your mandate? What other means could help safeguard the Commission's independence while ensuring strong accountability? |
The independence of the Commission is key. The UN Principles Relating to the Status of National Institutions for the Protection and Promotion of Human Rights (Paris Principles) guarantee the independence and impartiality of national human rights institutions. The concern in Canada is that the relationship between the Commission and government is structured in a manner which can raise perceptions of conflict. The lawyers who represent the federal government before the Canadian Human Rights Tribunal come from the Department of Justice. This is the same department that approves Commission budgets and Treasury Board submissions. It is also the Department of Justice that is responsible for proposing amendments to the Canadian Human Rights Act. The Treasury Board is the official employer of all public servants and is implicated in many cases dealing with employment in the public service. The Treasury Board is also the central agency that oversees the Commission’s budget and mandates our reporting requirements. Audits carried out under the Employment Equity Act often challenge policies and programs for which the Treasury Board is responsible. The governance issue is clear – the Commission must often be critical of the government, even opposing it before tribunals and courts. The Commission is not, like a federal department, an instrument of government policy. This calls for a much different system of responsibility and accountability. Options for Change The Commission believes that the solution is to strengthen the relationship between it and Parliament in terms of financing and reporting. A strong relationship with Parliament will help to enhance the Commission’s independence while ensuring accountability. It will also help to address the “democratic deficit” by increasing Parliament’s engagement in the Commission’s mandate. Other federal agencies, such as the Office of the Auditor General and the Office of the Chief Electoral Officer, have arrangements that ensure a closer relationship with Parliament. The Commission believes that many of these provisions could apply equally to this organization and doing so would strengthen overall human rights governance. Coherent Governance Current Situation A related issue is the coherence of the overall human rights governance structure. The Canadian Human Rights Act is a fundamental and quasi-constitutional law. It enshrines basic rights that are fundamental to Canadian democracy. Where there is conflict between the Act and other legislation, the Act has primacy. It is therefore important to ensure that the mandate of the Commission is not unduly encroached upon by other agencies or tribunals. Key Question: How important is it to your organization/mandate for the Commission to pursue means by which to ensure overall coherence with regards to the protection of human rights? |
Otherwise, the federal government could develop a patchwork of human rights standards. Depending on which body is interpreting them, the specialized knowledge of the Canadian Human Rights Commission and the Tribunal would not be brought to bear on human rights disputes and the independence of the Commission would be diminished. Increasingly, however, the Commission has noted examples of other federal agencies making determinations that, in whole or in part, touch upon fundamental issues of human rights. These decisions are not always made according to the same standards and jurisprudence that would be applied by the Commission or the Tribunal. Options for Change The Commission does not believe it should have exclusive jurisdiction over all matters dealing with human rights. Specialized bodies have an important role. The point is to ensure that there is an overall coherence with regard to the protection of human rights. The Commission sees two options to ensure overlap is reduced and coherence enhanced: - Parliament may wish to consider amending the Canadian Human Rights Act to ensure that the Commission has the opportunity to take jurisdiction, if necessary, to advance human rights when fundamental issues relating to the interpretation of the Act are raised in other fora; and
- the Commission will continue to work with other regulatory bodies, federal departments, agencies and Crown corporations, and federally regulated employers to enhance partnerships, through Memoranda of Understanding such as those concluded with the Clerk of the Privy Council and the Canadian Transportation Agency, to promote implementation of human rights standards.
CONCLUSION At this stage, the ideas for legislative change set out above are presented as options only. More conversations with stakeholders and with Parliament are required before they can be fully defined. The Commission’s aim is to build a system that serves human rights better: one that meets many of the underlying objectives of the 2000 CHRA Review Panel, Promoting Equality: A New Vision, but in a manner which avoids many of the pitfalls of the direct access claims model.
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