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About This Book

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Speaking Out on Human Rights is about Canadas human rights system

and its institutions commissions, tribunals, and other parts of Canadas
public human rights infrastructure. There is already a good deal of
debate and scholarship about human rights in Canada, and about human
rights in general, as well as the role of the Canadian Charter of Rights
and Freedoms (the Charter),1 and the courts. There are also many books
about Canadas human rights system, its evolution, and its role, but most
of them are academic or written for human rights practitioners, or, if
written for the general public, are responsible for the pervasive and persistent myths that this book seeks to address. To borrow a phrase from
an early reader, this book aims to engage a general audience in a more
sober consideration of issues that it may only have considered previously
in the overheated rhetoric that has characterized so much of the debate
in recent years. It addresses not only legal aspects of human rights commissions and tribunals but also the broader role these institutions play in
Canada and what has become a very public debate about the legitimacy
of that role.
I have written this book primarily through the lens of law. This is
partly due to my own legal training but mainly because the issues considered here from how the system works to what it does and why it
does so are ultimately understood and resolved in the legal realm. The
Charter, statutory protections, international norms, and case law create
the legal framework in which the system functions.
Admittedly, the legal focus and the goal of appealing to a general readership coexist a bit uneasily. Readers do not need specialized knowledge
or technical familiarity with legal issues or the literature. At the same
time, distinguishing between rhetoric and reality in some of the more

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heated debates often requires a level of detail and analysis that only a
lawyer could truly love. The books format attempts to resolve this tension: legal references are placed in notes, which can be omitted by those
less interested in legal threads of discussion and analysis.2 I do not pretend that the references are comprehensive, although I have attempted to
cover the most important sources of law. I focus on those works and
references that I encountered along the way with the benefit of suggestions from the many interviewees who agreed to lend their expertise to
the task.
The book touches on a wide range of subjects that are relevant to
human rights systems, ranging from administrative law to the Charter,
and from international human rights to the role of the media. It also
considers the social and political choices involved in establishing and
using human rights systems as policy instruments to mediate and manage multiple forms of rights disputes and to promote a culture of human
rights.
Events are captured up to 31 March 2013, although I have added
updates where necessary.3

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Preface

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In the early 1990s, a client in Montreal called me about an incident in a

shopping centre managed by his company. A bystander had complained
about a woman who was breastfeeding and the shopping centres security
guard had asked the woman to cover up or leave. She had left, but the
shopping centre manager was worried about a human rights complaint
and about rumours of a mass feed-in at the shopping centre, organized
by pro-breastfeeding advocacy groups. I phoned Quebecs Human Rights
Commission.1 The staff seemed straightforward and solution-oriented:
they explained the procedures and the next steps needed to deal with the
issue. The matter was resolved with an apology and an agreement that
the shopping centres managers and staff would receive human rights
training.
This incident stayed in my mind over the years. When I was recruited
by the Ontario Human Rights Commission in 1995, I saw it as an opportunity to learn more about human rights commissions from the inside.
At the time, I was the volunteer head of a Montreal-based human rights
N G O and, like many in the human rights community, had mixed views
about human rights commissions. But I thought it was worth a try.
After a raft of interviews, tests, and evaluations, I was invited to a final
meeting. The commissions executive director, Rmy Beauregard, and its
chief commissioner, Rosemary Brown, were both present. To prepare, I
had reviewed the commissions legislation and case law. Many of the legal
issues I read about were standard fare for this kind of administrative
agency but reading the press clippings opened my eyes to the Ontario
Commissions negative public image. When Chief Commissioner Brown
asked me about my impressions, I hesitated and said: I think there is a lot
of work to do. I thought this was a careful understatement, but anyone

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who has been caught in the headlights of Rosemary Browns disapproving

stare will know what I mean when I say that she was not pleased.
Despite this, or maybe because of it, I began working at the commission in August of 1995 as director of policy and education, on the heels
of the June election of a Progressive Conservative Party government
under Mike Harris. From the inside, some of the problems I had read
about became much easier to understand. It was a troubled organization. There were internal factions among the staff, as well as a deepseated resistance to change. Every altercation and difference of opinion
risked escalating into a human rights complaint or grievance. Several
individuals managed to rise above the workplace environment and shine
but, overall, widespread and poor or non-existent performance management made long-festering problems appear intractable. Some staff
members saw their work and the mandate of the entire organization
through the lens of their particular identities or communities.
Still, Rmy Beauregard was an experienced and respected public servant. He had implemented bilingualism at Ontarios Office for
Francophone Affairs and knew something about managing difficult
change. He also knew that he was working in the shadow of others, such
as Raj Anand. Anand had been named chief commissioner in 1987 with
what he referred to as a change mandate from the government to
modernize and improve the commissions effectiveness.2 Early in his
term, Anand had attempted a restructuring that involved both firings
and hirings. There were media leaks about who was being let go and
who was being brought in, as well as accusations of racism and discrimination. These were followed by a protest resignation by a senior official.
There were accusations that Anand, who is of South Asian origin, had
favoured white managers. The government appointed former deputy
minister George Thomson and two senior public servants to conduct a
review of the commissions hiring processes. Their final report revealed
flaws in the hiring process but no evidence of discrimination.3 Anand
decided to resign from the commission in 1989, prompted, as he recalled
in our interview, by the fact that the government had hung him out to
dry.4 Beauregard, contemplating another attempt to professionalize
the Ontario Human Rights Commission five years later, was acutely
aware of the pitfalls of trying to reform an internally volatile and politically vulnerable organization.5
The commissions internal landscape shifted when, in 1996, the Harris
government appointed Keith Norton to replace Rosemary Brown as

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chief commissioner. Nothing in the Harris governments previous partisan appointments suggested that this appointment offered much to hope
for. However Norton, as an experienced lawyer and educator, had a
range of skills that made him a tremendous candidate for the job: human
rights know-how, legal qualifications, management experience, the ability to navigate both the public and private sectors, and a background in
politics. He had chaired the Canadian Human Rights Tribunal since
1992 and believed strongly in both the role and the rule of law. Norton
was also a former member of Bill Daviss Cabinet and had deep roots
inthe Progressive Conservative Party of Ontario. As a gay man, he had
encountered intolerant views in the reform wing of the party and said
that he could not bring himself to run for office with what he called
that lot.6 On an individual and personal level, however, Norton had
good relations with many in the party, including Mike Harris, who gave
a eulogy at Nortons funeral in 2010.
Norton proved to be an extremely successful chief commissioner. He
was professional and personable. As a former Cabinet minister, he was
sensitive to the political side of his work and was careful with the public
purse. He also had uncanny instincts for knowing the right time to push
an issue. Dianna Scarth of the Manitoba Human Rights Commission
laughingly recalled, When Keith Norton sneezed, it made the news.7
Nortons arrival gave new impetus to Beauregards efforts at reform.
Together, they launched a number of successful, albeit predictably tumultuous, changes. Departments were restructured. New strategies were
adopted to improve effectiveness, including an effort to mimic private
sector productivity by introducing the results-based business plans that
were all the rage in the public sector. The commission offered its entire
staff professional development and training. Beauregard insisted that
departments handling complaints, policy, and legal issues work together
to develop more integrated approaches.
In terms of its public work, the commission issued research papers
and more than a dozen policies on a broad range of topics inOntarios
Human Rights Code.8 Its Policy and Guidelines on Disability and the
Duty to Accommodate set demanding standards for reasonable accommodation, using a social model that refocused complaints on what can
be done to remove barriers to participation rather than on the medical
diagnosis of the complainant.9 The publication won Ontarios Amethyst
award for excellence in public policy in 2002 and has since been cited in
the courts.10 Public policy statements on everything from breast-feeding

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to racial profiling and the accessibility of public transit were among the
milestones that characterize the commissions most successful work.11
Its work on aging and discrimination prompted the government of
Ontario to eliminate mandatory retirement. When Keith Norton died in
2010, these accomplishments were what people remembered and what
the media recorded, largely because they had changed many peoples
lives for the better.12
Nevertheless, the Ontario Human Rights Commission never really
gained the trust or confidence of the public. Lawyers and activists wanted
more control over cases and less gatekeeping by commissions. And
despite internal tinkering, some expensive new technology, and a successful early-mediation system, the commission could not allay widespread concerns about bias, backlogs, and bottlenecks. Activists and
lawyers who met with the senior management team during my time
there in the late 1990s dismissed the internal tinkering and initiatives as
distractions from the real issues. By this time, it was clear that Ontarios
Human Rights Commission was embattled. Designed in the 1960s to
provide a regulatory response to overt discrimination in a pre-rights
environment, it was struggling, with limited success, to handle the
demands of a very different social and legal context.
I left the commission in 2001 to work in the federal public service. I
also had the opportunity to participate in international United Nations
(U N ) missions aimed at providing technical assistance to national human
rights institutions (NH R I s) around the world (N H RI is the term used by
the U N to refer to human rights commissions and similar government
institutions).13
Over the next decade, I had the privilege of working with several
countries to build or reinforce N H R I s and other types of national institutions in Ethiopia, Iraq, Rwanda, Sudan, Tajikistan, and Timor Leste.
Over time, several trends and themes became apparent. At first, governments are generally enthusiastic about accepting financial and technical assistance, and about the benefits of being seen to have a N H R I .
The level of initial enthusiasm tends to drop precipitously when it
becomes clear that these institutions appear determined to do something and that that something often involves investigating complaints against the government or calling attention to embarrassing or
unpopular topics.
Governments sometimes respond by looking for ways to curb their
now-inconvenient human rights institutions. While N H R I s are supposed
to operate at arms length from government and political interference,

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there are subtle ways to make human rights institutions and their staff
more pliable and less effective. Institutional performance inevitably
starts to suffer once such strategies begin to take effect. The all-toofamiliar chorus of concerns about delays, bureaucracy, institutional
inertia, and incompetence starts to spread and gain momentum.
Governments sit back and let the institutions take the heat from human
rights groups, stakeholders, the media, and, eventually, the public.
N H R I s find themselves isolated and under threat. They have trouble
attracting the best and the brightest, creating a vicious circle of difficulty in recruiting good people and institutional underperformance.
The result, more often than not, is weakened institutions with little
ability to make a real difference.14
Two examples provide vivid illustrations of this downward spiral. In
Rwanda, respected human rights activist Gasana Ndoba was replaced as
head of the National Human Rights Commission of Rwanda by a partisan appointee. A representative of an international human rights N G O
told me in 2003 that this alone had transformed the countrys commission from a popular (if somewhat disorganized) institution of choice for
people who sought justice into what he called a bureaucratic waste of
space. In Timor Leste, the embattled Office of the Provedoria (Protector)
for Human Rights and Justice was paralyzed after episodes of public
unrest and violence. The government did little to protect the organization or its staff and in 2008, the provedor himself (the equivalent of the
chief commissioner) took to sleeping in his office because it was too
dangerous for him to go home. The organization was hesitant and uncertain about its role and had very little ability to do much more than make
recommendations that were ignored by the government, which had
failed to give the organization any enforcement powers. It was clear that
any decision to move forward on important human rights issues would
further endanger the provedor and the staff.
In 2008 after a series of missions, I was struck by how many of the
issues I had seen abroad were relevant in Canada, albeit in different
ways and with very different consequences. Most commissions and
tribunals in Canada fall short of international human rights legal
standards regarding institutional independence, impartiality, and competence. Commissions lack an adequately broad legal mandate to speak
out on the full range of human rights issues on the promotional (educational) side of their mandates, and what powers they do have, they
rarely use beyond equality rights. Central agencies of government do
not always pay sufficient attention to providing administrative support

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to human rights systems. The curse of patronage appointments, coupled

with insufficiently rigorous legal criteria regarding qualifications for
appointments and dismissals, as well as non-existent criteria for the
renewal of terms of appointment, plague most human rights institutions
in Canada.
As well, Canadian human rights laws lack uniformity in terms of the
rights they protect and how they are protected. Access to human rights
decision-makers like tribunals varies wildly from jurisdiction to jurisdiction, with Ontario providing easy access, while in Quebec, such access is
severely restricted. Delays and backlogs have always been a real problem
everywhere. Meanwhile, the number of human rights grounds has grown
so that there has been an increase in the time, cost, and complexity of
human rights litigation. While commissions and tribunals have worked
hard to keep up with rapidly changing demands in the context of new
social and legal realities, the publics understanding of what these institutions do, what they were set up to do, and what they are capable of
doing remains mired in another era or severely tarnished by criticism.
I was also struck by the extent to which human rights systems had
become lightning rods for high expectations and strongly voiced frustrations. Many people who took the heady promises of the Charter and
the International Bill of Rights15 to heart have not been satisfied with
the way human rights systems work. Commissions themselves are partly
responsible for this state of affairs, but legislatures are also at fault as
they establish human rights systems and control the breadth of their
mandates and their legal guarantees of independence. Legislatures
determine how and to which authority human rights systems are
accountable, as well as the legal criteria for official appointments,
renewals, and dismissals. The executive branch also bears some responsibility, because it controls many of the operational levers of financing
and administration. All of this exposes human rights systems to uncertainty and capricious decisions.
While it is important to keep asking whether human rights commissions and other parts of the system can do a better job, and to be unflinching in this assessment, it seems to me that the negative rhetoric about
human rights systems in Canada is misplaced and worrisome. It focuses
on discussions of elements of the human rights system that are deeply
(and sometimes deliberately) misunderstood. Such discussions have distracted policy makers from considering areas where human rights systems do need to evolve and improve. Irwin Cotler, former minister of

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Justice, said that: We need more basic information about the role of
human rights commissions; we need a better understanding of their origins and development, of why and how they developed here in Canada,
and how they operate, and data about complaints. We need a comprehensive appreciation of what the facts are and what the legal framework
is, and we dont have this.16
Starting in 2008, I began speaking with academics and practitioners to
gain a broader perspective on what was happening in these areas and
what it meant. A few informal conversations expanded to almost sixty
interviews over four years, mostly through word of mouth and introductions to people who had an expertise in human rights systems. All the
interviews were with people who have been at the forefront of the human
rights movement leaders in human rights commissions or tribunals,
leaders in civil society, and senior members of the Bar. The majority have
years and even decades of experience working directly in or with human
rights commissions and tribunals. Each interviewee contributed a wealth
of knowledge and a unique perspective on human rights systems in
Canada and the law and politics of human rights. It was clear throughout the interview process that not everyone agreed about human rights
systems, their accomplishments, or even whether they should exist in
their current forms. Nonetheless, each interviewee was committed to a
constructive and progressive vision of human rights, consistent with our
constitution and our international human rights obligations. Byron
Williams, a respected human rights advocate, set the tone for this perspective on human rights systems. Williams heads the Public Interest
Law Centre, a public interest litigation group in Manitoba. He cited his
organizations recent positive experiences with the Manitoba Human
Rights Commission and noted evidence of positive change and alternatives to the current climate of distrust of human rights commissions:
Instead of defending commissions as they are, we need to defend
the importance of commissions in our society and think about their
evolution.17
That strikes me as exactly right.
Canadas human rights system is a legitimate and important interlocutor in the evolving debate and discourse about what human rights are
and who should protect and promote them. If Rosemary Brown were
here today to ask me again about my thoughts on human rights commissions in Canada, I would still say that there is a lot of work to do to
build a better, more coherent, and more effective generation of human

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rights protections in Canada. There is also work to do to provide a

vantage point from which we can assess the systems effectiveness. We
need to be mindful of both the accomplishments and mistakes of the
past to develop a keener, more informed appreciation for what should
come next.

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