10.0 DISSATISFACTION WITH THE EXISTING RIGHTS PROTECTION AND PROCESSES
It was suggested in Chapter One that rights consciousness has become an important element in the normative and legal frameworks of most countries throughout the world. This has been reflected in numerous national and international charters and declarations of rights since the end of the Second World War. Rights consciousness has become a dominant theme defining the nature of the relationships between immigrant and ethnocultural minority groups and the dominant society and government.
There are major emphasis on human rights in the results of
the survey of views concerning justice issues of
representatives of ethnocultural organizations in Canada.
Respondents' concerns about human rights were expressed in
terms of two themes -- security of persons and communities,
and access to complaint and redress mechanisms.
10.1 Security of the Person and Community
Representatives of ethnocultural organizations spoke of people not being secure in their rights, and groups being vulnerable to racism, police brutality and exploitation.<251> Respondents expressed their concerns about protection of rights in numerous areas.
Clearly, the Charter of Rights is viewed as a central and
encompassing pillar of the justice system. Respondents
uniformly and strongly expressed the need for public legal
information on Charter rights, the rights guaranteed by
other federal and provincial legislation, and how to
exercise those rights.<252> Public legal information:
organizations and governments at both the federal and
provincial levels should therefore review the adequacy and
effectiveness of public legal education and information in
the field of human rights.
10.2 Complaint and Redress Mechanisms
A second major rights-related issue raised in the Minority
Advocacy Rights Council (MARC) report was the familiar theme
of dissatisfaction with complaint and redress mechanisms to
address alleged violations of rights. This reflects the
fundamental scepticism about the commitment of governments
to protect human rights.<253> It also mirrors the extensive
dissatisfaction with access to human rights complaint
procedures expressed in other reports.<254> The main
complaints about access to the human rights process are
summarized below.
10.2.1 Delays and Backlog
In its 1991 annual report, the Canadian Human Rights
Commission notes that it does not have the resources to
address the 100 percent increase in case load between 1987
and 1991.<255> There are long delays in cases being heard,
and the general perception of long delays discourages people
from using the system.<256> Long delays are detrimental to
the deterrent effect of an order if the order is made
substantially after the incident of discrimination has
occurred.<257>
10.2.2 Success of Cases of "Racial" Discrimination
According to the Mendes report, complaints of discrimination
based on race comprise some 10 to 15 percent of all cases
filed with human rights commissions across Canada.
Complaints of racial discrimination are dismissed with
considerably greater frequency than complaints based on
other grounds.<258> Cote and Lamonde attribute the low rate
of success of cases involving racial discrimination to weak
investigation methods and to the difficulties in gathering
adequate evidence to prove discrimination.<259>
10.2.3 Systemic Racism
A complaint made repeatedly by respondents in the study carried out by MARC concerned a pervasive tendency throughout the justice system to ignore systemic factors resulting in unequal treatment of members of minority groups.<260> According to the study, this is often reflected in the tendency to treat unequals equally, thus failing to provide for the special disadvantages often experienced by minorities and immigrants.
It has been noted above that there has been a major advance
with respect to employment discrimination case law and
employment equity legislation in recognizing the importance
of systemic causes of discrimination. If human rights
commissions do not have adequate resources to deal with
increasing case loads on the basis of an individual-reactive
model, getting increased investigative and research
resources to deal effectively with systemic discrimination
in a proactive manner is even more problematic. Any move to
deal more effectively with systemic discrimination should
not further erode the capacity of human rights commissions
to deal with individual complaints.
10.4 Incompatible Functions
It has also been noted that it is difficult to combine the
investigation and conciliation functions of human rights
commissions. Second, enforcement and education and
enforcement and advocacy have been criticized as being
incompatible. The Mendes report indicates that there are
differences among experts as to the necessity of separating
these functions, and attempts to separate them have met with
limited success.<262>
10.5 Limitations of Mediation and Conciliation
All human rights commissions use dispute resolution techniques in different ways and to various degrees. Although ADR techniques may be appropriate in ethnic communities where there are established norms for resolving disputes in community-based ways,<263> there are still concerns about the promise of ADR to provide less expensive, more timely and, more durable outcomes to dispute resolution<264> to avoid the pitfalls of power imbalances in the settlement process<265> and to avoid disempowering the participants in the process.<266>
Perceived coercion by complainants to accept settlements is
one complaint against the use of ADR in human rights
disputes.<267> The lack of training for human rights staff
in alternative dispute resolution techniques has also been
cited.<268> According to Mendes, the Ontario Human Rights
Commission was urged by the Cornish report to take advantage
of existing community dispute resolution services. However,
as the University of Victoria study shows, the development
of ADR techniques appropriate for ethnocultural communities
is in its infancy, and in the Vancouver area community-based
alternative dispute resolution services are virtually non-
existent.<269> This is an area where more could be done to
develop ADR techniques for use in ethnocultural communities
to deal with disputes involving human rights complaints.
10.6 Prohibition of Recourse to Civil Action
At present, recourse to civil action for discrimination on
the basis of grounds covered by human rights legislation is
unavailable following Bhaduria v. Board of Governors of
Seneca College.<270> The Etherinton report, summarizing the
Ontario Task Force report, suggests that if mechanisms to
truly empower individuals in the complaint process cannot be
developed, legislation to provide access to the courts to
litigate civil rights issues should be enacted.<271>
10.7 Summary
The Mendes report concludes that "the time has come to re- evaluate the effectiveness of a model developed in the 1960s."<272> Ethnic diversity in Canada is changing rapidly and the nature and types of human rights problems are changing as well. Knowledge and experience on the human rights complaints process has grown but the capacity of human rights cornmissions to deal with complaints on a traditional individualistic-reactive basis has been eroded by increasing workloads. As a result, the possibility of developing a more proactive focus on systemic discrimination becomes less likely.
In view of these changes, it is time for a thorough review of the federal human rights process with respect to Canadian multicultural policy and the ethnic diversity of the country. Such a review should involve extensive consultations with ethnocultural groups and human rights organizations in order to more fully understand more recent dimensions of human rights issues and to search for solutions. One recurring principle throughout this report is that the community is its own resource. Being aware of concerns about ADR and its potential for "stifling dissent, muffling legal rights, and ratifying imbalances of power,"<273> the consultation process should explore the potential roles of community-based elements and the development of strong linkages between the human rights system and ethnocultural communities in a revamped human rights system.
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