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NEW RELEASE: In Speaking Out on Human Rights, Pearl Eliadis looks at Canada’s human rights system, a unique legal tradition operating within a powerful modern constitution. Drawing on in-depth interviews with leading experts and extensive original research, she provides a frank assessment of how Canada’s human rights system functions and offers promising avenues for its future development. The following is an excerpt.
Human rights lawyer Shelagh Day has said that the cumulative effect of the campaign against human rights institutions has been an inhospitable environment for human rights and a fertile ground for the dismantling of human rights protections. While there have always been critiques of the human rights system, Day observed, “there is something qualitatively different happening in its intensity in Canada. What I see is a shift. The values that human rights institutions embody are antithetical to the views of people who see attacks on commissions as a way of attacking a value system that they are seeking to discredit.”
Although some might argue that the supposed demise of the “pan- Canadian consensus” on tolerance and human rights is behind this shift, the survey data discussed in the introduction suggests that the Charter and multiculturalism continue to be highly valued by Canadians. All those I interviewed felt that there is a remarkable consensus in Canada that discrimination is wrong and should be illegal. I see no support for the thesis that Canadians today are less committed to human rights or tolerance, or to a vision of Canada that is less accepting of equality. Nonetheless, the criticisms have found their mark at the institutional and personal levels. Many of the criticisms, as well as the responses to them, have been the subject of this book. It is easy to criticize these institutions because so much of the public’s impression of them has been fostered and fomented by those who are openly hostile to the human rights system and everything it stands for. It is also possible to assume that criticisms are biased and reject calls for change. Neither approach is very helpful, in my view. While those interviewed expressed concern about the future of the human rights system, most acknowledged that the status quo is not entirely acceptable either.
Governments should think long and hard before making fundamental changes to human rights laws. There are inevitable trade-offs in any major reform, as the highly divisive debate in Ontario about Bill 107 demonstrated. That said, this is a good time to consider our system as a whole and to engage in a national dialogue about reform. There is heightened awareness about human rights institutions and we now have the benefit of considerable experience with different configurations of first-generation human rights systems and reasonably good data on how well direct access is working in second-generation systems. The rapid evolution that has taken place in administrative law means that there are strong advocates in the practitioner community for more stringent application of the principles of independence, impartiality, and competence for human rights tribunals. Human rights commissions, for their part, are subject to their own standards of independence, impartiality, and competence. Human rights systems as a whole should be leading the push towards improved respect for these standards, not trailing in its wake. A serious attempt to develop uniform human rights laws across Canada is long overdue. According to the Uniform Law Conference of Canada, there has been no consideration of any initiative with regard to the harmonization of human rights statutes in Canada since 1961.
The following sections offer ten ideas and twenty-two recommendations for improving human rights systems in Canada and their governance, while maintaining what is best in these unique Canadian institutions. Addressing shortcomings does not require diminishing the human rights involved or the institutions that protect them. These steps should assist in gaining (or regaining) the trust of Canadians. I do not pretend that the ideas that follow are original or comprehensive solutions. Indeed, they may be accused of what Alan Borovoy calls “disjointed incrementalism.” In my defence, I offer Borovoy’s words: “I [have come] to view ‘disjointed incrementalism’ as a largely sensible approach to human affairs. When we adopt solutions incrementally or piecemeal, we are able to see and address more effectively the countervailing considerations. When we move disjointedly, we increase the likelihood that our priorities will respond to the needs of real people. Conversely, the more attached we are to theories and doctrines, the less sensitive we are likely to be to the needs of the people who will be affected by them.”
Given that we have fourteen distinct systems in Canada that evolved quite differently and over different periods of time, it seems that we have been moving disjointedly and incrementally in any event. Moreover, we will likely continue to do so. The most obvious and coherent solution – harmonizing our entire human rights system by creating a single national human rights law and institution – requires a big change that is unlikely to take place. It would require a constitutional amendment, or at least a full-scale and full-hearted attempt at cooperative federalism in which Quebec is unlikely to be an enthusiastic participant. As well, the diversity of our human rights systems suggests that a one-size-fits-all proposal is unlikely to work. While I am pessimistic about a grand scale solution, we should at least be focused on creating a governance environment that is more hospitable to human rights institutions and conducive to their effective functioning, independence, and accountability.
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