Ontario Human rights Reform - A call to Action

TORONTO STAR EDITORIAL EMPHASIZES BILL 107’S SHORT-COMINGS, AS PROVINCE-WIDE MEDIA COVERAGE CONTINUES TO HIGHLIGHT CRITICISMS OF THIS CONTROVERSIAL LEGISLATION

June 28, 2006

SUMMARY

Here is a collection of recent media coverage of the Ontario Government’s controversial Bill 107. That bill would take away the Ontario Human Rights Commission’s lead responsibility to publicly investigate discrimination complaints, and to publicly prosecute them where the evidence warrants it.

Lead among these articles is the Toronto Star’s June 12, 2006 editorial. It echoes concerns about some of Bill 107’s serious deficiencies that we and others have raised. (See the Star editorial below) The Star says that the Ontario Government has done a “poor job” of addressing our concerns. Referring to Ontario’s Attorney General Michael Bryant, the Star says:

“But Bryant still needs to fill in some crucial details.

First, he must assure Ontarians that all legitimate claims would have a fair hearing regardless of the financial resources of the complainant by making concrete provisions for publicly funded legal support.

Second, he must show he has budgeted enough money for the staff and resources required to make the new system really work.”

The Star editorial in effect confirms our position that Bill 107’s provisions regarding legal representation for all human rights complainants falls far short of what the Government claims the bill provides. The Star stated:

“Under the proposed system, a new human rights legal support centre would offer "full legal support," including representation at hearings, to people who file human rights complaints at the tribunal. Bryant says there would be no means test. He also says services would be delivered by lawyers. But he has not worked out yet whether they would work at legal clinics, in the private sector or for government.

This uncertainty around the legal support centre is troubling. The proposed legislation does not explicitly provide for such a centre, let alone spell out what services it would offer. This is too important to leave until later. It must be settled as soon as possible. Ontarians must have confidence the new system will be accessible to all, regardless of their income.

Vagueness about the budget only adds to the uncertainty. The government now spends $13 million a year on the human rights system. It has pledged up to $2 million extra for the transition period. But it has yet to spell out how it will divide the cash between the revamped tribunal and commission, and the new legal support centre. Critics fear there will not be enough money or staff to help people with claims navigate the system.

Vulnerable people should not have to take it on faith that Queen's Park will protect their interests. That's why Bryant must act on his pledge to address these uncertainties quickly so his well-intentioned attempt to improve a broken-down system will have the confidence of all who use it.”

We agree. It is vital that the Ontario Government now explain how it plans to amend bill 107 in this and other respects, and give details about the budget it plans to allocate to the chronically underfunded human rights system, including to legal representation. The Government should not wait to reveal the plans it has already formulated until after the public hearings.

We urge everyone to write letters to the editor at the Star to support this. You can write the star at:

lettertoed@thestar.ca

The very constructive Star editorial is especially important because in the past, the Ontario Government has referred to the Star when the Government tries to defend its plans. The Star editorial is just part of the recent media coverage that has supported our concerns about bill 107. Also see below:

Taken together, these articles show several things: Concerns about bill 107 come not only from the disability community,but from a range of voices from other equality-seeking communities. All these communities need a strong, effective Human Rights Commission. Coverage of this issue persists, and is not dying down. Coverage of this issue is not limited to Toronto, but continues to appear in centers around Ontario. Finally, a significant proportion of the coverage comes from individuals writing letters or guest columns for their local newspaper. We urge you to do the same!

Send your feedback to us at:

aodafeedback@rogers.com


Toronto Star June 12, 2006

Editorial: Ambiguity clouds new rights regime

For too long, Ontario's human rights complaints system has been broken.

Bringing a case to its conclusion is often a bureaucratic nightmare. It can take as long as five years to resolve some complaints, forcing people who have suffered real discrimination at work, in housing or other fundamental areas of their lives to wait far too long for justice.

That's why proposed provincial legislation to streamline and speed up the human rights complaints process, which passed second reading last week, is a long overdue and welcome step toward fixing the problem.

But since the changes were unveiled in February, groups representing the poor and disabled have raised concerns about some of the reforms. Specifically, they worry the changes would weaken the current system by removing from the Ontario Human Rights Commission its role as public investigator and prosecutor in most cases. Also, they fear they would not receive adequate legal resources to navigate the new process on their own.

To date, the Ontario government has done a poor job of dispelling those concerns, particularly because many key parts of the legislation are vague and not fully developed. Attorney-General Michael Bryant said last week he intends to amend the bill to clarify the kind of legal supports complainants will receive. He must spell this out in detail soon if he hopes to ease fears that he may be sacrificing accessibility for speed and efficiency.

Under the current system, in place since 1962, people who feel they have suffered discrimination can lodge a complaint with the Ontario Human Rights Commission. The commission investigates the claim, may try to mediate a settlement and decides whether to send the case to the Ontario Human Rights Tribunal for a full hearing. Only 6 per cent of cases reach the tribunal. Most are either dismissed or resolved by the commission.

Under the proposed changes, people would file discrimination complaints directly with the tribunal, removing the commission entirely from the process. The commission instead would conduct research, public education and advocacy work on systemic discrimination, functions it now performs in only a limited way. It could also bring complaints before the tribunal and intervene in cases that arise from systemic issues.

The goal of the legislation is to hasten the resolution of legitimate human rights complaints. By moving the resolution of cases to the tribunal, this bill would do that by eliminating duplication, while bolstering the commission's ability to root out systemic discrimination. So far so good.

But Bryant still needs to fill in some crucial details.

First, he must assure Ontarians that all legitimate claims would have a fair hearing regardless of the financial resources of the complainant by making concrete provisions for publicly funded legal support.

Second, he must show he has budgeted enough money for the staff and resources required to make the new system really work.

Under the current system, the commission shepherds complaints through the process. That means people with little money do not have to hire a lawyer because they can rely on the expertise of commission staff.

Under the proposed system, a new human rights legal support centre would offer "full legal support," including representation at hearings, to people who file human rights complaints at the tribunal. Bryant says there would be no means test. He also says services would be delivered by lawyers. But he has not worked out yet whether they would work at legal clinics, in the private sector or for government.

This uncertainty around the legal support centre is troubling. The proposed legislation does not explicitly provide for such a centre, let alone spell out what services it would offer. This is too important to leave until later. It must be settled as soon as possible. Ontarians must have confidence the new system will be accessible to all, regardless of their income.

Vagueness about the budget only adds to the uncertainty. The government now spends $13 million a year on the human rights system. It has pledged up to $2 million extra for the transition period. But it has yet to spell out how it will divide the cash between the revamped tribunal and commission, and the new legal support centre. Critics fear there will not be enough money or staff to help people with claims navigate the system.

Vulnerable people should not have to take it on faith that Queen's Park will protect their interests. That's why Bryant must act on his pledge to address these uncertainties quickly so his well-intentioned attempt to improve a broken-down system will have the confidence of all who use it.


The Toronto Star

June 26, 2006
Opinion

Good intentions are not good enough; Proposed changes weaken the enforcement powers of Human Rights Commission
By Faisal Kutty

At the time of its enactment in 1962, the Ontario Human Rights Code was ahead of its time in prohibiting discrimination and harassment on enumerated grounds
- now numbering 16.

Sadly, the system that consists of the Ontario Human Rights Commission and the Human Rights Tribunal has not kept pace with the demands of a changing society.
In fact, over the past 15 years, numerous studies, reports and consultations have concluded the system is broken.

The Dalton McGuinty government must be commended for taking the initiative to improve the system. So why did a coalition of human rights groups, community organizations and prominent individuals sign an open letter last week asking Attorney General Michael Bryant to slow down?

Clearly, the government has the right intention in introducing Bill 107 (Human Rights Code Amendment Act, 2006), but good intentions are not always good enough. In fact, the proposed amendments do little to correct the deficiencies and, in fact, weaken our human rights system even more.

The necessity of a strong human rights protection and redress system was reinforced by the 1981 Supreme Court decision in Seneca College v. Bhaduria. The court refused to recognize a tort of discrimination, and essentially recognized the exclusive jurisdiction of the Tribunal in granting remedies for human
rights violations. The ostensible reasoning was that the provincial legislative initiative encapsulated in the Code superseded the common law.

Under the current system, once a complaint is filed, the commission investigates the matter and guides the complainant through the process. If the resolution
is unsatisfactory to the complainant or the commission (acting in the public interest), then the commission is empowered to take the matter to the tribunal.

At this stage, the commission essentially takes on the role of a prosecutor and advocates for the complainant.

Bill 107 not only eliminates this investigative and prosecutorial role by giving complainants direct access to the tribunal, but goes even further and reduces the commission's power to initiate its own complaints.

Direct access to the Tribunal may sound good in theory, but the formality of the process and lack of commission support will intimidate even more from pursuing justice. Moreover, the tribunal's expanded grounds to dismiss complaints without a hearing may speed up the process, but will not serve the cause of human rights. A hybrid system, whereby the complainant has choice of whether to proceed through the commission or go directly to the tribunal may be a better alternative.

The current system is seriously backlogged and lacks any real teeth in terms of deterrence. Far from alleviating the problems, the proposed amendments, which also include a potential user fee and no guarantee of legal representation, will preclude even more people from using the system effectively.

In the current climate of rising discrimination, racism, anti-Semitism and Islamophobia, a strong Human Rights Commission is a necessity to preserve social cohesion in our increasingly multicultural society. There is broad consensus among the front-line organizations that a number of serious issues must be reconsidered, including the following

Retaining and expanding the investigative role of the commission.

Mandating adequate funding for legal representation of complainants. As it stands under the bill, such funding is discretionary.

The tribunal must not be able to override the "due process" provisions of the Statutory Powers Procedure Act.

The bill's expanded grounds for refusing a hearing need to be reconsidered.

Providing authority to the tribunal to award legal costs to a successful complainant.

Increasing the deterrence value by increasing compensation amounts. A maximum penalty of $10,000 for the most wilful and reckless violations really lacks any bite.

Any user fees must be reconsidered or structured as a refundable one if the complaint is not frivolous and vexatious.

Strengthening the system in policing, and sanctioning reprisals against complainants and whistleblowers.

These are just a few of the areas that need to be studied further. As a lawyer and human rights activist who has been on the front line in dealing with increasing discrimination against Muslims and the growth of Islamophobia, I can say that our system has fallen short.

More recently, in the wake of the arrests of 17 suspects in an alleged terrorist plot, I have personally fielded numerous calls from individuals who feel their rights are being violated.

Most find the existing system with all of its supports hard enough to navigate. The proposed amendments will only increase the likelihood that they will never get their "day in court," contrary to what Bryant said in introducing the bill.

At this critical juncture, we need a strong Human Rights Commission to ensure that human rights in Ontario are not only theoretical, but can practically be enforced.

The only way to ensure this is to proceed with caution, consult broadly and give sufficient opportunity for affected groups to properly make representations.

Faisal Kutty, a lawyer, is vice-chair of the Canadian Council on American Islamic Relations and general counsel for the Canadian Muslim Civil Liberties Association.


For Immediate Release

May 29, 2006

COMMUNITY GROUPS WANT HUMAN RIGHTS REFORM,
BUT BILL 107 IS NOT IT


On May 30, 2006, Bill 107 – a bill to amend the Ontario Human Rights Code – is heading into its second, and maybe last, day of Second Reading. Community organizations from various racialized communities are asking the Government to stop Second Reading. A press conference will be held by these organizations on Tues. May 30, 2006 at 10:30 a.m. at Queen’s Park Media Studio to discuss their concerns.

“We have serious concerns about the proposed reforms. There is no question that the human rights system in Ontario is broken and is in need of repair. But Bill 107 will not fix the problems,” said Michelle Cho of the Urban Alliance on Race Relations.

“For Arab Canadians, having a strong human rights system to protect us from discrimination has never been more important,” said Mohamed Boudjanane, Executive Director of Canadian Arab Federation, “our community wants reform as much as anyone else, if not more so. But bill 107 takes away existing rights now entrenched in the Human Rights Code. We will lose access to a public investigation of complaints – this is really serious,” added Boudjanane.

“Right now the people we serve get assistance through the whole complaints process, someone will investigate their complaint and if the case goes to the Tribunal there is a public prosecutor to take their case forward,” said Andre Goh, of Asian Community Aids Services. “If this bill goes ahead navigating a strictly legal process will be almost impossible for marginalized people and they will have no guarantees of legal representation of any kind. It is completely left to the whim of the Minister of the day. This is just not OK,” declared Goh.

The organizations want time to work with the Minister to create legislation that will truly improve Ontario’s human rights protection system rather than make things worse.

For further information, please contact:

Mohamed Boudjanane, Executive Director, Canadian Arab Federation, 416-889-6764
Andre Goh, Asian Community Aids Services, 416-963-4300
Michelle Cho, Urban Alliance on Race Relations, 416-703-6607 x 3


GLOBE & MAIL
May 30, 06

Revamp of Ontario human rights body threatens justice, say Arabs, Muslims
Canadian Press

TORONTO — Proposed changes to Ontario's human rights system could threaten the rights of Arabs, Muslims and others who find themselves victims of discrimination, the Canadian Arab Federation warned Tuesday.

Ontario's so-called “direct access” model will only lead the province down the same bumpy road British Columbia travelled in 2003, said Mohamed Boudjenane, the federation's executive director.

The changes would weaken the equality process by taking away the Ontario Human Rights Commission's role as public prosecutor, its mediating and investigative powers and its ability to initiate complaints, Mr. Boudjenane said.

“After Sept. 11, Arabs and Muslims in this country and this province became the main target of all kinds of abuse and Islamaphobia and racism,” Mr. Boudjenane told a news conference.

“The human rights commission became the ultimate source of having justice and being protected. For our communities, this is a major concern.”

He said weakening the commission's powers means complainants won't have anyone to guide them through the human rights system, which can be mystifying for newcomers to Canada.

“The Ontario Human Rights Commission used to take people by their hand and take them through the process,” Mr. Boudjenane said.

“Now, people have to go and fight against major corporations with a lot of money, go fight against public services or government, without the money and the resources to do so.”
Ontario's plan mimicks a similar plan in British Columbia, which abolished its commission in 2003 in favour of allowing people with grievances to go directly to its tribunal, he noted.
“Ontario's (plan) is not as bad as B.C., but it's the beginning of the end,” he said. “We're going to end up with the same process (as B.C.).”

Health Minister George Smitherman, standing in for Premier Dalton McGuinty, defended the bill in the Ontario legislature Tuesday, saying the reforms have the support of many groups, including the Canadian Jewish Congress.
“This is an issue that has been around for a long, long time,” said Smitherman.
“Over a long period of time, a couple of decades I believe, people have been working on this issue. The consultations were broad.”

The reforms proved a real blow to the system in B.C. because complainants no longer have a third party to show them the ins and outs, said Mary Woo Sims, the province's former chief human rights commissioner.

Ms. Sims illustrated the impact of the legislation by putting them in the context of a province making similar changes to the criminal justice system.

“Imagine that the government ... eliminated the police who do the investigation, eliminated the crown prosecutor who prosecutes the crimes, and said, ‘You can now directly file your complaint with a judge in the court,'” said Ms. Sims, now the president of B.C. Society of Human Rights Defenders.
“You have direct access to the courts, but you have no direct access to justice.”

Announced earlier this year, the amendments to Ontario's Human Rights Code are designed to reduce the oft-criticized backlog of cases and address long-standing inefficiencies.
If passed, the bill would make the Human Rights Tribunal of Ontario responsible for accepting, dismissing, mediating, resolving and adjudicating discrimination complaints — duties currently shared with the commission.

Instead, the commission's attention would be refocused on public education, advocacy and preventing discrimination rather than on screening and handling complaints.

Attorney General Michael Bryant has promised to hold public hearings before the bill is passed into law. His office said Tuesday the hearings will likely be held over the summer.


The Hamilton Spectator
TORONTO (May 31, 2006)

Changes in Ontario human rights system seen as threat by Arabs


Proposed changes to Ontario's human rights system could threaten the rights of Arabs, Muslims and others who find themselves victims of discrimination, the Canadian Arab Federation warned yesterday.

The changes would weaken the equality process by taking away the Ontario Human Rights Commission's role as public prosecutor, its mediating and investigative powers and its ability to initiate complaints, said Mohamed Boudjenane, the federation's executive director.

He said weakening the commission's powers means complainants won't have anyone to guide them through the human rights system, which can be mystifying for newcomers.


TORONTO SUN May 31, 2006

Arab group rips rights tinkering
System overhaul targets society's most vulnerable
By ANTONELLA ARTUSO, QUEEN'S PARK BUREAU CHIEF


Some users of the Ontario human rights system are appealing to the province to delay a planned overhaul they fear will take away the last resort for society's most vulnerable.

Mohamed Boudjenane, executive director of the Canadian Arab Federation, said groups representing minorities and the disabled have not been properly consulted about changes to the human rights commission and tribunal.

After Sept. 11, Arabs and Muslims in this province became targets of abuse and racism, Boudjenane said.

"And the human rights commission of Ontario became the ultimate source of having justice and being protected," he said.

Boudjenane was joined by representatives of Asian Community AIDS Services and the Urban Alliance on Race Relations yesterday to make a collective pitch for a halt of the second reading of Bill 107.

The legislation, introduced by Attorney General Michael Bryant, would remove the commission's gatekeeper role, allowing individuals to go directly to the tribunal.

The commission will no longer investigate individual complaints and carry them through the tribunal process. Instead, the commission will focus on systemic discrimination issues.

Critics of the plan say the most marginalized people benefited from the commission's support, and will be intimidated going up against large institutions on their own at the tribunal.

Acting premier George Smitherman said in the legislature yesterday that many community groups welcome the proposed changes, which include legal support for individuals through all stages of the process. Changes in Ontario human rights system seen as threat by Arabs


The Hamilton Spectator
TORONTO (May 31, 2006)
Proposed changes to Ontario's human rights system could threaten the rights of Arabs, Muslims and others who find themselves victims of discrimination, the Canadian Arab Federation warned yesterday.


The changes would weaken the equality process by taking away the Ontario Human Rights Commission's role as public prosecutor, its mediating and investigative powers and its ability to initiate complaints, said Mohamed Boudjenane, the federation's executive director.

He said weakening the commission's powers means complainants won't have anyone to guide them through the human rights system, which can be mystifying for newcomers.


Toronto Globe and Mail On-Line June 1, 2006-06-23
Human Rights Reform – The Disturbing Revolution


The McGuinty Government in Ontario recently introduced Bill 107, the “Human Rights Code Amendment Act, 2006.” It has been met by strenuous objections. Why? Bill 107 will take away rights now entrenched in the human rights code.

If passed, respondents and complainants will lose the right to a public investigation by the 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 Tribunal without investigation and provides no guarantee of legal support through the complex process. Even if the 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 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 Commission’s powers to intervene in individual cases to bring systemic issues before the 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 investigating and prosecuting crime takes too long so now you can bring your charge directly to the courts. I can’t imagine Canadians would agree 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. Governments in BC and Nunavut have 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 BC, ‘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 BC 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 human rights 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 claims its reforms are not the BC model, however the differences are negligible. Wally Oppal, BC’s Attorney General, while defending the criticisms of BC’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 improvements are required in Ontario’s human rights system, but the government should not follow BC down a road that weakens human rights protection. The government 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?

A full critique of the BC experience entitled “Route 64 – Another Detour on the Road to Equality” can be found at www.hrdefenders.bc.ca.

Mary Woo Sims, is the President of the BC Human Rights Defenders and a former President of the Canadian Association of Statutory Human Rights Agencies


Toronto Star June 16,2006
Act will provide further barriers

New human rights system needs proper funding

Letter, June 14.


It appears that letter writer Patrick Case has not yet read Bill 107. If he did, he would see that the discretionary gatekeeping function afforded the Human Rights Tribunal to not hear a complaint, is far more stringent than that currently performed by the Ontario Human Rights Commission. The proposed legislation does not guarantee one's day in court, nor does it guarantee subsidized legal assistance for complainants. Further, it raises the spectre of charging fees for service — services currently provided free of charge by the commission.

Case intimates that the Human Rights Code and commission have remained static since inception. On the contrary, as the needs of society changed over the years, so too did human rights legislation and its concomitant policies, programs and systems.

The commission's integrated approach ensures that every meritorious complaint is advanced from a compliance, policy, public education and legal perspective, with a view to not only providing a satisfactory individual remedy, but also a public interest remedy that satisfies systemic inequalities.

The cornerstone of any successful hearing is the investigation and evidence-gathering component — currently housed within the statutory authority of the commission's complaints process. With this power removed, as proposed by Bill 107, one queries how fair hearings at the tribunal can be.

We agree that the current complaints process needs improvement. But to replace it with a system whose track record elsewhere is less than stellar, is counterintuitive and potentially dangerous to the protection of human rights in Ontario and stands a good chance of providing barriers, rather than access, to justice for the very people it purports to help. The people of Ontario deserve better.

Toni Silberman, Immediate Past Chair, League for Human Rights of B'nai Brith Canada, Toronto