View Point

Commentary on new developments in human rights law published in the Human Rights Digest newsletter.

The current anti-human rights mantra makes two claims: (1) freedom of expression is the most fundamental right and should trump the right to freedom from discrimination; and (2) human rights commissions and tribunals are biased, junior, incompetent agencies ‑ only courts should have the task of addressing and adjudicating human rights issues. Unfortunately, these flawed arguments have leverage with some governments. They need to be countered repeatedly, and with many voices.

The freedom of expression claim got a bucket of cold water recently from the Federal Court of Appeal. In what may be the last word on the now repealed hate speech provision of the Canadian Human Rights Act, the Court of Appeal ruled that s. 13 was constitutional and not an infringement on the Charter right to freedom of expression.

This ruling, full of irony as it is, comes about because complaints filed before the repeal are still making their way through the courts. In 2009, in Warman v. Lemire (No. 18) (68 C.H.R.R. D/205), the Canadian Human Rights Tribunal ruled that s. 13 was unconstitutional because a penalty provision added in 1998 permitted a fine of $10,000 to be levied against a respondent. According to the Tribunal, this changed the character of s.13 from a remedial provision to a punitive one, rendering the section unconstitutional because it was no longer a minimal impairment of the right to freedom of expression.

The Federal Court reviewing the Tribunal decision, decided in 2012 (76 C.H.R.R. D/308) that the Tribunal had erred by finding s. 13 unconstitutional, because the penalty provisions could be severed, and the remedial character of the section could be saved.

Just a few weeks ago, the Federal Court of Appeal rejected (see CHRR Doc. 14-3006 at p. 11 of this issue) both the Tribunal and the lower court decision. Following the Supreme Court of Canada's decision in Saskatchewan (Human Rights Comm.) v. Whatcott (76 C.H.R.R. D/1), the Court of Appeal found that hate speech is an extreme form of expression that fosters a climate in which unlawful discrimination can flourish. The penalty provisions fit the remedial objectives of the Canadian Human Rights Act, the Court found, because they were designed to induce compliance with the law and deter future breaches. The penalty provisions were introduced to “plug a gap”, because otherwise the Act only permitted compensatory awards to individuals. Without the penalty provisions, violations of s. 13 would carry no financial liability because hate speech typically targets vulnerable groups as a whole, rather than individual members. The penalty provisions were particularly important, the Federal Court of Appeal ruled, for deterring those who repeatedly engaged in hate speech, as s. 13 respondents too often do.

Brian Storseth, whose private member's bill, with the support of the Harper Conservatives, resulted in the repeal of s. 13, claimed that freedom of expression is our most fundamental right, and that s. 13 violated that right. Even with the penalty provisions, this is not so, says the Federal Court of Appeal.

Although we will not get s. 13 back any time soon, it will be important to remember that, according to our courts, there was nothing wrong with it. Mr. Storseth's claims were false.

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The Canadian Human Rights Tribunal has taken a step forward. Diverging from its decisions in Matson v. Canada (Indian Affairs and Northern Development) (No. 4) (CHRR Doc. 13-0362) and Andrews v. Canada (Indian Affairs and Northern Development) (No. 2) (CHRR Doc. 13-3127) it decided in Beattie v. Canada (Aboriginal Affairs and Northern Development) (CHRR Doc. 14-3001) that the Canadian Human Rights Act (“CHRA”) can be applied to the status registration provisions of the Indian Act. This case deals with custom adoption.

The criteria for status eligibility are set out in the Indian Act. However, entitlement to registration is not automatic, but is determined by the Registrar. The criteria are based on lineage, but it has also long been recognized that status may be transmitted through legal adoption.

The Canadian Human Rights Tribunal's task in Beattie was to decide whether the Registrar had discriminated on the basis of family status in its determination of the eligibility for status of Joyce Beattie, and her children and grandchildren. Did the Registrar discriminate by failing to recognize that Ms. Beattie had been adopted, by custom, by status Indian parents?  Ms. Beattie claimed that her entitlement to registration flowed from her custom adoptive parents.

Ms. Beattie was custom adopted four days after her birth by Norbert Otto Natsie and Bernadette Natsie; her natural mother could not care for her because of illness. Ms. Beattie's custom adoption was officially recognized by the Supreme Court of the Northwest Territories. If her eligibility for status was based on her natural parents' lineage, she could not transmit status to her grandchildren. But, if her eligibility was based on her custom adoptive parents' lineage, she could.  

The Tribunal ruled that the Registrar discriminated against Ms. Beattie based on family status when it refused to determine her eligibility based on that of her custom adoptive parents. The Tribunal held that an Aboriginal certified custom adoptee is entitled to the same treatment under the law as a legal adoptee.  This is an important decision, as it will affect the ability of other Aboriginal parents to transmit status to a child they have adopted by custom.

But there is another aspect of this decision that is noteworthy. The Tribunal reversed itself, to decide that determining eligibility for Indian status is a public service, despite its earlier rulings to the contrary. As recently as September 2013 in Andrews, the Tribunal agreed with the Government of Canada that decisions made pursuant to the Indian Act regarding eligibility for Indian status could not be reviewed for compatibility with the CHRA because there is no “public service” involved. The Tribunal in Andrews found that the challenge was to the Indian Act itself and that Parliamentary law-making is not a service within the meaning of the CHRA.

But if determining eligibility is indeed a service, as the Tribunal held in Beattie, the difference between Beattie and Andrews is a fine one. In both cases, the Registrar was asked to apply the CHRA in order to avoid discrimination that would otherwise be caused by the Indian Act. The only difference is that in Beattie the term “child” could be given a compatible interpretation, whereas in Andrews, the Registrar was asked to render a discriminatory provision inoperable.

Since the Tribunal now says that there is a service, and since human rights legislation has primacy over other inconsistent laws, the CHRA should take precedence over the status registration provisions of the Indian Act, which continue to discriminate. 

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Just what did repealing s. 67 of the Canadian Human Rights Act mean?

From the time the Canadian Human Rights Act was introduced in 1977 until 2008 when s. 67 was finally repealed, this section barred Aboriginal people from making complaints of discrimination about decisions made by the federal government or Band Councils under the Indian Act. Section 67 said: "Nothing in this Act affects any provision of the Indian Act or any provision made under or pursuant to that Act".

In its backgrounder on the repeal of s. 67, the Government of Canada explains that s. 67 was adopted as a temporary measure because, without it, certain provisions of the Indian Act could have been found discriminatory, and discussions about reform of the Indian Act were underway at the time. (http://www.aadnc-aandc.gc.ca/aiarch/mr/nr/s-d2006/02831bk-eng.asp)

While the backgrounder does not comment on why it took so long to repeal this temporary measure, it does go on to say: “For the first time in thirty years, individuals will be able to file a complaint of discrimination under the Canadian Human Rights Act for actions taken or decisions made pursuant to the Indian Act.” (emphasis added).

Is it not contradictory then that the Government of Canada's lawyers appear to be on a concerted campaign to ensure that Aboriginal people cannot use the Canadian Human Rights Act to challenge decisions made pursuant to the Indian Act.

In a recent Tribunal decision, Andrews v. Canada (Indian and Northern Affairs) (CHRR Doc. 13-3127), the Government was once more successful in arguing that, despite the repeal of s. 67, decisions made pursuant to the Indian Act regarding eligibility for Indian status cannot be dealt with under the Canadian Human Rights Act because there is no ‘public service’ involved. The Government's lawyers say that the challenge is to the Indian Act itself, and such a challenge can only be made under the Canadian Charter of Rights and Freedoms. Parliamentary law-making, they argue, is not a service within the meaning of the Canadian Human Rights Act.

There are a number of ironies here. First, it is formalistic to reduce the service in issue to Parliamentary law-making. Conferring registered Indian status — and the benefits associated with it — fall within the common sense understanding of what constitutes a ‘service’. In many decisions under human rights legislation, tribunals and courts have found that if the effect of applying a law is the discriminatory denial of a benefit, there is discrimination in a service. Tranchemontagne v. Ontario (Dir., Disability Support Program) (56 C.H.R.R. D/1), a decision of the Ontario Court of Appeal, is an excellent example.

Secondly, if the Government thinks that Aboriginal people should use the Charter to bring challenges to the discrimination in the registration provisions of the Indian Act, why did it cancel the Court Challenges Programme, which provided the only practical access to the use of constitutional rights for anyone except the wealthiest Canadians? Why did it instead repeal s. 67 of the Canadian Human Rights Act and hold out the statutory human rights forum as providing easier access to justice for Aboriginal people who need to bring forward just such issues?

The Canadian Human Rights Tribunal's decision that Mr. Andrews cannot challenge denial of a benefit because the denial is grounded in provisions of the law relies on the 2012 federal court decision in P.S.A.C. v. Canada (Revenue Agency) ("Murphy") (CHRR Doc. 12-3139). But Murphy, and now Andrews, stand in contradiction to a long line of jurisprudence that has considered the quasi-constitutional nature of human rights legislation and its primacy over other laws, and found that provisions in other laws must give way when they cause discrimination.

The Government of Canada's lawyers argue that they do not have the same panoply of defences available that they would have under the Charter. Under the Canadian Human Rights Act they can only defend a discriminatory provision by claiming that it would cause undue hardship to change it, because of the health, safety or cost implications. Interestingly, when the Government of Canada drafted the legislation repealing s. 67, it did not take the opportunity to insert special defences for discriminatory provisions in the Indian Act.

But now, quietly and after the fact, the Government of Canada's lawyers are working at carving out an exception to Canada's important jurisprudence on the primacy of human rights legislation on the new terrain that is exposed by the repeal of s. 67.

Sadly, this now looks more like politics than legal reasoning. The Government of Canada is working to shrink the rights of Aboriginal people after it has so publicly congratulated itself for finally permitting them to use them. The Canadian Human Rights Tribunal should not be allowing them to do it.

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There is an important public debate going on, not just in Quebec, about secularism and the accommodation of religion. Not surprisingly, there can be radically different claims about what the right to be free from discrimination based on religion means and how that right should be implemented.

Recently, interesting decisions have recently turned up in human rights jurisprudence, emanating from complaints filed by non-believers or atheists. The decisions lead in quite different directions, demonstrating the difficulties that public bodies (and adjudicators) have with defining what constitutes “neutrality”, or secularism, or freedom from religious discrimination.

In one case, the Quebec Court of Appeal (CHRR Doc. 13-3065) overturned a decision of the Quebec Human Rights Tribunal (CHRR Doc. 11-3009) in a complaint filed by Alain Simoneau and the Mouvement laïque québecois against the City of Saguenay. Mr. Simoneau alleged that the recitation of a prayer before town council meetings, and the presence of religious symbols, a crucifix and a Sacred Heart statue in the Council chambers, violated his right to freedom from discrimination based on religion. The Quebec Tribunal agreed with Mr. Simoneau; the Court of Appeal did not.

The Court said that when implementing the principle of neutrality with respect to religion the State must strike a balance between the preservation of cultural heritage and the human rights of individuals. The Court found that there is no fundamental right to “full secularism” and that the values expressed by prayer are universal and do not relate to any religion in particular. The majority also found that the religious symbols, crucifix and Sacred Heart statue are part of a cultural and historical heritage. The Court concluded that if there was any violation of Mr. Simoneau's rights, it was trivial.

In Ontario a parent who is an atheist challenged a school board's policy which permitted Gideon International to distribute the New Testament to Grade 5 students, including his daughter, with parental consent. The Tribunal had to decide whether, as atheists, R.C. and his daughter were protected by the Human Rights Code, and it ruled that atheism or non-belief is protected by the prohibition against discrimination on the basis of “creed”.

When the Board changed the policy so that it would permit religious materials to be distributed by other groups, but not a pamphlet on atheism, the Tribunal ruled (CHRR Doc. 13-1882) that the policy still discriminated. The Tribunal ordered the School Board to develop a new policy that would ensure equal treatment of all religions and creeds.

The response to non-believers or atheists in these cases is, on the one hand, that religious symbols and practices are culture or history and therefore no right is offended; or, on the other hand, that pluralism is the answer, with the opportunity for atheists to join in the religious diversity.

It is not surprising that the Quebec complainants have sought leave to appeal to the Supreme Court of Canada. The Court of Appeal decision is simply unpersuasive.

But is the Ontario invitation to atheists to “join the pluralism” the right answer? The Ontario Tribunal ruled that equal treatment without discrimination does not require that all activities relating to creed be banished from the public schools. Practically speaking, however, it is likely that dominant religions, represented by organizations like Gideon International, will have the organizational capacity to take up the opportunity to distribute religious literature in the schools, while atheists probably will not. If we are serious about equal treatment for non-believers that might be more effectively achieved in the public school setting by simply barring the distribution of religious materials by any outside organizations.

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Guest column by Lucie LaMarche, Gordon F. Henderson Chair at the University of Ottawa

Tuesday, September 10, 2013, the Government of Québec finally released its strategy aimed at protecting the values of the nation (http://www.nosvaleurs.gouv.qc.ca/en). It is important to say that this document is neither a bill nor a policy paper, yet. A strategy, in the new brave world of political communication, is a prompt aimed at assessing voters' reaction and opinion, the strategy affirms that three values distinguish and define Québec: gender equality, French as a common language and the neutrality of the state.

It is in the name of such values that the strategy proposes a total prohibition for any civil servant (from judge to janitor) to wear any ostentatious sign of religious belief on the worksite. The website even provides slides that offer examples of what is ostentatious, and, of course, this includes the Islamic scarf (hijab). Why? Because it is implied that such wearing carries a risk of proselytism which would contradict the principle of the neutrality of the State and, as well, the duty of all civil servants to refrain from expressing opinions in the course of their duties. Symbols speak loud, say some. It is also implied that religious rigout, such as hijab, necessarily perpetuates women's oppression. Forget about personal or political choices.

There are a lot of civil servants in Québec, especially female workers: school boards, daycare, health care and universities, just to name a few. And as Québec privileges educated immigration quicker than it acknowledges the value of a foreign diploma, a lot of overqualified and underpaid immigrant jobs for women would be put at risk by such prohibition.  In other words, we are being asked to believe that a secular and neutral state can by itself protect and promote, gender equality.

Such potential outcome carries a specific human rights history in the Canadian and Québec context. The rest of Canada is the land of multiculturalism. And for understandable reasons, Québec, a distinct society that is well aware of the challenges to protect its culture and its development in North America and in a globalised world, denies the relevancy of such an approach. It prefers the concept of interculturalism as promoted by the Bouchard-Taylor Commission (2008). Interculturalism searches for the fine balance between nation building and liberal individual and cultural rights of all communities, including the immigrant communities.

In fact, the saga of the values started some years ago with some Supreme Court decisions (in the Multani case (2006 SCC 6, 55 C.H.R.R. D/463), as an example) that concluded in matters related to the freedom of religion. The Court then stated (and did not change its mind since then but for a nuance in the Hutterite decision (2009 SCC 37)), that employers and public entities have a duty to accommodate those who make their beliefs visible in the public space, as long as the accommodation is not overburdening the administration concerned, be it public or private. Some of the cases came from Québec, and it is fair to say that a portion of the population felt threatened by the consequences of those decisions: where would it stop? What are the limits of such accommodations? And instead on focusing on accommodation as a remedy to discrimination, the political nationalist elite of Québec, as well as some feminist quarters, were quick to conclude «à la française» that such a state of business was clearly conflicting with the values of Québec and with those of a secular-neutral state.

Nobody in Québec, is against the basic values of the nation: French as a common language, a neutral and secular state and gender equality.

But a lot of people, especially Montrealers and human rights activists, including some feminists, do not wish to promote a hierarchy of human rights that would in a Charter put gender equality above other rights and women's rights, including their right to work and other social rights. Values are not magical! And if anything, they are black magic when used in the framework of a political agenda.  Such calculation, as many of us believe, include the factoring in of the political impact of a predictable judicial debate where Québec would lose against the Canadian Charter of Rights of Rights and Freedoms. Let's just say that the Supreme Court decisions are not popular in Québec when they interpret the meaning of a distinct society.  The confusion between values and human rights as nurtured by the strategy would make it worse.

Québec is anything but a conservative society. And we deplore the fact that the rest of Canada cannot resist another round of "Québec bashing". But we are used to it. What seems to us more dramatic is not only the potential for human rights violations carried by the strategy, but also, the risk of an unnecessary political division inside Québec.  This would not serve the immigrants nor any modern nation.

Reprinted by permission from Oxford Human Rights Hub, 17 September 2013, http://www.law.ox.ac.uk/themes/humanrightshub/

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The Federal Court ruled in Canada (Attorney General) v. Cruden (CHRR Doc. 13-3067) that there is no procedural component to the duty to accommodate that can be breached independently (see summary on p. 6 of this issue).

Having decided that the Canadian International Development Agency (“CIDA”) could not accommodate Bronwyn Cruden in a posting to Afghanistan without undue hardship, the Court says that the Tribunal should have dismissed the complaint. Ms. Cruden has Type 1 diabetes mellitus and CIDA could not ensure that, in a war zone, Ms. Cruden would have access to medication, testing equipment and backup supplies at all times, and extra food and medication for travel. These were among the conditions she needed to be safe.

Despite finding that CIDA could not accommodate her in Afghanistan, the Tribunal went on to find that CIDA had breached its procedural duty to explore all reasonable accommodation measures for Ms. Cruden. There was delay and confusion in its response to her inquiries, and CIDA applied guidelines for posting to Afghanistan which did not permit individual assessment.

The Federal Court's ruling follows the 2011 B.C. Supreme Court ruling in Emergency and Health Services Comm. v. Cassidy (72 C.H.R.R. D/433).  At the first Tribunal hearing on the merits, the Tribunal (62 C.H.R.R. D/459) agreed that the B.C. Ambulance Service could not accommodate a paramedic who had lost sensitivity in his fingers due to multiple sclerosis and was unable to take a pulse manually. But the B.C. Human Rights Tribunal, like the Canadian Human Rights Tribunal in Cruden, found that the duty to accommodate was nonetheless breached for procedural reasons. Mr. Cassidy was treated badly, and lost work because of the employer's unwillingness to seek a solution. When the B.C. Supreme Court said that there could not be a procedural breach of the duty to accommodate alone, the Tribunal reconsidered (CHRR Doc. 13-0116) and found that there was, in fact, a substantive breach of the duty to accommodate because the Ambulance Service could have accommodated Mr. Cassidy in the position of Special Driver at an earlier point.

The ruling that there is no procedural component of the duty to accommodate that can be breached separately seems reasonable at first glance. If an employer cannot accommodate because it would be an undue hardship, is that not the end of the matter? This does not mean that procedure will not be examined carefully. As the Federal Court pointed out, if an employer has not determined needs, explored possibilities, or attempted to accommodate, it is likely to be difficult to demonstrate that accommodation is not possible without undue hardship.

Nonetheless, we should still consider whether the decisions of the courts mean that we will now ignore the discrimination that complainants can experience when, or because, they seek accommodation for their disabilities. In Mr. Cassidy's case, for example, his District Superintendent treated him with animosity and delayed the effective resolution of the problem. Misinformation was allowed to circulate about him. The Ambulance Service took active steps to have his driver's licence and his paramedic licence revoked, even though there was no medical evidence to justify doing so. The Tribunal found that this treatment harmed Mr. Cassidy and affected his dignity as a person with a disability seeking accommodation.

So there may be a danger that the refusal by the courts to recognize a separate procedural component of the duty to accommodate will lead to overlooking or failing to recognize the disability discrimination that can occur when an accommodation request is made. Discrimination can occur in the process of seeking and finding accommodation, and this discrimination should not be beyond remedy.

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The federal government is up to an old trick: giving with one hand and taking with the other. With one hand the government repealed s. 67 of the Canadian Human Rights Act, finally allowing Aboriginal people to make complaints about discrimination that flows from the Indian Act.  With the other hand, the federal government, in its role as litigator, is taking back the protection of human rights legislation by arguing that it does not apply. A recent example is the case of Matson v. Canada (Indian and Northern Affairs) (CHRR Doc. 13-3062).

There is a long and shameful history of legislated discrimination against Aboriginal women and their descendants under the provisions of the Indian Act which determine eligibility for status. The Matson case arises because this discrimination has still not been eliminated, and the Matson complainants were originally denied status because they trace their Aboriginal ancestry from an Aboriginal grandmother, not an Aboriginal grandfather.

Far from supporting the use of the Canadian Human Rights Act to bring an end to continuing discrimination, the federal government argued successfully in Matson that a complaint of discrimination about the criteria for eligibility for Indian status does not fall within the scope of the Canadian Human Rights Act. The Tribunal found that status is not a service within the meaning of the Act. However, this central reasoning is faulty, and will not hold.

The notion that the conferral of status is not a service strains credulity. There is no difference between a "service" and a "benefit". The conferral of Indian status through registration under the Indian Act is no less a service than the provision of disability benefits under social assistance legislation, as in Tranchemontagne (56 C.H.R.R. D/1), or the provision of drivers' licences, as in Grismer (36 C.H.R.R. D/129). It has long been recognized that constraints on access to legislated benefits, which result in an individual or group being denied them because of a protected ground, breach human rights legislation.

Status, a statutory concept, connotes and confers official recognition of a person's Aboriginal heritage.  The benefits of status are tangible and intangible.  The intangible benefits relate to a sense of cultural identity, and include the ability to transmit status to future generations. The tangible benefits include such things as access to extended medical care and funding for post-secondary education.  Status is not automatic. People have to apply for it, and establish their lineage.

The government's policy argument against the application of the Canadian Human Rights Act to Indian Act discrimination is that the government should be allowed to make justificatory arguments without having to show reasonable accommodation, and without being restricted to health, safety and cost as the factors to be taken into account when determining whether there is undue hardship. That is not persuasive.  Although individualized accommodation may not be an appropriate approach to legislated benefit schemes such as this, government should be put to the test of showing that it could not have adopted a more inclusive standard. That is equivalent to the minimal impairment stage of s. 1 Charter justification. And, though the government says it is loathe to advance a financial hardship argument, cost is a capacious enough category to give the government room to attempt its defence. This is not a case of competing interests. Nor are there other complex considerations that are not directly or indirectly related to cost.

Those descendants of Aboriginal women who are still left out, or relegated to an inferior category of status, even after the federal government's latest round of incomplete amendments to the Indian Act in 2011, should not be foreclosed from seeking a remedy under the Canadian Human Rights Act.

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A jurisprudential logjam seems to be breaking up on the issue of the caregiving responsibilities of workers. In two recent decisions, Canadian National Railway Co. v. Seeley (CHRR Doc. 13-3041) and Canada (Attorney General) v. Johnstone (CHRR Doc. 13-3006), the Federal Court ruled in favour of women whose family childcare responsibilities conflicted with work rules.

The women were both working for employers with rotating or unpredictable schedules. When Denise Seeley, a freight train conductor whose home depot was Jasper, Alberta, did not report to Vancouver to cover a shortage because she could not arrange adequate childcare, she was fired by Canadian National. When Fiona Johnstone, a border services agent, requested a static shift so that she could make stable childcare arrangements instead of working 56-day rotating shifts, the Canadian Border Services Agency offered her only part-time hours.

For women workers the conflict between work requirements and childcare responsibilities has always been a key equality issue, and women have been penalized as workers because they are the primary caregivers for children and other family members. They have found it necessary to leave paid work, cut back hours, step aside from promotions, or avoid assignments that require travel in order to care for their family members.

Today about 60 percent of women work for pay in Canada. They are almost half the work force, and two thirds of them have children under 6. Some of them are also responsible for older parents — members of the “sandwich generation”. Women (and some men too) are increasingly in conflict with employers who want them as workers, but also want them to function as though they do not have family responsibilities.

In the cases on family status discrimination, federal employers — sometimes represented by the Attorney General of Canada — have made a series of arguments: the ground "family status" does not include parental childcare obligations, since it only protects a "status" not obligations integral to it; figuring out how to balance the obligations of family life and work belongs in the home, not in the workplace; parents make choices about how to care for their children, and those personal choices are not protected by human rights legislation. In short, these federal employers take the position that families have nothing to do with them, and they do not have a duty to accommodate a worker's need to provide adequate childcare.

The B.C. Court of Appeal encouraged this resistance in its 2004 decision in Health Sciences Assn. of British Columbia v. Campbell River and North Island Transition Society (50 C.H.R.R. D/140). That Court ruled that to establish "family status" discrimination a complainant had to show that an employer changed a term or condition of work and the change caused a “serious interference” with a family obligation. Application of this test would defeat most family status discrimination claims.

Fortunately, there is now a line of cases that reject these arguments, including Whyte v. Canadian National Railway Co. (71 C.H.R.R. D/316), Seeley, and Johnstone. The ground "family status" includes childcare obligations, according to the Federal Court, and there is no reason to make the threshold for proving family status discrimination more onerous than it is for any other ground.

There is a new opportunity to address the conflicts between work rules and family obligations, and a new opening for research, study and consultation on how these conflicts affect women and men in their families and at work. 

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The Harper Government has chosen to support a private member's bill, introduced by Conservative backbencher, Brian Storseth, which repeals s. 13 of the Canadian Human Rights Act. Section 13 prohibits the communication of hate messages by telephone or on the internet. Since 1977, it has been used mainly against prominent white supremacists, such as John Ross Taylor and Ernst Zundel, who have made careers of promoting hatred against Jews and non-whites.

Unfortunately, Bill C-304 is not a careful, thoughtful, forward-looking revision of human rights law. It is a wrong‑headed, anti‑human rights reaction to claims from right-wing journalists that human rights legislation should not permit any questions to be raised about their speech and publications.

The Conservatives have been arguing that only Criminal Code prohibitions against hate speech are necessary, and hate speech provisions in human rights legislation are, on the one hand, illegitimate and heavy-handed, and, on the other hand, too important to be in the hands of human rights institutions. 

The House of Commons passed Bill C-304 in June 2012 and it is now in second reading in the Senate. If it passes second reading, it will be referred to a Senate Committee for review and public input before it returns to the Senate for final reading. In other words, although it is the very last minute, there is still time for the Senate to think again. 

The Supreme Court of Canada's recent unanimous decision in Whatcott (CHRR Doc. 13-3015) should give the Senators pause. The Supreme Court of Canada, reviewing the constitutionality of the hate speech provision in The Saskatchewan Human Rights Code, decided that it is legitimate and lawful. Prohibitions against hate speech in human rights legislation are a justifiable limit on the Charter guarantees of freedom of expression and religion because their purpose is to discourage and eliminate the effects of systemic discrimination against vulnerable groups.

The Court said the goal of prohibitions against hate speech is not to compel anyone to think correctly, nor is it to protect against representations that are merely repugnant and offensive. The Court ruled that the hate speech provisions in human rights legislation are to be applied objectively, with a focus on extreme manifestations of hatred and, most importantly, with a focus on the likely effect of the expression.

While in Whatcott the Court was dealing with The Saskatchewan Human Rights Code, this ruling confirms the constitutionality of similar hate speech provisions in all human rights laws. Whatcott confirms that, while Bill Storseth and Harper's Conservatives may not like s. 13 of the Canadian Human Rights Act, human rights legislation and human rights institutions have an important role to play with respect to hate speech in Canada, and that role is constitutional.

What the Senators should be alert to, when they come to their final vote, is that s. 13 is the only provision in Canadian statutory human rights law that applies to the internet, because regulation of the internet falls within federal jurisdiction. That means it is the only human rights provision that can address the mode of communication that is now the easiest and most popular one for disseminating racist, anti-Semitic, homophobic and other hateful messages.

The Speaker of the Senate, Noel Kinsella, who for many years was the Chief Commissioner of the New Brunswick Human Rights Commission, took the rare step, for a Speaker, of intervening in the Senate debate on Bill C-304. At the end of his speech, he asked this question: "Do we really not want to have a statutory provision to deal with discrimination on the Internet?"

Senators should think hard.

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In the November / December 2012 View Point on the Supreme Court of Canada's decision in Moore v. British Columbia (CHRR Doc. 12-3089), we wrote about the good news. The Supreme Court of Canada swept away a narrow definition of “service”  and faulty comparator group analysis, both of which were impeding progress towards inclusion for people with disabilities. In this case, Jeffrey Moore, a child with severe dyslexia who was denied adequate assistance in school to learn to read, was told by lower courts that the service in question was special education, not general education, and that consequently he could only compare himself to other children with special needs. Since he did not receive worse treatment than other children with dyslexia, he could not claim discrimination. Justice Rosalie Abella, for a unanimous court, repudiated this closed-box thinking. It cannot be the case that as long as accommodation for all disabled students is inadequate, human rights law can do nothing. On the contrary, she wrote, adequate special education is the means by which children with disabilities gain access to the education that is the right of every child.

But here is the bad news. It has two parts. First, the Supreme Court of Canada did not find the province liable for the discrimination. Instead, it placed responsibility for the failure to adequately accommodate Jeffrey solely on the shoulders of the school district, finding that, in a time of budgetary restraint, the district could have cut other programs rather than the special assistance that Jeffrey and other children with severe dyslexia needed. The Tribunal had ruled that the province was also liable for the discrimination because it had:  imposed a funding cap on monies for special education by restricting the number of students that a district could identify as needing special assistance; under-funded the District; failed to ensure that necessary services, including early intervention, were mandatory; and failed to monitor the activities of the districts. The Tribunal ordered the Province to allocate funding on the basis of actual incidence levels of learning disabilities and to establish mechanisms to ensure that accommodations for students with severe learning disabilities were appropriate and adequate.

But the Supreme Court ruled that this remedy could not be sustained. With respect to the funding cap on monies for children with learning disabilities, Abella wrote: “It is entirely legitimate for the Province to choose a block funding mechanism in order to ensure that districts do not have an incentive to over-report Severe Learning Disabilities students, so long as it …complies with its human rights obligations”.  The Court found that the province was not liable in any way for the discrimination.

For the future inclusion of children with severe dyslexia in school systems in British Columbia, this approach is not promising. The responsibility for inclusion has been assigned entirely to school districts, while the senior level of government, which has the statutory authority for education and controls the funding for the districts, is let off the hook.

The second part of the bad news, which is integrally connected to the first, is Abella's distinction between individual and systemic discrimination. She writes that it is not helpful to approach discrimination in a binary way, dividing individual discrimination from systemic discrimination: “A practice is discriminatory whether it has an unjustifiably adverse impact on a single individual or systemically on several”.

However, Abella proceeds to do exactly what she warns against. She finds that this claim was individual, made on behalf of Jeffrey, and the evidence was principally about him. The Tribunal should not have considered systemic evidence regarding provincial funding mechanisms or the entire provincial administration of special education. Apparently, it should have conducted a much narrower inquiry, and left the systemic funding and policy issues alone. The effect of treating this case as an individual one, and the systemic remedies against the province as not legitimate, is to require more parents to take on the long and costly struggle that Jeffrey's parents did.

Although this decision will be known for its resounding endorsement of equal access to education for children with learning disabilities, it is a timid one. Because of its approach to the remedies the Court's decision does not guarantee equal access in fact.

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