by Shelagh Day
In the Yukon News of March 5, Graham Lang says: “Let’s abolish the Yukon Human Rights Commission.” This is a foolish idea, and Mr. Lang’s reasoning is full of errors.
I speak from experience. In 2002, British Columbia abolished its human rights commission, and I have observed the impact. There were some legitimate criticisms of the human rights system at the time; but abolishing the human rights commission was not the answer. A decade later, British Columbia is a poorer place because we have no institutional processes, except complaint adjudication, for addressing discrimination. No public education, no prevention work, no research, no intervention or mediation in community conflicts.
The public education and prevention work of the human rights commission is sorely missed, not just by groups that feel the brunt of discrimination in our province, but also by employers and service providers who miss the capacity of the commission to provide them with guidelines, protocols, training and practical hands-on advice about how to make their workplaces and services discrimination-free.
Mr. Lang says that the Yukon human rights system is a “shadow” rather than a “normal” justice system. He implies that because the human rights commission is authorized to screen out complaints that are not within its jurisdiction and to recommend hearing of complaints that cannot be settled, and because complaints are not heard by courts but by members of a panel of human rights adjudicators, there is something biased, suspicious, or faulty about this system.
Mr. Lang’s assumption seems to be that only courts can deliver justice, and that to the extent that the Yukon human rights system is not like a criminal law system and not court-based and judge-run, it is flawed. If Mr. Lang were right about this, most of Canada’s legal system would have to be thrown out.
As Pearl Eliadis points out in a newly published article, “Human rights commissions and tribunals are part of a large family of administrative agencies … which decide the bulk of rights disputes of our citizens. [These administrative law agencies] deal not only with human rights claims, but also with refugee claims, national security oversight, health and safety standards, access to public health insurance, employment standards, food safety, housing standards and building codes, and the regulation of transportation and broadcasting, to name but a few.” All of these administrative law systems are bound by rules of fairness.
It is simply wrong for Mr. Lang to imply that there is something shadowy, lesser, or arbitrary about human rights screening and adjudicative systems. They are just like other administrative law systems in Canada: well-established, carefully balanced, remedial not punitive, and designed to be less expensive, more accessible and more efficient than criminal court processes, precisely because they deal with the routine legal disputes that arise in our daily lives. They are not designed to deal with “accused” or to find anyone “guilty.”
Finally, Mr. Lang states that we should get rid of the whole Yukon human rights system – commission and boards of adjudication – and send everything to the courts because the issues that the human rights system is dealing with – mainly free speech, he says – are just too important.
Of course, human rights systems are not mainly dealing with disputes about free speech. The number of complaints regarding free speech that are dealt with in human rights systems in all jurisdictions in Canada is miniscule – although they tend to receive a disproportionate amount of attention from the media. To my knowledge, there has not been one complaint that raises a free speech concern in the Yukon, and it is not clear that a complaint regarding speech can even be laid under Yukon’s human rights legislation.
No, the bread and butter of human rights commissions and tribunals is employment and service related complaints that have to do with disability, pregnancy, sexual harassment, and race and age discrimination. The main work of human rights commissions and tribunals is to ensure that all Canadians, no matter their sex, race, age, or disability status, have access to work, housing and services without discrimination. Their job is also to make sure that when discrimination occurs, the situation is put right through obtaining an appropriate remedy for the individual, and ensuring that corrections are made to guarantee that others will not encounter the same discrimination.
Mr. Lang seems to forget that sending all discrimination complaints to the courts is where we started, back in the last century before comprehensive human rights legislation was adopted across the country in the 1970s. Our experience with discrimination claims in the courts was very poor; the courts were hard to access and those who sought justice got no satisfaction. It was because of this experience that human rights commissions and tribunals were designed, precisely in order to provide a more remedial and effective approach to the elimination of discrimination.
There may be some changes to the Yukon human rights system that will improve it, make it more responsive and more able to help both employers and employees, service-providers and service-users. I understand that Yukon is in a period of study regarding reform. This is a moment to strengthen the Yukon human rights system; it is not a moment to weaken or abolish it. Mr. Lang is trying to take us back to the bad old days. But, if we want a fair and egalitarian community, it is essential to move forward.
Shelagh Day lives in Vancouver. She is the president and senior editor of the Canadian Human Rights Reporter. She was the director of the Saskatchewan Human Rights Commission, and was British Columbia’s first Human Rights Officer. She is a Member of the Order of Canada.