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Former Chief of The B.C.Human Rights Commission on Bill 107

Editor's Note: The following article is reprinted from the Globe and Mail, June 1, 2006.

Bill 107, the Ontario government's attempt to amend the province's Human Rights Code, has been met by strenuous objections. Why? Because Bill 107 will take away rights now entrenched in the code.

If passed, respondents and complainants will lose the right to a public investigation by the Ontario Human Rights Commission, currently armed with legal powers to search and compel evidence from an employer or business. Bill 107 would see a complaint go directly to the Ontario Human Rights Tribunal without investigation and provides no guarantee of legal support through the complex process. Even if the Dalton McGuinty government plans to provide legal support for victims of discrimination, Bill 107 allows the next government to take away that support without any notice or discussion.

The bill also takes away the broad right of appeal--severely limiting recourse if a verdict is felt to be unfair. And the bill virtually wipes out the Human Rights Commission's powers to intervene in individual cases to bring systemic issues before the Human Rights Tribunal and ensure public interest remedies form part of a settlement.

If you're having difficulty in understanding why these reforms are a big deal, let me draw this analogy: Many victims of crimes are unhappy with the justice system. Imagine if the government responded to these concerns by eliminating the police who investigate crime and Crown prosecutors who bring the matter before the courts. Imagine the government saying that, since investigating and prosecuting crime takes too long, you can now bring your charge directly to the courts. I can't imagine Canadians would agree that this is an effective fix for our problems with the criminal justice system. So why would we believe that this type of system would work for human-rights administration?

Ontario isn't the first province to move in this direction. British Columbia and Nunavut have also gone down this road, saying these reforms would improve human-rights delivery. Indeed, these reforms have been seductively referred to as "direct access". But, as we've learned in B.C., "direct access" does not mean direct access to justice, nor does it mean direct access to a hearing on the merits or substance of a complaint. What it means, in practical terms, is only direct access to a tribunal.

A "direct access" model was implemented in B.C. three years ago and now faces international criticism. Eliminating commission investigations shifted the often criticized gate-keeping function from the commission to the tribunal, which now spends most of its time screening out inappropriate cases rather than adjudicating the substantive merits of the allegations. Individual human-rights complainants face the burden of presenting and investigating their own cases. Without the support and expertise of the commission, complainants are having legitimate complaints dismissed without a hearing.

Under the commission model, human rights complaints are understood to be publicly managed issues that could further the governmental goal of eradicating discrimination and inequality. The "direct access" model removes the recognition of public interest in all human-rights cases. The result is that complaints have become private interactions between the parties more akin to private civil litigation or small claims court. Individuals and community groups are finding it nearly impossible to pursue systemic complaints or to achieve systemic remedies due to resource and time constraints, investigative challenges, lack of expertise and conflicting remedial interests.

The McGuinty government says its reforms are not based on the B.C. model, but the differences are negligible. B.C. Attorney-General, Wally Oppal, while defending the criticisms of B.C.'s model, said: "The province of Ontario is now considering a direct access model as well. While they have retained what they call a Human Rights Commission, if this legislation goes through, it will be retained in a very limited fashion in an educational way only. It will not have the same kind of status as it previously did have."

There is no question that improvements are required in Ontario's human-rights system. But the government should not follow B.C. down a road that weakens human-rights protection. It needs to take a long hard look at the level of resources it has provided the commission rather than removing resources and critical rights.

Ontario was the first jurisdiction in Canada to enact comprehensive human-rights legislation with a strong Human Rights Commission to administer rights in the province. Canada is now watching Ontario again. Ontarians have an opportunity to make a difference not only in their province but also to send a message to the rest of Canada about the importance of human rights. Will Ontarians help to weaken their human-rights system or will they work to make it a model for the rest of Canada, just as they did in 1961?

Mary Woo Sims, former chief of the B.C. Human Rights Commission, is president of the B.C. Human Rights Defenders. A full critique of the B.C. experience, Route 64--Another Detour on the Road to Equality, can be found at: www.hrdefenders.bc.ca (opens in a new window)