Federal human rights system needs fixing
Racialized people are hurt most by its dysfunction, Billeh Hamud writes.
Following the protests that have swept across the United States after the death of George Floyd, an unarmed and handcuffed black man who was killed by a white police officer, Prime Minister Justin Trudeau publicly stated that we need to “to stand up against discrimination” and “that we have work to do as well in Canada.”
Unfortunately, Trudeau did not provide any specifics on the “work” that has to be done when it comes to combating racism and discrimination in Canada. Since 2015, Trudeau has engaged in mostly symbolic acts and lip service on this subject.
Most recently, in 2019, the Trudeau government outlined Canada’s Anti-Racism Strategy, with a $45-million investment that has yet to be fully utilized and implemented. This strategy also did not make any reference to reforming Canada’s broken human rights enforcement system.
Combating racism and discrimination in Canada is useless without an effective human rights system.
As a human rights lawyer, I routinely have to educate clients on the failings of the federal human rights system. Many of my clients, mostly black and brown workers, who work in federally regulated and non-unionized workplaces, were shocked to learn that they might or might not receive a hearing of their human rights claim before an impartial third party.
Under the Canadian Human Rights Act, an individual who wishes to file a human rights complaint must first file their complaint with the Canadian Human Rights Commission. The commission acts as a gatekeeper and reviews the complaint, determining whether to refer it to a hearing at the Canadian Human Rights Tribunal.
The majority of the commission’s reviewers are not legally trained and conduct cursory reviews of complaints, which results in many claimants seeking judicial review of the commission’s decisions in Federal Court, a time-consuming and costly process.
According to the commission’s 2019 annual report, it received 1,203 human rights complaints in 2019, but only referred 85 cases to the Canadian Human Rights Tribunal. Even when this small number of cases is referred to the tribunal, people often wait months or years for a hearing.
Imagine if you wanted to sue someone in court, but before a judge heard your case, a government worker who might or might not be legally trained reviewed your legal claim. Only if this government worker agreed with the merits of your claim would you be allowed to go to court for a hearing before a judge.
The sad reality is that someone seeking to challenge a parking ticket has more access to justice than a human rights complainant in Canada.
Unfortunately, this is the reality for many racialized people who wish to enforce their human rights in non-unionized and federally regulated workplaces. This is not access to justice. We are all aware that this second-class system of justice would never be tolerated by most of the population if it were applied to resolve other disputes, such as wrongful dismissal or property rights claims.
This needs to change.
A direct access system, similar to the current human rights system in Ontario, would allow claimants direct access to an impartial and third-party adjudicator, who could weigh the evidence and make a decision. Frivolous or vexatious claims would be presumptively dismissed, but all other claims would go forward before an adjudicator for a decision. Most importantly, individuals would have the right to be heard.
In 2000, Justice Gérard La Forest, a former Supreme Court of Canada justice, recommended the use of a direct access system for the Canadian Human Rights Tribunal. The United Nations Human Rights Committee also criticized Canada’s lack of an effective human rights system and held that individuals should have “full and effective access to a competent tribunal and to an effective remedy.” Although the La Forest report was widely supported in the legal community, it was quietly shelved by then-prime minister Jean Chrétien. If Trudeau is serious about combating racism and discrimination in Canada, he needs to turn his mind to changing the broken legal systems that prevent effective and timely human rights enforcement. Less talk. More action.