Enabling Human Rights Commissions as Norms-Brokers

KEYNOTE REMARKS

Annual Meeting of the

Canadian Association of Statutory Human Rights Agencies 

Whitehorse, Yukon

June 26, 2018

Pearl Eliadis

Edited Version  eliadis@rights-law.net

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I acknowledge the Kwanlin Dün First Nation and, the Ta’an Kwäch’än Council on whose territory I am speaking, as well as Indigenous leaders, elders, and fire keepers who are with us today. I would also like to acknowledge that I am from Montreal, on land that has long served as a traditional meeting place of Indigenous peoples, including the Haudenosaunee and Anishinabeg peoples.

Honourable Members of the Senate of Canada, Honourable Ministers of Justice of Yukon and British Columbia, Mr. Charles Dent, CASHRA Chair and Chair of the Northwest Territories Human Rights Commission, Madame Deputy Chair of the Yukon Human Rights Commission, Chief Commissioners, commission members from across Canada, distinguished guests.

I would like to warmly thank CASHRA and the Yukon Human Rights Commission for inviting me and Director Jessica Lott Thompson and her staff for making this event possible.

A special thank you to Sarah Murphy who has been so helpful to all the speakers.

Mes remarques seront entièrement en anglais vue l’absence de la traduction simultanée, mais il me ferait un plaisir de répondre aux questions en français.

***

I always enjoy returning to CASHRA’s annual conference.  The last time I was in Whitehorse, in fact, was in 2001 for another CASHRA conference.

The year before that, in 2000, the conference took place Banff, Alberta; I must admit that my best memories were not about the conference itself; I played a bit of hooky and went hiking. It was the first time I had walked in the foothills of the Rockies. When I returned to the Centre and tried to sneak back in, I ran into Charlach Mackintosh. As many of you know, at the time he was at the time the legendary Chief Commissioner of Alberta’s commission. I waited apprehensively for a lecture on missing the afternoon sessions or at least a disapproving glance. But no: brandishing cans of bear spray and elk spray, he explained to me that it was elk rutting season and that the grizzlies were waking up. In short, and reading between the lines, I had been a complete idiot for going out alone and not telling anyone.

Still, it was a magnificent time of year then, as it is now. I clearly remember a stream that was still frozen silver with bright yellow flowers poking up their heads in front of it. It was beautiful but, as it turned out, full of things right under my nose but that I understood little about. This story, with its high notes of new paths, but also of salience and risk, connects directly to this conference and its focus on innovation.

CASHRA meetings are important not only for information sharing and networking – critical roles that have already been mentioned – but also for identifying shared agendas, scalable innovations, and areas of common cause where commissions can effectively work together more effectively.

I would like to propose some ideas in that direction today.

In doing so, some caveats: first, I know that high level observations about developments in some jurisdictions will not resonate with everyone. There is a diversity of experiences in this room and there are distinct institutional cultures in human rights commissions across the country.

Second, one has to be humble when talking about innovation: there is very little that is really new under the sun. Several years ago, I remember hearing Michael Barber at a conference, talking about public sector innovation in Tony Blair’s government in the UK. A special unit was set up in the Prime Minister’s office called the “Delivery Unit”; as its name suggests, the Unit was responsible for getting things done and “delivering” to the public.  Barber had been named as its head.  In any event, I remember Barber talking about “deliverology” as a new sort of public administration science and how excited he and his colleagues were when they were able to improve previously deficient service delivery. Carefully crafted communications were planned and released and…

…no one cared very much.

Barber thought that that the explanation lay in the fact that no one gives you medals for doing your job, let alone for doing the basics of what your institution was set up to deliver or doing so in a timely and effective way. (As a footnote, the Unit was abolished in 2010, probably because someone eventually realized that the public service was what was actually the key mechanism for getting things done.)

So, I will not be talking about those sorts of developments, which celebrate the public service for doing what is expected of it. Nor about the iterative progress that many of you in this room achieve every day, moving the yardstick forward bit by bit, advocating before the courts or undertaking the slogging work of policy development and building consensus. It is true that all of these things are important; they represent the hard and often unrecognized work of developing the law and a robust culture of human rights. Still, we are surely past the time —way past the time—when mediation in any shape or form, early or late, just in time, directed or free form, can really be called “innovation”. Ditto for internal measures to reduce delays to acceptable levels or announcements of increases in systemic work.

Still, it is very exciting that commissions are working to do basic things that are significant for people looking for help, like allowing people to file human rights complaints online. A bit of a shout out to the Canadian Human Rights Commission on this front; it would be wonderful to see a national effort along these lines if we are truly concerned about putting people first and ensuring access to justice.

By far, the most significant institutional innovation in human rights commissions in a half a century – the creation of direct access to adjudication in second generation human rights systems and the addition of the so-called third leg of the stool, the Human Rights Legal Support Centre in Ontario – cannot be said to be “new” – they have already been around for a decade in Ontario.

What is new is that the second generation model (which is about much more than direct access) can now be assessed in relation to data on access and effectiveness. This model is also informing the reintroduction of a new human rights commission in British Columbia, a major development and a victory for human rights commissions in Canada.  The evidence does indeed indicate that direct access has been positive, especially in Ontario, and that it has made a significant difference to thousands of Canadians through shorter delays, lower costs and improved institutional legitimacy.[1]

The Ontario commission has been freed up to engage in systemic and structural work, something that had been promised for years under the pre-2008 system but never materialized for lack of resources, capacity and institutional bandwidth.

And so, while recognizing that some things are new, or that nothing is really very new at all, I would like to venture two themes under the “The Time is Now” banner, the title of this conference.

The first is an enabling environment, a concept that allows us to focus on those external factors that permit institutions to thrive. The time is indeed now for commissions to have more institutional independence as well as formal recognition of their right and responsibility to speak out on human rights, ensuring that organizations, human rights defenders and human rights commissions can do their work freely and without undue pressure or interference.

The second is the reframing of the role of human rights commissions as not only administrative bodies charged with preventing discrimination, but also as norms-brokers which can and must engage with a variety of different norms and systems in order to do their work properly.

An “enabling environment” for human rights commissions and institutions

Since the 1990s, the search for “what works” in the international development context has been influenced by an idea called the ‘enabling environment.’ It recognizes that policies, programs and institutions can fail for reasons other than the merit or capacity of the organizations responsible for delivering them. External factors such as legal and policy frameworks, social attitudes, and political priorities can play important roles in determining an organization’s success. The concept of an “enabling environment” offers a broad, unifying platform from which we can identify and assess those factors that actively help organizations to thrive. International organizations like CIVICUS, CCIC, and the Canadian coalition Voices-Voix, have been instrumental in bringing these ideas to the fore. A special thank you here to federal public sector unions in Canada that have been instrumental in funding the projects related to an enabling environment in Canada, especially during Canada’s dismal Harper decade.

For commissions, enabling factors include funding, of course, and the capacity to engage with policy makers. But they also include the absence of political influence and appointments/renewals of commission members that lack appropriate statutory criteria grounded in merit and experience. In a “disenabling” environment, politicians and government actively interfere in commission work, fail to support the independence of commissions and commissioners and vilify the work of commissions in the public eye.

For those of you here today who do not work for human rights commissions and who think this discussion is irrelevant to you, I urge you to think again. If the public does not push politicians hard to make sure that human rights commissions are meaningfully independent, to ensure a climate is favourable to human rights, everyone loses.

To better understand what enables institutions, it perhaps might help to recall what a disenabling environment looks like.  Commissions are both volatile and vulnerable institutions. For those who lived through – I might say survived –the period that roughly coincided with the Harper government’s mandate, you will recall the widespread accusations of institutional illegitimacy, mandate creep and jurisdictional adventurism that initially targeted the federal, Ontario and BC commissions, and eventually engulfed most of the country. Commissions lost allies and civil society’s attitudes ranged from indifference to hostility. The media was frankly hostile. Members of Parliament, Conservative and Liberal, were spreading disturbingly misinformed information about commissions.  This created a chilling effect.

This phenomenon is not limited to Canada. The commissions in Australia and New Zealand have been under fierce political and media scrutiny for months—for years in the case of Australia, partly as a result of its role in immigration and refugee issues. The UK’s equality commission was under a prolonged siege under its previous leadership. In Northern Ireland, the commission there has been pilloried by religious and conservative minorities after the UK’s Supreme Court ruled that the commission lacked standing to challenge Northern Ireland’s strict prohibitions against abortion. India’s national human rights commission has earned the ire of politicians and citizens by insisting on an inquiry into the occupation of Jammu and Kashmir, arguably the most significant and underreported human rights issue in the region.

Returning to Canada, in my home province, the Quebec commission remains mired in controversy partly because of legacy leadership issues. But it would be churlish on my part to not acknowledge the positive changes afoot: I would point to the appointments of Philippe-Andre Tessier, the Vice President of Human Rights and more, recently, Michelle Moreau, who is here today. But having said that, many in Quebec have been disappointed and frustrated by years of decisions that have been described as incomprehensible by activists and litigants alike. I will mention just one: a decision to not refer to a tribunal a series of disability cases against Montreal’s public transit system, a system which is notoriously, stubbornly and persistently inaccessible for people with mobility restrictions. Only about 15% of the trains and metro cars are wheelchair accessible; buses and paratransit are also highly problematic in terms of accessibility. The Commission decided that the structural and systemic inaccessibility which has persisted in Montreal for a half century is merely bad service— but not discrimination. The Quebec courts last year thought differently; they authorized both a judicial review and a class action on the matter. I believe these cases are still before courts, so I will not comment further, but suffice it to say that such decisions undermine the legitimacy of commissions, which were created because they were supposed to be faster and more sensitive to human rights issues than the courts.

Despite these and other ongoing areas of concern, commissions are enjoying something of a comeback in Canada.  The return of a commission in BC is an important and tangible indicator, as are other developments that signal a more enabling environment:

  • More people are turning to commissions to get things done, as data over the last several decades has shown.[2]
  • There is an improved political climate and tone of debate about human rights in general, recognizing rights-based approaches to public policy. This is especially true at the federal level since 2015, although one must take a wait and see approach to Ontario.
  • Important decisions from the Supreme Court of Canada in cases like Whatcott in 2013 have sent a strong signal about human rights commissions and their role. Not all decisions have been positive. The SCC’s recent decision in Matson and Andrews, preventing the federal Commission from directly challenging human rights legislation, signals the importance of giving commissions the clear legal authority and standing to challenge discriminatory legislation in the courts.
  • The media seems better informed and is reporting on human rights cases and developments more neutrally, rather than as red meat issues to be thrown to a regressive “base’ (mainly the National Post and Postmedia here).
  • The “value” of what commissions and tribunals do is starting to show in damages awards. Having the Human Rights Tribunal of Ontario making damages awards in the $100,000-plus range helps, of course – commentators, journalists and respondents who might otherwise be silent, dismissive, or treat low damages as a cost of doing business, are more likely to sit up and take notice.
  • Commissions themselves are less likely to be subject to ideological attacks: it has been several years since media in Canada have written about commissions in the same breath as Nazis, North Korea, star chambers and, my personal favourite, space lizards.
  • International treaty bodies like the UN Human Rights Committee are explicitly talking about and praising new developments in Canadian human rights systems, such as legislative changes in Newfoundland and PEI, Ontario’s second generation system with its direct access model, and the role of the Canadian commission with respect to Indigenous issues.
  • On the latter point, there is heightened receptivity from the public and the media to Indigenous rights. I attribute that in part to the collective hard work of many of you in this room, over years if not decades, in meshing those rights with a human rights framework in a country that for too many years excluded Indigenous people.
  • The important work being done in the area of corrections and solitary confinement. practices. Years ago, these issues were not on the radar screen of commissions in the country. People like Kim Pate have been working for years to make these issues national priorities and I venture so say they are succeeding, even if the system is far from fixed. I am personally thrilled to see commissions making direct connections between human rights in Canada and international standards like the United Nations Standard Minimum Rules for the Treatment of Prisoners and the Bangkok rules.

Human rights commissions as norms-brokers

The second theme of my remarks is the idea of norms-brokering, which I have adapted from a very interesting article appearing in Oxford’s Human Rights Law Review in 2018 by Michael Hamilton and Antoine Buyse, entitled “Human Rights Courts as Norms Brokers”.[3] As the authors state, “the legitimacy of human rights courts… is better served by rigorous, transparent and reflective consideration of relevant normative developments… [R]obust engagement with external norms can make a net contribution to ‘public reason’ and thereby strengthen the normative baseline protection of human rights.”[4] The article is about court or tribunals, but I would argue that similar reasoning applies to the work of human rights commissions, albeit with a different focus and for different reasons. First generation commissions make gatekeeping decisions. All commissions develop public policy that sets the direction that commissions will take before tribunals and/or the courts. They also engage in public education on the substance of human rights matters that require messaging and exegetical content, function that tribunals lack entirely.

In the past, Canadian commissions have sometimes displayed a woeful inability to explain their work in relation to other norms.  During the Maclean’s hate speech debates that started in 2007, a federal commission employee was cited as saying that the decision to investigate allegations of hate speech into a series of Islamophobic columns had nothing to do with free speech. The unfortunate employee added, for good measure, that we don’t have a First Amendment in Canada. The media went ballistic and the unfortunate comment —which was partly true by the way (we are not subject to the U.S. Constitution in Canada — ricocheted back and smashed commissions in their collective heads. It sounded like commissions did not care about free speech at all. It took years to get the ship right again.

Commissions —because of their public policy and education roles and the close connection of these functions to the protection mandate— are necessarily and constantly in the business of “reasons-giving”, a term used by Hamilton and Buyse. Commissions must provide rational explanations and high-quality justifications for the positions they take and have to fit their work into the broader legal and policy picture, drawing on a wide range of norms, from international human rights norms to the Canadian Charter and to developments in other Canadian jurisdictions. To this list I would add Indigenous legal sources, a growing area of interest and study in Canada. Commissions’ ability to explain themselves, to draw on developments and authoritative justifications from other jurisdictions, and to take into consideration differing viewpoints, can help to defuse legitimacy-based critiques of human rights.

If commissions are unable to do what the authors call “exegetical work”, this work of critical explanation and interpretation, or of pointing to where human rights fit into the broader sociopolitical discourse, their legitimacy and credibility is at risk because, put simply, the public perceives commissions to be unable to explain themselves.

Norms-brokering also helps to defend commissions against allegations of rights inflation/devaluation from critics like Dominique Clément in Canada or Eric Posner in the U.S. who worry about the the state of human rights, the blurred distinction between “real rights” that are properly justiciable and “mere” social justice claims that are not. Accusations of an undue inflation of rights are especially related to economic, social and cultural rights.

And yet, it is trite law—fundamental to any justice system worthy of its name—that any right must have a corresponding remedy. Economic, social, and cultural rights (ESC rights) have been in place for decades and are partially protected in human rights laws Canada, at least as regards equality issues linked to employment, housing, social condition, receipt of services, or being on social assistance.

Traditional civil libertarians see ESC rights and the proliferation of rights in general as evidence of an undue expansion of human rights.  Eric Posner suggests that widespread global human rights violations are proof positive that human rights do not have the capacity to meet expectations, that human rights have failed because there are still major human rights violations.

With respect to the rights inflation critique, it is troubling that we never ask of other areas of law that which is demanded of human rights by the critics. No one argues that we should suppress new forms of Intellectual property or restrict their development based on rights and the state of society that existed a half-century ago. As for the accusation that ongoing significant violations are evidence of the failure of right, it would beggar belief to suggest that the many criminal cases before the courts constitute proof that criminal law has failed and is somehow superfluous. It would be absurd to suggest that the fact that China, one of the world’s leading economies, systematically flouts intellectual property rights is a sign that we should jettison those rights. Equally troubling is the restriction in the ”too many rights” argument which would deny human rights the capacity to evolve to ensure that human rights law can address a wider cross-section of humanity and a more complete range of situations in which people  should be able to access justice.[5] Norms-brokering is important because it helps deal with emerging and indeterminate rights and with new legal challenges to traditional interpretations. Rights develop new contours when changes to historical matrices of fact and law alter the content of those rights or extend their protection to wider classes of human beings. This was true in the area of gender identity and expression. Sexual harassment is another example: Canadian courts in Canada did not fully recognize sexual harassment as a form of sexual discrimination until 1989.[6]  And even then there have been local differences in how the law is applied. British Columbia did not include the sexual harassment of tenants, for example, as a form of discrimination until as late as 2012. [7]

More recently, the #MeToo movement fundamentally changed how we talk about and publicly react to sexual harassment. I was very interested to see that the Australian human rights commission this week announced the world’s first national inquiry into sexual harassment in the workplace. In Canada, each human rights commission deals with harassment complaints on a regular basis, and employment remains the most significant area of complaints before Canadian human rights systems. But actually launching a national inquiry on the topic is something else again and points to a wider scope of remedial approaches than complaints alone.

As norms brokers, human rights commissions need to be actively debating critics and countering their arguments. Another way into norms-brokering is through international law as a key normative source for commissions.

Human rights transcend provincial and national borders

International human rights law is fundamental to what human rights commissions do at home. Human rights leaders in Canada like Shelagh Day and Gwen Brodsky and, in Quebec, Pierre Bosset, Lucie Lamarche and Nicole Filion, among others, have been making similar points for years.

What does this mean in practice? It certainly does not mean that everyone should be traipsing off to Geneva go to UN meetings. It does mean that commissions should take the time to integrate international standards into their work, including protection work, and to reflect on and consider the comments of UN treaty bodies, in a systematic way.  I would add that international standards are also important to provincial and territorial commissions, and not just the federal commission. Most international human rights instruments are directly relevant to the jurisdiction of all commissions, including aspects of economic and social rights mentioned earlier, and the rights of persons with disabilities in particular.

Without stealing the thunder of those who will be speaking to this point later on, it is perhaps appropriate to prepare the ground by noting that commissions have areas of shared concern that repeatedly find their way into UN treaty body reports on Canada. Every commission in the country should be able to get behind these issues:

  • Gender equality and the wage gap
  • Fighting violence against women, especially Indigenous women
  • Confronting and addressing discriminatory police conduct, and monitoring police handling of public demonstrations.
  • Disaggregating data on the impact of stop and search provisions on minorities, as well as the use of force
  • Prison conditions and especially the use of solitary confinement
  • Arbitrary detention of immigration and refugees and the impacts on minors, an issue that has been much in the news lately.
  • Ensuring we have adequate tools to combat hate in addition to the tools available at the criminal level.[8]

As well, human rights commissions should be actively advocating for the ratification of international human rights treaties.[9] The Global Alliance of National Human Rights Institutions has observed that advocacy for the implementation of international standards is fundamental to the work of human rights institutions.

My respectful view is that explicit norms-brokering offers a useful tool to strengthen the work that commissions do already, and builds capacity to address new and emerging areas. This work certainly can be done within the parameters of existing statutory mandates; it took several years to fully integrate a systematic use of alternative norms (mainly international norms) into the Ontario commission’s policy work and it is very gratifying today to see the Commission continuing that work in a powerful way and developing it further.

In Quebec, the commission has been using international standards for years and it has been one of the leaders in Canada in using comparative and integrated approaches to alternative norms when informing its own position.

Contributing to public reasoning 

Contributing to ‘public reasoning’ enhances the intelligibility of commissions’ work and improves the accessibility of own decisions, be they decisions as gatekeepers, as parties before tribunals, in their policy work, and in their public education work. Norms-brokering is also essential for human rights commissions because equality rights and discrimination law can rarely be discussed in isolation without also engaging with other rights and norms.

Consider, for example, the increasingly busy intersection between civil liberties and equality rights:

  • Recent developments in the areas of corrections, especially in solitary confinement, noted earlier, that engage not only with equality but with Charter legal rights and international law and standards like the ICCPR, the CAT, and the Bangkok and Nelson Mandela rules.
  • The fight against racial profiling has been ongoing for years, but it is worth noting the interconnected issues of arbitrary detention and security of the person.
  • Anti-bullying measures: The Yukon commission has spoken out on the issue of bullying and proposed regulatory measures to address it, that engage not only with equality, but also with other norms like privacy and security of the person.

As well, it is almost impossible to discuss the prevention of discrimination in areas where speech and religion are engaged, without also considering the impacts on these freedoms. And one cannot overlook the federal litigation dealing with the safety and security of First Nations children, in addition to their equality rights, all of which are front and centre in the federal Caring Society case.

There are other developments happening under our collective noses that are already in plain sight and merit mentioning. They include the development of artificial intelligence and its implications for persons with disabilities and the right to reasonable accommodation; the impact of IT on disadvantaged groups and on children (parenthetically, the Children’s Commission in the UK has announced that it is suing social media and gaming platforms for millions of pounds because of the impact of these technologies on children’s health, concentration and physical activity) and, finally, controversies over safe spaces that are pervasive in universities across Canada and the US, and which engage strongly with equality, but also with freedoms of speech, conscience and association.

We should look to the narrowing space between human rights and environmental rights. In New Zealand, Ecuador and India, rivers have been given the capacity to be considered as “legal persons” under the law and the ability to claim rights that extend well beyond those dictated by particular human needs. Western legal systems are only now coming to grips with Indigenous legal traditions that have always had a more holistic understanding of the earth and its complex systems and inhabitants. More transsystemic approaches, if I can borrow that term, may take us down a similar path one day in terms of our understanding of human rights and its link to other legal relationships.

A friend of mine always ends his emails with George Orwell’s observation: “To see what is in front of one’s nose needs a constant struggle.” Challenges from the past and the new ones in our future are the subject of that struggle.  On that note, now seems a good time to end these remarks, hoping that I will be able to get a hike in later today.

Thank you for your attention.


ENDNOTES 

[1]  The data supporting this conclusion is discussed in the 2014 monograph, Speaking Out on Human Rights: Debating Canada’s Human Rights System (McGill-Queens University Press).

[2] Note 1.

[3]  Michael Hamilton and Antoine Buyse, “Human Rights Courts as Norms Brokers”, (2018) 18 Human Rights Law Rev. 205.

[4]  Ibid., 207.

[5]  These sections of my remarks are drawn from Eliadis, “Too Many Rights?” in Dominique Clément. ed. Rights Inflation and the Crisis of Canada’s Rights Culture. Wilfrid Laurier University Press (forthcoming, 2018).

[6] Janzen v. Platy Enterprises Ltd, [1989] 1 SCR 1252.

[7] Friedman v. Garvie, 2012 BCCA 445.

[8]  See, e.g. UN, Human Rights Committee, Concluding observations on the sixth periodic report of Canada, CCPR/C/CAN/CO/6 (13 August 2015). Similar reports are available on ESC rights, women’s rights, and the rights of racial minorities.

[9]  E.g., the International Convention for the Protection of All Persons from Enforced Disappearance, the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, the Optional Protocol to the Convention on the Rights of Persons with Disabilities, and the ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169).

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