Backward Step in Human Rights

By Alex Neve and Ailsa Watkinson
The StarPhoenix March 21, 2011

Following is the viewpoint of Neve, secretary general of Amnesty International Canada, and Watkinson, a professor with the faculty of social work at the University of Regina’s Saskatoon campus.

Saskatchewan has a proud history on human rights. Going back more than six decades, it led Canada on human rights protection.

Under premier Tommy Douglas in 1947, Saskatchewan became Canada’s first province to adopt a bill of rights. The province took that remarkable step a year before the United Nations adopted the world’s most important human rights document, the Universal Declaration of Human Rights. It was a principled step forward, and all other Canadian provinces followed.

Saskatchewan is poised to again lead Canada when it comes to human rights. But this time it would be a sad step backward. Bill 160, the government’s proposed changes to provincial human rights legislation, needs urgently to be withdrawn.

What is most worrying about Bill 160 is its intention to abolish the Saskatchewan Human Rights Tribunal. The tribunal currently is responsible for hearing human rights complaints that cannot be resolved by the Saskatchewan Human Rights Commission -a model used by every other Canadian jurisdiction.

But under this bill the tribunal would close its doors and complaints would instead be heard by the Court of Queen’s Bench. The government says this will improve efficiency and give complainant’s a higher standard of justice.

Think again.

Tribunals were set up to hear human rights complaints for two key reasons: expertise and accessibility. Both are vital when something as fundamental and vulnerable as human rights is on the line.

A tribunal with a mandate focused on human rights can develop expertise in ways that even the most talented judge, whose docket spans a dizzying array of issues, simply cannot achieve. Specialization helps strengthen human rights protection.

A tribunal is also a much more relaxed and less expensive setting than the formality and complexity of a courtroom. Rules of evidence are not as stringent. Claimants are not faced with the intimidation that comes with lawyers and robed judges. Given that the complainants often come from marginalized, low-income communities, this informality goes far in boosting both comfort and confidence.

There is wide agreement that the human rights tribunal has faced challenges. Notoriously underfunded for many years and lacking basic institutional support, it is perhaps not a surprise that the average time for processing a case has climbed to a reported 21 months.

What is perplexing is to leap from recognizing the tribunals need repair to the extreme proposal in Bill 160: Get rid of tribunals. There are many other options, including increased funding, different approaches to appointing tribunal members, new rules of procedure, and providing the tribunal with badly needed infrastructure.
There is no indication that these options were explored. If they were, there is no explanation why they were rejected. In the absence of that basic information, one is left with the worrying prospect that this may be less about the professed concerns about efficiency and more about animus toward the tribunals.

That disquiet grows when other proposed changes are considered. The period to make claims is to be cut to one year from two. There are multiple reasons why individuals may be slow to launch a complaint. They may be uninformed, nervous or fearful. The current two-year limit is sensitive to that reality. To back up the proposed change, one might expect compelling evidence that the bulk of complaints made during that second year are groundless. None is provided.

Also worrisome are two new grounds for rejecting complaints before they even reach a hearing. One is the open-ended possibility that “having regard to all of the circumstances” the commissioner concludes a hearing is “not warranted.” Surely something as serious as dismissing someone’s human rights complaint deserves less arbitrary criteria.

The other is that if, during mediation, a complainant rejects a settlement offer the commissioner considers “fair and reasonable,” that’s the end of the road. It’s a decidedly coercive approach to mediation.

It’s beneficial, of course, to persuade complainants to accept a reasonable settlement. But the bottom line is that the human rights at stake belong to the complainant, not to the commission. If an individual makes an informed decision to opt for a full hearing instead of a settlement, that choice should be respected.

Alongside Bill 160, the SHRC has announced a set of new priorities, described as the Four Pillars. These largely admirable changes do not involve legislative changes and should proceed. But the bill itself is seriously flawed and must be withdrawn.

Systems for protecting human rights should constantly be improved. But that should occur through open-ended consultations that reflect the views and needs of the public. Bill 160 did not emerge from that sort of process. The changes were developed first and then taken to the people. That’s the wrong order. When it involves human rights, people must come first.

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