April 2010
In a bold move, the Saskatchewan government is considering doing away with that
province’s human rights tribunals and sending all unresolved human rights
disputes directly to court. This is where they rightly belong. The move would
speed up the complaint process and increase the perception of fairness,
according to Don Morgan, the province’s justice minister. The recommendation to
streamline the process came from none other than Saskatchewan’s chief human
rights commissioner, Judge David Arnot.
Alberta’s government should follow suit. We have long argued that human rights
tribunals lack due process. Unlike a proper trial, for instance, quasi-judicial
human rights tribunals are not obliged to follow normal rules of evidence. For
proof of how flawed the tribunal process can be, one need only read the Dec. 3,
2009, decision by Alberta Court of Queen’s Bench Justice Earl Wilson that
overturned an Alberta human rights tribunal finding against Red Deer youth
pastor Stephen Boissoin.
Boissoin made disparaging remarks about homo-sexuals in a letter to the Red Deer
Advocate eight years ago when same-sex marriage was a hot-button issue. Calgary
professor Darren Lund filed a human rights complaint against Boissoin, who was
found guilty by an Alberta human rights tribunal and fined. Justice Wilson ruled
that the tribunal overstepped its constitutional bounds and took significant
procedural liberties that would have never been permitted in a real court.
Human rights tribunals work independently of human rights commissions, which do
valuable work ensuring that people are protected against discrimination where
they are employed, or when they are refused access to accommodation or
government services. Commissions resolve the majority of such disputes and only
send cases to tribunals when they cannot be mediated.
In 2008-09, the Alberta Human Rights Commission closed 668 files, most dealing
with physical disability and gender issues. The vast majority — 646 files, or
97 per cent — were dealt with through the commission’s complaint resolution
processes. The remaining 22 cases, or three per cent, went to a tribunal
hearing, only 16 of which proceeded.
It would be much more efficient, and fair, if these small number of cases were
referred directly to court. Complainants would not be deterred from seeking
redress because the government could still fund the complainant’s lawyer, as
Saskatchewan’s justice minister has suggested.
Reforms are also being called for at the federal level. Conservative Senator
Doug Finley recently led a call to scrap a problematic section of Canada’s Human
Rights Act that he and other senators say is being used to stifle free speech in
Canada. "Despite our 400-year tradition of free speech, the tyrannical instinct
to censor still exists," Finley said. This paper has called for a similar
section to be struck from Alberta’s human rights legislation.
Alberta’s human rights commission is involved in valuable initiatives such as
the Alberta Hate Crime Committee, and the Calgary Urban Aboriginal Initiative.
Its resolution process seems to be working well and its work should continue.
But for those cases that cannot be settled by the commission, they belong in a
proper court of law, rather than before a tribunal of mostly laypersons whose
decisions often end up in court anyway, on appeal.
Calgary Herald, April 21, 2010.
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