Alberta Should Follow Saskatchewan And Abolish Rights Tribunals

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.