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Speaking Out on Human Rights: Debating Canada's Human Rights System

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Opening pages of Speaking Out on Human Rights , a critical analysis of the rhetoric and reality surrounding human rights commissions and tribunals, Canada's most contested administrative agencies. Canadians like to see themselves as champions of human rights in the international community. Closer to home, however, the human rights system in Canada - particularly its public institutions such as commissions and tribunals - has been the object of sustained debate and vehement criticism, based largely on widespread myths about how it works. In Speaking Out on Human Rights, Pearl Eliadis explodes these myths, analysing the pervasive distortions and errors on which they depend. Canada's human rights system, a unique legal tradition operating within a powerful modern constitution, is a fundamental mechanism for ensuring the practical application of our national commitment to tolerance and inclusion. Drawing on in-depth interviews with Canada's leading human rights experts and extensive original research, Eliadis explores the evolution of commissions and tribunals as vehicles of public policy and considers their mandate to mediate rights conflicts in such contested areas as hate speech, religious freedoms, and sexuality. She provides a frank assessment of how Canada's human rights system functions and argues that misplaced critiques have prevented urgent and necessary discussions about the reforms that are needed to improve fairness and equality before the law and to ensure institutional independence, impartiality, and competence. Speaking Out on Human Rights shows how our human rights system plays a unique and important role in the rights revolution both in Canada and internationally and offers promising avenues for its future development.
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  Speaking Out on Human Rights is about Canada’s human rights system and its institutions – commissions, tribunals, and other parts of Canada’s 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), 󰀱  and the courts. There are also many books about Canada’s 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 per-sistent 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 com-missions 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 con-sidered 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 read-ership 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 About This Book 25924_Eliadis.indb 132014-03-20 15:00:28  xiv About This Book heated debates often requires a level of detail and analysis that only a lawyer could truly love. The book’s format attempts to resolve this ten-sion: legal references are placed in notes, which can be omitted by those less interested in legal threads of discussion and analysis. 󰀲  I do not pre-tend 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 sugges-tions 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 man-age multiple forms of rights disputes and to promote a culture of human rights.Events are captured up to 󰀳󰀱 March 󰀲󰀰󰀱󰀳, although I have added updates where necessary. 󰀳   25924_Eliadis.indb 142014-03-20 15:00:28  In the early 󰀱󰀹󰀹󰀰s, 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 centre’s 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 Quebec’s Human Rights Commission. 󰀱  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 centre’s 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 󰀱󰀹󰀹󰀵, I saw it as an oppor-tunity to learn more about human rights commissions from the inside. At the time, I was the volunteer head of a Montreal-based human rights 󰁎󰁇󰁏 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 commission’s executive director, Rémy Beauregard, and its chief commissioner, Rosemary Brown, were both present. To prepare, I had reviewed the commission’s 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 Commission’s 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 Preface 25924_Eliadis.indb 152014-03-20 15:00:28  xvi Preface who has been caught in the headlights of Rosemary Brown’s 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 commis-sion in August of 󰀱󰀹󰀹󰀵 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 organiza-tion. There were internal factions among the staff, as well as a deep-seated 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 man-agement 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, Rémy Beauregard was an experienced and respected public ser-vant. He had implemented bilingualism at Ontario’s 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 󰀱󰀹󰀸󰀷 with what he referred to as a “change mandate” from the government to modernize and improve the commission’s effectiveness. 󰀲  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 discrimi-nation. These were followed by a protest resignation by a senior official. There were accusations that Anand, who is of South Asian srcin, had favoured white managers. The government appointed former deputy minister George Thomson and two senior public servants to conduct a review of the commission’s hiring processes. Their final report revealed flaws in the hiring process but no evidence of discrimination. 󰀳  Anand decided to resign from the commission in 󰀱󰀹󰀸󰀹, prompted, as he recalled in our interview, by the fact that the government had “hung him out to dry.” 󰀴  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 politi-cally vulnerable organization. 󰀵  The commission’s internal landscape shifted when, in 󰀱󰀹󰀹󰀶, the Harris government appointed Keith Norton to replace Rosemary Brown as 25924_Eliadis.indb 162014-03-20 15:00:28
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