The National Post
Saturday, November 1, 1998

Human rights that rest upon the law

Cap in hand, Michelle Falardeau-Ramsey, chief commissioner of the Canadian Human Rights Commission, appeared before the public accounts committee in Ottawa this week asking for more money. But is cash the answer to the ongoing muddle at the CHRC?

For Ms. Falardeau-Ramsey had been called to task for a litany of problems unveiled by the federal auditor general earlier this year at both the CHRC and its quasi-judicial cousin, the human rights tribunal. These included delays in handling complaints, potential conflicts of interest, and repeated errors in interpreting the law. Yet Ms. Falardeau-Ramsey displayed a cavalier indifference toward these criticisms. Brushing aside virtually every substantive issue, she simply requested additional funds to clear her backlog of cases.

Admittedly, part of the problem at the CHRC is that Ottawa is continually expanding its mandate with new violations of human rights invented annually. Indeed, it sometimes seems human rights are more at risk in Canada than in Rwanda or Indonesia. Exploding mandates have also been the bane of provincial human rights commissions.

Witness the Prince Edward Island commission whose inclusion of "political belief" as a legitimate ground of complaint gave rise to 658 separate complaints in 1997. When more than 98% of all cases closed concern "political belief," then either Prince Edward Island has been taken over by radical totalitarians without anyone noticing, or the people there have extravagant notions of human rights and political beliefs.

Plainly, the more complaints - and the more types of complaint - there are, the more financial strains there will be for budgeteers to handle. It is the other issues raised by the auditor general, however, that are really disturbing. In particular, the Federal Court has repeatedly found the federal human rights tribunal has an impoverished grasp of the law. Of 19 appeals since 1996, the court has overturned the tribunal 11 times owing to errors of law. With $5-billion at risk in the CHRC's current row with Ottawa over pay equity for public servants, taxpayers can ill afford such a slipshod record.

Both the Federal Court and the auditor general, moreover, have pointed to the interdependence between the commission and the tribunal as a potential problem. And within the CHRC, there is a multitude of potential conflicts of interest. Consider, for example, that commission staff can both mediate the rights disputes before it and assist a complainant to take his case before the courts. Indeed, the commission may solicit a complaint about discrimination, help draft the complaint, investigate it and then appear before the human rights tribunal to argue it. Impartiality is largely a myth when one party serves as both prosecutor and patrolman.

In light of these problems, it is worth returning to first principles. The CHRC was set up in 1977 to offer an alternative to the lengthy and often costly process of adjudicating discrimination cases through the Federal Court system. It was meant to focus on mediation and conciliation, and to raise awareness of discrimination in society - although that latter aim is now redundant, Canada and most Western countries being almost rights-crazed, as illustrated by the mayor of Fredericton being forced to mouth assent to gay rights.

What has happened in the intervening 20 years? Sad to say the commission has become another example of the administrative state whose agencies have been gradually replacing the law as a method of adjudicating disputes between citizens for most of this century. The CHRC and the human rights tribunal, far from constituting a cheaper and less contentious way of mediating disputes to the satisfaction of both parties, simply duplicates the court system - but in a way that lends itself to legal bungling, conflicts of interest and one-sidedness. There should be a very strong reason of public interest to justify a state agency, backed by the taxpayer, intervening on one side in civil dispute. All too often there isn't. And, in addition, according to the auditor general's report, the present method of dealing with discrimination complaints is "cumbersome, expensive and time-consuming." So it is not an improvement on the courts in that respect either.

Rather than give the CHRC any more money or new responsibilities, let us cut it down to a size appropriate to a nation living under law. Let us abolish the CHRC's prosecutorial role - and the entire human rights tribunal along with it - and restrict the CHRC to education, conciliation and mediation. Should such a reformed CHRC fail to achieve a satisfactory solution for a particular complainant, he or she would then be free to pursue it in the courts - with whatever unofficial help the publicity had created.

Yes, the court system may be just as cumbersome, expensive and time-consuming as the CHRC. But at least Canadians can be confident in its impartiality and respect for the rule of law - and they are important human rights.

Copyright © 1998 by The National Post. All Rights Reserved. Reprinted with permission.