View Point

Commentary on new developments in human rights law published in the Human Rights Digest newsletter.

At the time of the #MeToo movement, examination of available procedures for obtaining remedies for sexual harassment and sexual assault has become particularly important. The Human Rights Tribunal of Ontario issued a recent decision in G.M. v. X Tattoo Parlour that demonstrates an additional way in which human rights complaints can assist women who are harassed and assaulted.

Customarily, in human rights complaints filed by women who are harassed at work, both the facts and the remedy are decided by a Tribunal.  In the case of G.M., however, the facts were decided by Justice J.M. Grossman of the Ontario Court of Justice in May 2016 in a criminal hearing of charges against the respondent. The Human Rights Tribunal of Ontario ruled solely on remedy, awarding G.M. $75,000 as compensation for the injury to her dignity and self-respect.

The complainant in this case, G.M., was fifteen years old. The respondent was a family friend, and G.M.'s mother and the responden's wife were best friends. The respondent opened the X Tattoo Parlour with a loan from G.M.'s parents.

G.M. loved to draw and planned a future as a tattoo artist. She had some struggles in school and at home, but she began to improve her grades and to work as a volunteer. In 2014 G.M. asked the respondent if she could volunteer in the tattoo parlour and train to do tattooing. It was agreed, and she began to volunteer in the summer of 2014.

At the tattoo parlour, the respondent asked her intrusive and embarrassing questions about her gender preference and sexual activities. She tried to avoid these discussions. On August 27, 2014, when she was alone at the tattoo parlour with the respondent, he assaulted her, showed her his penis, inserted his finger in her vagina and put his mouth on her breasts. He also offered her money and a free tattoo in exchange for sex. The respondent pleaded guilty to criminal charges of sexual assault, invitation to sexual touching and sexual interference. The Tribunal accepted the findings of fact made by the court.

As Kasari Govender, Executive Director of West Coast LEAF (Women's Legal Education and Action Fund) pointed out at the recent conference of the Canadian Association of Statutory Human Rights Agencies in Whitehorse, Yukon, the benefit to G.M. of the Tribunal's acceptance of the fact-finding from the criminal hearing is that she could seek a human rights remedy, without having to testify one more time about the facts of the assault and sexual interference, in other words, without being re-traumatized. At the human rights hearing, the focus was on G.M. and the harm done to her by the respondent's conduct.

As a result, G.M. says that the Tribunal's award provides justice that she didn't receive through the criminal trial. "It made me feel that for the first time I had achieved something, within this whole case, that didn't leave me extremely disappointed …" (Huffington Post, March 30, 2018).

The Tribunal's decision also provides justice because of the amount of the award. Awards in sexual harassment cases are rising, as they should, to reflect the seriousness of the violation that has occurred. In this case, the Tribunal took into account her age and the serious breach of trust that was involved. Hopefully, the amount also reflects a growing understanding that sexual harassment is no joke.

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The Canadian Human Rights Tribunal, in its latest decision on remedy in the First Nations Family and Child Caring Society case (CHRR Doc. 18-3021), rejects a series of arguments made by the Attorney General of Canada (“Canada”) that would have the effect of gutting the Tribunal's capacity to deal with discrimination or provide a remedy for it. It is impossible to read this decision without asking: why does Canada want to do this? why try, in litigation, to deconstruct the powers of the institution Canada established to protect the human rights of the most disadvantaged people?

 

Fortunately, the Canadian Human Rights Tribunal repudiates these arguments clearly, but also, understandably, with some palpable irritation. This case has been before the Tribunal since 2010, and Canada has made these arguments repeatedly. Most recently, the Tribunal is dealing with allegations from the complainants of non-compliance with its remedial rulings, and motions for immediate relief. But Canada is still making these arguments, even though they were rejected by the Tribunal when it decided on the merits of the case (83 C.H.R.R. D/207), and the Government of Canada decided not to appeal that decision.

 

So, what are these arguments?

 

First, Canada contends that because of the separation of powers between different branches of government, the Tribunal should leave the precise method of remedying the discrimination to the administrative branch of government. In particular, Canada says, the Tribunal should not make decisions that require the government to spend money.

 

But, as the Tribunal replies, when it is making remedial orders, the Tribunal is not usurping the power of other branches of government; it is using the remedial powers in its own statute to address past discriminatory practices and prevent future ones. Any order made by a Tribunal, especially in systemic cases, will have financial implications. To deny the power to the Tribunal to make such an order would render it incapable of doing its duty under the Canadian Human Rights Act.

Canada must accept, the Tribunal says, that liability was found and remedies flow from that. That means funds must be provided to comply with the Tribunal's decision. Despite the fact that the Tribunal decision is legally binding, Canada keeps signaling that the Tribunal has no power and human rights violations will only be remedied when and if Canada finds money in its budget. In bold letters, the Tribunal says “this case … deals with the mass removal of children...from their families and communities. There is urgency to act …”

 

Secondly, Canada argues that it needs to consult with all First Nations communities before it can implement the Tribunal's remedial orders, as it cannot make unilateral decisions. The Tribunal agrees that consultation is necessary for long term reform of on-reserve child welfare programs. But it finds that this does not prevent Canada from providing immediate relief from the discrimination that results from its own policies and practices. This is an important ruling from the Tribunal. Consultation is an important right of Indigenous peoples, but it must not be used as a means of obstructing and delaying the implementation of rights, rather than enhancing or furthering them.

 

Thirdly, Canada blames the provinces. Again, the Tribunal agrees that Canada has to work with the provinces. But, it says, “Canada simply cannot hide behind the provinces' responsibilities to shield itself from its own …” 

 

This is a remarkable scolding for the Tribunal to deliver, and shameful that it has to deliver it. These arguments are shoddy and embarrassing, and they should be shelved permanently.

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The Northwest Territories Adjudication Panel recently handed down a decision that is important beyond the tiny Hamlet of Tuktoyaktuk, which is the respondent in the case, and beyond the borders of the Territory (Bates v. Northwest Territories (Education, Culture and Employment), CHRR Doc. 17-3097). It is a decision on the meaning of the ground “social condition”. Because there are not many such decisions, each one is significant.

Only Quebec and the Northwest Territories have human rights laws that include the ground social condition. Other provincial and territorial laws include source of income or receipt of public assistance, but sometimes only in the prohibitions against discrimination in tenancy (Ontario and British Columbia). The Canadian Human Rights Act contains no prohibition against discrimination on the ground of social condition or any similar poverty-related prohibition. Social condition is a broader and better term and should be included in all human rights legislation now.

Because legislation lacks the ground social condition or includes only a narrow version of it, the application of human rights law to discrimination because of poverty, homelessness, and related conditions, is remarkably underdeveloped in Canada.  Legislative reform to strengthen protections, steps to encourage and support the use of existing protections, and solid, thoughtful adjudication are badly needed.

All the more reason to cheer for the decision of the NWT Panel in Bates, which ruled that providing food vouchers to income assistance recipients, which can only be used in the Hamlet's two stores, constitutes discrimination on the basis of social condition. The Hamlet changed from providing monthly cheques for the whole of the income assistance amount to providing food vouchers in September 2011, apparently because of concern that children were coming to school hungry. There was no evidence that the hungry ones were the children of income assistance recipients. Nor was there any evidence that the food voucher system, in the years it was in place, made any difference to the children's hunger.

The Panel found that the change from cheques to food vouchers was based on a derogatory belief that income assistance recipients spend their money on alcohol, drugs, and candy, rather than on food for their children. The complainants testified that the food vouchers made them feel humiliated and demeaned, as though they could not make reasonable decisions about how to spend their income assistance and look after their families. The food voucher system also meant that they had no cash to buy country foods (moose, ptarmigan, goose, whale, berries) from local hunters and fishers. Nor could they shop in the town of Inuvik when there was the opportunity, where some food is cheaper, and choice is greater.

Embarrassingly, the reply to the complaint from the Government of the Northwest Territories was that there was no discrimination inherent in the food voucher system, because all welfare recipients in Tuktoyaktuk were treated the same. This is a bit like saying that providing no ramps for wheelchair users is not discriminatory because all wheelchair users are treated the same. By now, formalistic arguments like this one should be banished from the lexicon of arguments that Crown lawyers rely on. They are too old, too tired, and too discredited to be offered in defence of government conduct.

That said, we applaud the Pane's conclusion that the food voucher system discriminates against income assistance recipients in Tuktoyaktuk and look forward its decision on remedy.

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Federal, provincial and territorial Ministers responsible for human rights met in Gatineau, Quebec between December 10 and 12, 2017, to discuss key priorities of their governments in relation to the implementation of Canada's international human rights obligations. Statutory human rights laws, commissions and tribunals are key instruments and institutions for fulfilling the human rights that Canada has endorsed in international human rights treaties, and for providing remedies when those rights are violated. Representatives from human rights commissions were present at this historic meeting.

A small group of Indigenous organizations and civil society groups were invited to attend.  This is their joint statement.

Almost seven decades ago Canada joined other states1 in adopting the Universal Declaration of Human Rights, agreeing that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.  The Declaration and other principles of international law, make it clear that these universal human rights principles are binding on all levels of government within a country.  That is why this meeting of federal, provincial and territorial Ministers responsible for human rights in Canada is of such importance.

Despite obvious human rights advances in Canada over the 69 years since the Universal Declaration was adopted, there remain many significant and glaring gaps and failures.  Those shortcomings have been repeatedly highlighted over the years in examinations of Canada's human rights record carried out by treaty-monitoring committees, independent experts and other governments, through the many human rights review processes states have developed within the United Nations and Inter-American human rights systems.  Important, constructive recommendations for reform have been made to Canada.  But Canada's record of taking up those recommendations and thus complying with the country's international human rights obligations has been inconsistent at best and an abject failure at worst.  International bodies have consistently called on Canada to develop a better approach.

Indigenous peoples organization and civil society groups have, on many occasions, called for a strengthened and improved system for ensuring effective international human rights implementation in Canada.2  We have always stressed it is important to improve the protection of human rights domestically and also to demonstrate strong global leadership in a world desperately in need of countries prepared to meet their international obligations.

Without action by … [federal, provincial and territorial ministers responsible for human rights] … the inter-governmental coordination needed to ensure that Canada's international human rights obligations are meaningfully and consistently implemented will remain elusive …

We offer the following recommendations as to key principles and concrete action we hope you will commit to in agreeing to close Canada's international human rights implementation gap.

1.      Recognize that you are Canada's international human rights implementation leadership team

-        Take responsibility for ensuring a whole of government approach to international human rights implementation.

-        Establish an inter-governmental working group at deputy ministerial level tasked with developing a new legal framework for international human rights implementation in Canada, in close consultation with Indigenous peoples organizations and civil society groups.

-        Agree to meet again in December 2018 to mark the 70th anniversary of the Universal Declaration of Human Rights and report on progress towards a new model.

-        Commit to meet regularly going forward.

 

2.      Embrace the following six principles at the heart of a new human rights-based framework for international human rights implementation in Canada

-        Recognize and respect the rights of Indigenous peoples, guided by the UN Declaration on the Rights of Indigenous Peoples.

-        Adopt an intersectional feminist approach to upholding human rights.

-        Apply a racial equity impact lens and a disability-based inclusion lens to Canada's international human rights implementation framework.

-        Commit to substantive equality to address systemic discrimination and marginalization.

-        Address intersecting forms of sexism, racism, ableism and other forms of discrimination.

-        Acknowledge that the fulfillment of economic, social and cultural rights is a threshold requirement for the enjoyment of civil and political rights, particularly for those groups that are most disadvantaged, and that all human rights are universal and interdependent.

3.      Provide a genuine and meaningful role for the following groups and institutions in implementing international human rights in Canada

-        Indigenous peoples organizations, including Indigenous women's organizations

-        Civil society groups, especially those working directly with marginalized and subordinated communities and groups 

-        Parliament and legislatures

-        Federal, provincial and territorial human rights commissions and tribunals

4.      Ensure that accountability and access to justice and effective remedies are the hallmarks of Canada's approach, at all levels of government, to international human rights implementation

-        Canada must recognize that access to justice and effective remedies is critical for all human rights, including economic, social and cultural rights.

-        In addition to ratifying the Optional Protocols to the Convention on the Rights of Persons with Disabilities and Convention against Torture, Canada should ratify the optional complaints procedures for the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of Racial Discrimination and the Convention on the Rights of the Child.

-        Collect and publish data disaggregated with respect to sex and gender, Indigenous, racial and ethnic identity, disability and other characteristics relevant to identifying, understanding and addressing patterns of human rights abuse.  

-        Establish mechanisms for ongoing inter-governmental coordination at a level of authority that allows for accountable decision-making.

-        Regularly report publicly on implementation, against timelines and benchmarks.

-        Institute an independent oversight body to report on Canada's progress toward meeting its international human rights obligations.

Notes

1.      The Universal Declaration of Human Rights was adopted by the United Nations General Assembly on December 10, 1948.

2.      Empty Words and Double Standards: Canada's Failure to Respect and Uphold International Human Rights, 2012, http://www.amnesty.ca/get-involved/lead-in-your-community/empty-words-and-double-standards-canadas-failure-to-respect-and-; Promise and Reality: Canada's International Human Rights Implementation Gap, 2008, http://socialrightscura.ca/documents/UPR/JS1_CAN_UPR_S4_2009_SocialRightsAdvocacyCentre_Etal_JOINT.pdf.

 

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The decision of the Supreme Court of the Northwest Territories in Northwest Territories v. Portman (No. 2) (2017 NWTSC 61, CHRR Doc. 17-3077) is dismaying. It does not fit the times, or the serious problems that there are in Canada with access to justice.

Lack of legal aid funding to support access to justice, particularly for poor and vulnerable individuals, is a notorious problem, commented on repeatedly by Canada's Chief Justice, the Honourable Beverley McLachlin. The lack of legal representation for human rights complainants is also a notorious problem, not just in the Northwest Territories, but in many jurisdictions in Canada. In British Columbia, the B.C. Human Rights Tribunal, in its annual report, recently highlighted the fact that complainants appearing before the Tribunal with legal counsel are markedly more successful than complainants who represent themselves, skewing the fairness of the system.

Human rights matters are complex and complainants need experienced counsel.  Elizabeth Portman presented compelling evidence that, as a woman with multiple sclerosis, her ability to represent herself in a human rights complaint is seriously compromised. Ms. Portman's multiple sclerosis causes fatigue, pain, and diminished cognitive functioning and ability to communicate. These symptoms are exacerbated by stress. She testified that she could not participate in a hearing for more than four hours per week, and when her condition worsens, she would be incapable of participating in a hearing at all.

How dismal it is, then, to find the Supreme Court of the NWT resorting to the hackneyed argument that Ms. Portman was not discriminated against when she was denied legal aid for her human rights complaint because the Legal Services Board does not provide legal aid for human rights complainants. The Court says the service she claims she was denied does not exist; consequently, there was no discrimination.

According to the Court, the Legal Services Board only provides legal assistance to eligible persons for specific types of legal problems. Ms. Portman cannot require the Legal Services Board to expand its mandate to provide her with legal aid for human rights complaints.

For people with disabilities, this is a familiar argument: The service you need is not provided, so you are not being discriminated against. This reasoning fails to engage with the practical realities that people with disabilities face. People with disabilities consistently have to argue that omissions, failures to provide services that will give them meaningful access, are discriminatory.

The Court denied that Ms. Portman's complaint was like Jeffery Moore's (Moore v. British Columbia (Education), 2012 SCC 61, 75 C.H.R.R. D/369). Jeffrey Moore complained that he was discriminated against by the North Vancouver School District when it failed to provide the special services he needed because of his severe dyslexia. In that case, the Supreme Court of Canada ruled that Jeffrey Moore was discriminated against because he needed special assistance in order to access the general education that the District provides to all children.

Similarly, Ms. Portman needs legal aid in order to make the human rights process useable for her. And, as a person with a disability, access to the human rights process, so that she can be heard when she is discriminated against, is fundamental for Ms. Portman.

The Court's attempt to distinguish Moore is not persuasive. After so many years of litigation on disability issues, people with disabilities expect courts to have moved on from the simple assertion that the non-existence of a service is a complete answer to a complaint of disability discrimination.

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British Columbia has a new government, and the New Democratic Party leadership has hastened to fulfill an important election promise, that is, to re-establish the B.C. Human Rights Commission.

B.C's history with its human rights institutions has been a rocky one. B.C. first got a human rights commission in 1973 and it operated for 11 years before being disbanded in 1984 by Premier William Bennett. After an interim Human Rights Council, the Commission was later re-instituted in 1997, but it lasted for only five years, until 2002, when it was disbanded again by Premier Gordon Campbell. Since 2002, B.C. has been the only province in Canada without a human rights commission. It has had a stand-alone Human Rights Tribunal that is authorized to hear and adjudicate complaints. But it has had no commission to be a public voice for human rights, to take steps to prevent discrimination, educate the public, undertake inquiries on broad systemic issues, develop guidelines and promote human rights compliance.[1] 

In a 2011 report Mary Cornish pointed out that “eliminating discrimination is not simply a matter of designing a good tribunal process”, though that is a key building block. A human rights system must also be able to take the broader actions that can “transform the dynamics that support discrimination”.[2]

B.C. has a big gap to fill, and a 15-year public silence on human rights issues to break. It is encouraging that the new government is moving quickly, and that it has already publicly stated that having a tribunal for adjudicating and mediating complaints is essential, but not all that is needed to make a strong and stable human rights system. The release on the consultation process, which will take place between now and the end of November 2017, says: “… addressing discrimination after it happens is not enough. To prevent both every day and systemic discrimination before it happens, information and education are essential … The Commission will work to expose, challenge and end widespread entrenched structures and systems of discrimination through education, policy development and public inquiries”.[3]

We believe that the best model to follow now is Ontario's tri-partite system, which has a tribunal, a commission, and a clinic to assist those with human rights complaints. This model provides the range of powers that a human rights system needs both the preventive and pro-active roles, and the adjudicative and remedial ones. New human rights leaders, like the Chief Commissioner of the Canadian Human Rights Commission, Marie-Claude Landry, and the Chief Commissioner of the Ontario Human Rights Commission, Renu Mendhane, will be able to offer B.C. useful and practical advice about what they have learned in their roles.

We look forward to a dynamic consultation process in B.C. and to a new human rights commission in 2018.

 

Shelagh Day, President and Senior Editor,
Canadian Human Rights Reporter

______________

1.   This volatile history, and the resulting gap in B.C.'s human rights system, is documented in Shelagh Day and Gwen Brodsky, Strengthening Human Rights: Why British Columbia Needs a Human Rights Commission, Canadian Centre for Policy Alternatives and Poverty and Human Rights Centre (2015), online: https://www.policyalternatives.ca/sites/default/files/uploads/publicatio...

2.   Mary Cornish, “Building a Culture of Equality Through Human Rights Enforcement” (Whitehorse: Government of Yukon, 2011) at 3, online: http://www.justice.gov.yk.ca/pdf

3.   B.C. Human Rights Commission, Parliamentary Secretary's Terms of Reference, online: http://engage.gov.bc.ca/bchumanrights/parliamentary-secretarys-terms-of-reference/

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Reconciliation means … what? We seem to have lost the thread here. In the last few weeks, the Trudeau Government has deliberately increased distrust and conflict, not respect and conciliation.

First, the Government stripped the Senate's historic amendment from Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration). The Senate's amendment would, finally, have extended equality with respect to status, and transmission of status, to First Nations women. But in the Committee on Indigenous and Northern Affairs, the Liberal majority stripped out the Senate's amendment, and every Liberal Member of Parliament, except Hunter Tootoo and Nathaniel Erskine-Smith, stood in the House of Commons on June 20, 2017, and voted for a stripped down Bill S-3 that re-enacts the core sex discrimination that Indigenous women have been struggling to end for 50 years.

Three days later Indigenous and Northern Affairs Canada (“INAC”) announced that it will ask the Federal Court to quash the Tribuna's remedial order on Jordan's Principle. This order follows the Tribunal's decision on the merits (83 C.H.R.R. D/207), in which it ruled that INAC discriminates against First Nations children by underfunding on-reserve child welfare services.

Jordan's Principle is a protocol intended to ensure that where a government service is available to all other children, but a jurisdictional dispute regarding services to a First Nations child arises between Canada, a province, a territory, or between government departments, the government department of first contact pays for the service and can seek reimbursement from another government or department after the child has received the service. It is a child-first principle meant to prevent First Nations children from being denied essential public services, or experiencing delays in receiving them, because of inter-governmental disputes about which level of government is responsible.

The Canadian Human Rights Tribunal found on May 26, 2017 (CHRR Doc. 17-3036), that INAC was still interpreting Jordan's Principle narrowly and not applying it effectively. The Tribunal said INAC's approach does not remedy the discrimination against First Nations children.

INAC takes issue with the Tribunal ruling that initial determinations of requests for health services for First Nations children should be made within 48 hours, and that INAC should stop service delays caused by case conferencing, policy reviews, and other similar administrative procedures, before funding is provided.

Ministers Bennett and Philpott, speaking as family doctors, say this ruling will prevent doctors and health providers from conferring about a child's health. But Cindy Blackstock, who represents the First Nations Family and Child Caring Society, says the Society has never argued against case conferencing for medical purposes. It is case conferencing over who will pay that blocks the children from getting services quickly. Why appeal, asks Ms. Blackstock? Why not just seek consent from us that medical conferencing is not included? Why not go back to the Tribunal for clarity on the point? Why seek to quash the order when there is so much need, and so much urgency?

The danger of delay in providing services to First Nations children was dramatically revealed by the evidence before the Tribunal regarding the suicides in January 2017 of two 12-year-old girls who were members of the Wapekeka First Nation (“Wapekeka”). Before the loss of these children, Wapekeka had alerted the federal government, through Health Canada, to concerns about a suicide pact amongst a group of young children and youth. The First Nation made a detailed proposal in July 2016 proposal seeking funding for an in-community mental health team as a preventative measure.

The Wapekeka proposal was left unaddressed by Canada for several months with a reactive response coming only after the two girls committed suicide. In the media, Health Canada acknowledged it had received the July 2016 proposal in September 2016; however, it came at an “awkward time in the federal funding cycle”. Canada provided assistance once the Wapekeka suicides occurred. The Tribunal found that this situation highlighted the need for a change in the process around Jordan's Principle.  

Stripping the Senate's amendment out of Bill S-3, and the moving to quash the Tribunal's order, are outright refusals to correct obvious violations of the human rights of First Nations women and children. They belie the Trudeau government's espoused commitments to women's equality and to renewing "the most important relationship" with Indigenous peoples. According to the Truth and Reconciliation Commission, reconciliation requires respecting the "constitutional and human rights" of Indigenous peoples, and "constructive action on addressing the ongoing legacies of colonialism”. Neither is happening in these cases.

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Justice Clément Gascon of the Supreme Court of Canada just did something startling, and excellent. He wrote a dissent in Stewart v. Elk Valley Coal Corp. that drives some truck-size holes through a sloppy majority decision from Chief Justice McLachlin. Too bad he stands alone, but he certainly stands out. And his decision is a relief.

Stewart v. Elk Valley is a decision about drugs, safety and big machinery. This combination seems to seriously interfere with the reasoning capacities of adjudicators and judges. Gascon J. states at the beginning of his judgment: “I fully appreciate the safety-sensitive environment at the workplace of Elk Valley, and how that environment motivates strict drug policies for employees. Nevertheless, such policies, even if well-intentioned, are not immune from human rights scrutiny”.

The majority of the Supreme Court of Canada upheld the Alberta Human Rights Tribuna's ruling (CHRR Doc. 13-3176) that Mr. Stewart was not discriminated against when he was terminated from his employment at Elk Valley.

Ian Stewart began working for Elk Valle's predecessor company in 1996.  He became a certified wheel loader operator. In October 2005, Mr. Stewart was involved in an accident at work. His loader bucket struck and broke a mirror on a stationary 170-ton truck. Mr. Stewart was directed to undergo a urine test, and he tested positive for cocaine. During a meeting with Elk Valley and union officials, Mr. Stewart admitted to using crack cocaine on his days off. Mr. Stewart had never approached anyone in the company or the union to say he had a drug use problem or to seek rehabilitative assistance. Mr. Stewart agreed subsequently that he was drug-dependent, although he did not recognize it at the time.

Immediately after the accident, Elk Valley terminated Mr. Stewart's employment on the grounds that he had violated the company's Alcohol and Drug Policy. The Policy states that, because safety in the workplace is of utmost importance, employees must disclose a dependency on alcohol or drugs. The Policy states that the company will terminate an employee who breaches the Policy.

The Alberta Human Rights Tribunal ruled that Mr. Stewart was not fired because he was drug dependent, but because he breached the Policy. It said no prima facie case of discrimination was made out. The Tribunal went on to consider whether, if there was discrimination, the company could have accommodated Mr. Stewart without undue hardship. The Tribunal concluded that it would be an undue hardship for the employer to change the termination Policy because its goal was to be a deterrent to drug use.

Gascon J. found several problems with the Tribuna's reasoning, which was successful at each level of court, as well as with the majority of his Supreme Court colleagues.  Justice Gascon points out that, even though it is now accepted law that drug dependency is a disability and human rights law applies, drug-dependent persons can still be caught in “a majoritarian blind spot” because of the stigma that surrounds drug-dependency; courts may suffer from this blindness.

One of the ways this shows up in Stewart, according to Gascon J., is that some evidence gets overlooked. There was no finding of fact, for example, that Mr. Stewart was under the influence of drugs at the time of the accident, or that the accident was related in any way to drug use. Rather, Mr. Stewart had an accident and subsequently tested positive for drugs that, according to the company's expert, he used more than 21 hours before the incident.

Gascon J. is particularly troubled by the Tribunal's ruling that there was no prima facie discrimination. He finds that the Tribunal emphasized the fact that Mr. Stewart's drug dependence was not completely incapacitating, and that he was still able to make choices about where and when to use drugs. This emphasis was “completely misplaced”, says Gascon J., because it substitutes the proper inquiry – whether drug-dependent persons are adversely affected by an employer's drug policy – with an improper inquiry, namely, whether drug-dependent person are in control of their actions.

The inquiry becomes about “choice”. Mr. Stewart in this case was presumed to have been able to choose to adhere to the Policy, and chose not to. Since, as a drug-dependent person, he was then treated in exactly the same way a non-dependent person, or casual drug user, who violated the Policy would be, his drug dependency was not considered a factor in his termination.

But Gascon J. points out that only drug dependent persons will have difficulty adhering to the drug Policy, and so formal equality, and equal application of a rule to persons who are differently affected by it, does not amount to non-discrimination. Gascon J. finds that the evidence showed that Mr. Stewart's addiction was a factor in his drug use, and in turn, in his violation of the Policy.

Gascon J. also disagrees with the analysis of reasonable accommodation. Elk Valley provided Mr. Stewart with no accommodation at all. Mr. Stewart did not believe that he had a drug problem, and so did not disclose it. When it was determined, and he agreed, that he did have a drug dependency, he was fired. The offer that he could re-apply for his job in six months, was not an offer of accommodation at all, since accommodation is intended to be implemented during employment and to assist an employee to sustain it.

Gascon J. found that the Tribuna's decision on both issues was unreasonable. He would have allowed the appeal. By writing his dissent, he has provided a sharp lesson on the “majoritarian blind spot”.

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Everyone who cares about the life-threatening discrimination that Indigenous women and girls face in Canada is deeply worried now about the National Inquiry on Missing and Murdered Indigenous Women and Girls. The Inquiry has suspended meetings, and some advocates have issued an open letter expressing concerns about the Inquiry's faltering beginning.

One of the concerns is that, so far, the Inquiry's efforts to reach out to family members, and survivors of violence, have been confused and ineffective. This is a threshold problem, since hearing from family members is vital to the Inquiry's work.

We also have to be concerned, however, about whether the National Inquiry will be a robust mechanism for examining the facts and holding governments to account for their failures to address the long-standing systemic discrimination and the marginalization of the women. Only if it is, can we expect the crisis of violence to end.

The Inquiry's capacity to engage with discrimination that has deep roots, and is embedded in institutions and policies, is extremely important. None of our established domestic mechanisms can really handle a crisis of this kind.  Canadian courts, despite being the central mechanism for holding governments to account for their compliance with constitutional equality rights, cannot comfortably engage with this crisis of sexualized and racialized violence; courts prefer individual cases, narrow questions, and uncomplicated causality.

Because neither Canadian governments, nor Canadian courts, recognize social and economic rights as real rights, there is no venue for holding governments to account for the dismal social and economic conditions of Indigenous women and girls, which are a root cause of the violence. Shockingly, Canada cannot even say that it has effective mechanisms in place to hold police to account when they discriminate, even in brutal ways.

In contrast, international and regional treaty bodies can respond to a systemic human rights crisis, and have carefully defined the obligations of governments to prevent and remedy violence against Indigenous women and girls.  In 2015, after an investigation in Canada, the United Nations CEDAW Committee found that Canada is in grave violation of the rights set out in the Convention on the Elimination of Discrimination against Women and made 38 recommendations about measures to take. The Inter-American Commission on Human Rights also investigated the murders and disappearances, and made similar and overlapping recommendations. But Canada has no plan to implement these recommendations, and there is no mechanism for turning them into domestic action. They are not reviewed in Parliament or Legislatures; they simply languish.

That is why we now have a National Inquiry, in response to the demand from Indigenous women and human rights activists that governments create an accountability mechanism that can move us from crisis to change. This is fundamentally important. Lives are at stake, and Canada, as a nation, must take clear responsibility for the continuing deadly effects of its colonial past on Indigenous women and girls.  The Inquiry needs to be sturdy enough to hold Canadian governments to account and to make them act.

The question for all human rights advocates now is: how can we make sure this happens? The Inquiry cannot be allowed to fail.

* An earlier version of this column appears on the website of the Canadian Civil Liberties Association: https://ccla.org/act-freedom-2017-shelagh-day/

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The First Nations Child and Family Caring Society was before the Canadian Human Rights Tribunal again recently. The Society claims that Indigenous and Northern Affairs (“INAC”) has not complied with the Tribunal's orders and it has asked the Tribunal for a non-compliance order. The issue is the ongoing under-funding of the on-reserve child welfare system, which results in Indigenous children going without services and being removed from their families, in disproportionately high numbers.

In its decision on the merits, issued in January 2016 (83 C.H.R.R. D/207), the Tribunal found that the complaint of systemic discrimination was substantiated; it ordered the federal government to cease its discriminatory practices, and to reform the First Nations child welfare program. The Tribunal also ordered the government to cease applying a narrow definition of an established protocol, commonly referred to as “Jordan's Principle”, whose goal is to ensure that emergency services to Indigenous children are delivered immediately and not stalled by arguments among federal, provincial and territorial agencies over which one is responsible.

In April and September 2016 the Tribunal issued more detailed orders and directed the government to report back to the Tribunal. However, INAC has not acted quickly, and its lack of material progress in reforming the program to comply with the Tribunal's orders is beginning to look like intransigence or incompetence, or both. The issue now before the Tribunal is whether Canada has complied with the orders, and whether new and even more specific orders are warranted.

The FNCF Caring Society claims that Canada has essentially made no changes to provide immediate relief to First Nations children and their families or to meet the Tribuna's orders. Budget 2016, which allocated monies for the First Nations child welfare program over five years, was announced in March 2016, after the Tribunal's first order, but it was formulated in 2015 and based on information and estimates from earlier years. No funds were added to respond specifically to the Tribunal decision.

In addition, the FNCF Caring Society states that Canada's "phased approach" means that full implementation of Budget 2016 investments will not be reached until 2019– 2020, after the next election, even though it has been proven that First Nations child welfare agencies are in urgent need of increased funding now.

Underlying the specific issues of what INAC needs to do, there is a long-standing dispute about the authority of human rights tribunals to issue detailed systemic remedies – remedies that will serve the transformative purposes of human rights legislation.

Government respondents in cases involving public services tend to push back at the remedy stage. They are most comfortable with bare declarations that identify a problem of discrimination that needs fixing. They want the matter of how to fix it left to them.

In cases like this one, however, where there is discrimination that INAC has been aware of for many years, but has taken no effective steps to address, supervisory and detailed remedies are clearly appropriate.

This means that the Tribunal and INAC are engaged in a dialogue on two levels – first, about the particulars of compliance with the Tribuna's orders in this case, and secondly, about whether and how, as institutions, governments and human rights tribunals can interact effectively to ensure that real change happens in complex systems where discrimination is entrenched.

It is important that INAC demonstrates respect for the systemic remedial authority of the Tribunal. This matters directly for the lives of many Indigenous children; it also matters for all future systemic cases.  

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