Editorial written by:
Avvy Yao-Yao Go, director of the Metro Toronto Chinese & Southeast
Asian Legal Clinic; Margaret Parsons
executive director of the African Canadian Legal Clinic and;
Uzma Shakir, executive director of the South Asian Legal Clinic of
Ontario
Opinion
Human rights body needs fixing, not dismantling
Last month, Attorney General Michael Bryant
announced his plan to revamp the Ontario Human Rights Commission. One central
feature of the reform is that it will get rid of the commission's "gatekeeper"
function, that is, the power of the commission to dismiss cases.
Those who favour the new model say the reform is
a step in the right direction because it will allow complainants to take their
cases straight to the Human Rights Tribunal.
In exchange for the "direct access," however, the
commission will no longer help individuals with the investigation and
prosecution of their complaints. Instead, the commission will dedicate its
resources to public education, research and monitoring systemic discrimination.
Is this the kind of reform our communities really
need? We think not.
There is no question the commission needs fixing.
Investigation by the body is not always effective or efficient. Many
complainants have their cases dismissed with no further recourse.
Moreover, to cope with the high caseload, for a
year now the commission has stopped helping individuals draft their complaints,
thus creating even longer delays in processing time.
All this is happening because theOntario
government continues to underfund the commission. In real terms, its budget this
fiscal year is approximately the same as it was 10 years ago.
Simply getting rid of the commission's gatekeeper
function is not going to address this gaping resource problem. "Direct access"
may simply mean the transfer of the delays and the gate-keeping function from
the commission to the tribunal.
More importantly, stripping the commission of the
power to investigate complaints will result in a two-tier, semi-privatized human
rights system in which well-heeled complainants will hire lawyers to help them
navigate the complex process, while marginalized citizens will be left to their
own devices.
On paper, we all enjoy the same statutory rights
to equal protection. But for some of us, that right only has meaning if it is
enforced.
Reform or no reform, the Human Rights Commission
remains the only agency that can enforce this right on behalf of the most
disadvantaged.
The government announcement neglects to mention
how individual complainants will be assisted under the new system, other than
suggesting that services will be in place to support those seeking a remedy
before the tribunal. Whether such services will be adequate and universally
accessible to all complainants, however, will be key.
Suggestions have been made that community legal
clinics can help represent more complainants, or that a new clinic will be set
up to represent those who need help with their cases.
While legal clinics should certainly do more in
this respect, the reality remains most complainants will not meet the financial
eligibility criteria for legal aid. The money needed to set up a new clinic
might be better spent on improving the commission itself.
It will be a shame if the Ontario Human Rights
Commission goes down the path travelled by its counterpart in British Columbia.
The Liberal government in B.C. gutted its
commission in 2002, leaving the tribunal as the only vehicle residents have to
enforce their rights. Interestingly, the B.C. government cloaked these changes
under the guise of "direct access."
The B.C. model has been criticized roundly by
advocates across the country and even by some international human rights
experts. While Queen's Park has insisted that the Ontario system is nothing like
the B.C. model, few details have been provided to show how the two, in fact,
differ.
While recognizing the many shortcomings of the
commission, many advocates still believe that the commission has a critical role
to play in assisting individual victims of discrimination.
Indeed, complaints such as those filed under the
Safe Schools Act would never have been pursued had it not been for the support
of the commission.
The attorney general should be commended for his
efforts to improve the commission.
But in his rush for change, the minister may have
allowed the reform agenda to be driven by those who are in the business of
providing private legal services to complainants and respondents alike. In so
doing, he has left out those who rely on the commission the most to protect
their rights, namely the human rights victims themselves.
Any reform to this critical institution should
only take place after a full and meaningful consultation process.
Ultimately, the best thing that the minister can
do to advance human rights, is to invest serious dollars into the system.
Avvy Yao-Yao Go is director of the Metro Toronto
Chinese & Southeast Asian Legal Clinic; Margaret Parsons is executive director
of the African Canadian Legal Clinic, and Uzma Shakir, is executive director of
the South Asian Legal Clinic of Ontario.
Avvy Yao-Yao Go, Margaret Parsons and Uzma Shakir
