By Alex Neve And Ailsa Watkinson
March 18, 2011
Also on NYC: Socialist Jews, and the 1947 Saskatchewan Bill of Rights
Today, Saskatchewan is poised to again lead the country when it comes to human rights. But this time it sadly is not about leadership. Quite the contrary, this time it would be a troubling step backward. Bill 160, the government's proposed changes to provincial human rights legislation, needs urgently to be withdrawn.
What is most worrying about Bill 160 is the intention to abolish the Saskatchewan Human Rights Tribunal. The tribunal is currently responsible for holding hearings of human rights complaints that cannot be resolved by the Saskatchewan Human Rights Commission. Every other jurisdiction in Canada uses that same model.
But under Bill 160, the tribunal would close its doors. Human rights complaints would instead be heard by the Court of Queen's Bench. The government says this will improve efficiency and give complainants a higher standard of justice. Think again.
Tribunals were set up to hear human rights complaints -in Saskatchewan and across the country -for two key reasons: expertise and accessibility. Both are vital when something as fundamental and vulnerable as human rights is on the line.
A tribunal with a mandate focused on human rights can develop expertise in ways that even the most talented provincial court judge, whose docket spans a dizzying array of issues, can simply never achieve. Specialization helps strengthen human rights protection.
A tribunal is also a much more relaxed and less expensive setting than the formality and complexity of a courtroom. Rules of evidence are not as stringent. Claimants are not faced with the intimidation that comes with such trappings as lawyers and judges wearing robes. Given that human rights complainants very often come from marginalized, low-income communities, this informality goes far in boosting both comfort and confidence.
There is wide agreement that the human rights tribunal has faced challenges. Notoriously underfunded for many years and lacking basic institutional support, it is perhaps not a surprise that the average time for processing a case has climbed to a reported 21 months.
What is perplexing is to leap from recognizing the tribunals need repair to Bill 160's extreme proposal: get rid of them. There are many other possibilities, including increased funding, different approaches to appointing tribunal members, new rules of procedure and providing the tribunal with badly-needed infrastructure. There is no indication those options have been explored. If they have, there is no explanation why they were rejected. In the absence of that basic information one is left with the worrying prospect that this may be less about the professed concerns about efficiency and more about animus towards the tribunals.
That disquiet grows when one considers other proposed changes. The limitation period for making claims is to be cut from two years to one. There are multiple reasons why individuals may be slow to launch a human rights complaint.
They may be uninformed, nervous or fearful. The existing two-year period is sensitive to that reality. To back up the proposed change, therefore, one might expect compelling evidence that the bulk of complaints made during that second year are groundless. None is on offer.
Also preoccupying are two new grounds for rejecting human rights complaints before they even reach the stage of a hearing. One is the open-ended possibility that "having regard to all of the circumstances" the commissioner concludes a hearing is "not warranted." Surely something as serious as dismissing someone's human rights complaint deserves less arbitrary criteria.
The other is that if, during mediation, a complainant turns down a settlement offer that the commissioner considers "fair and reasonable" that is the end of the road. The complaint will be dismissed. It's a decidedly coercive approach to mediation. Of course it is beneficial to persuade complainants to accept reasonable settlement offers. But the bottom line is that the human rights at stake belong to the individual who made the complaint, not to the commission. If he or she makes an informed decision not to opt for a full hearing instead of settlement -that choice should be respected. That is what human rights are all about.
Alongside Bill 160, the Saskatchewan Human Rights Commission has announced a set of new priorities described as Four Pillars. These largely admirable changes do not involve legislative changes and should go ahead. But Bill 160 itself is seriously flawed and needs to be withdrawn.
Systems for protecting human rights should constantly be improved. But that should come through open-ended consultations that reflect the views and needs of the general public. Bill 160 did not emerge from that sort of process.
The changes were developed first and then taken to the people. That's the wrong order. When it comes to human rights; people must come first.
- Neve is the secretary general of Amnesty International Canada; Watkinson is a professor with the Faculty of Social Work at the University of Regina's Saskatoon Campus.