View Point

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

Andrella David is a Black Nova Scotian and a courageous, determined woman. In March 2009, she went to her local grocery store to buy some ice cream – a Sobeys store in Tantallon, Nova Scotia, a suburb of Halifax.

While she was waiting in line to pay, the store manager, Jennie Barnhill, walked up to her and accused her of being a shoplifter. Barnhill said the store had captured the past thefts on video surveillance cameras, and told Ms. David that if it happened again, Sobeys would press charges.

Immediately, Ms. David said that she had never shoplifted and demanded to see the videotapes. While the images were fuzzy, Ms. David could see that the woman on the tape was darker-skinned than her, and smaller, fuller-faced, with a different hairstyle. She told Ms. Barnhill that the only thing she and the alleged shoplifter on the videotape had in common was that “she is Black and I am Black. If you think that girl looks like me you must think all Black people look alike”.

Ms. Barnhill also accused Ms. David of being present in the store and shoplifting on  “cheque day”, inferring that social assistance was Ms. David's source of income. She also said that Sobeys had arrested someone else from Pockwock Road, the Black settlement where Ms. David lives, for shoplifting the week before. Add it up and here's the stereotype: Ms. David is Black, she is on welfare and she steals.

Andrella David got nowhere with Ms. Barnhill and later tried to straighten out the situation with Sobeys' management at head office. But she was told that Sobeys accepted Ms. Barnhill's word over hers. Sobeys continued to back its manager's claim for seven years, even though Ms. Barnhill conceded at the hearing of Ms. David's complaint in 2015 that there was no evidence to support the shoplifting accusation, and, further, that if Ms. David had been white she would not have been stopped.

Sobeys' refusal to acknowledge that Ms. David was not a shoplifter caused not just a temporary harm, but continuous harm.

Ms. David was shocked and devastated by the treatment she received. She never went to a Sobeys store again. She travelled further away from home to shop. She experienced depression, anxiety, shame and humiliation. She was afraid in other stores that she was being watched. Until the complaint went to hearing, she never told her daughter because she did not want her to witness her mother's humiliation and hurt.

Race discrimination complaints are often difficult. One reason is that the response of those who are accused of racism is often so defensive. Any capacity to listen or learn seems to disappear. In this case, even a large and sophisticated enterprise like Sobeys Group Inc., Canada's second largest food retailer, with historical roots in Nova Scotia, could not deal with this complaint with openness and respect.

 

Instead, Sobeys fought all the way, first to dispute the complaint, despite its lack of evidence, and then to try to keep any remedial award as small and as narrow as possible.

The Board of Inquiry awarded Ms. David $3,000 a year for seven years ($21,000) for the continuous harm caused by the discrimination, and ordered Sobeys to provide training for all its management staff in the province.

But another part of Andrella David's award should be a big thanks from the public for the service she performed by exposing this too ordinary race discrimination, and doing what she could to stop it for others.

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On January 26, 2016, the Canadian Human Rights Tribunal (“CHRT”) released a historic decision ("decision") finding that Canada is racially discriminating against over 163,000 First Nations children and their families by providing flawed and inequitable child welfare services ("FNCFS Program") and by failing to implement Jordan's Principle to ensure equitable access to government services available to other children.[1] In a subsequent order issued on April 26, 2016, the CHRT commented on Canada's failure to take sufficient immediate action to comply with its January decision. It wrote: “[i]t is unclear why and how some of the findings [of discrimination] have not been addressed within the three months since the [January] decision. Instead of being immediate relief, some of these items may now become mid-term relief”.[2]

In response to this inaction, the CHRT ordered Canada to confirm that it had fully implemented Jordan's Principle and to report on the steps it had taken to comply with its January decision. Such reporting orders are exceptional and are generally issued only in cases where the failure to promptly comply with an order may cause irreparable harm, particularly to a vulnerable group, as was the case in Doucet-Boudreau.[3]  Similarly, in Caring Society (No. 15), the CHRT heard and accepted evidence that Canada's discriminatory FNCFS Program was causing First Nations children to be removed from their families and communities and put into care at alarming rates.[4] It ordered Canada to immediately cease its discriminating conduct towards against First Nations children in accordance with its ruling.[5]

It is disappointing that in the face of these tragic circumstances and such an exceptional legal measure, Canada failed to take the immediate action necessary to lessen the discrimination experienced by First Nations children receiving child welfare services following the CHRT's April reporting order. By way of example, the 2016 Budget allocates $71.1 million to First Nations child welfare services in 2016–2017, only $60.38 million of which will be directed to service delivery for children and families. By contrast, Canada's own internal documents estimated that a minimum of $108.1 million plus an annual 3 percent increase for inflation was required (in 2012 dollars) to provide First Nations children with child welfare services comparable to those available off reserve.  The largest funding allocation in the 2016 Budget for child welfare services for First Nations children will not be conferred until 2020–2021 and that depends on whether the current government gets re-elected. When asked why First Nations children needed to wait five years — or a quarter of their childhood — to receive services comparable to those available to others, Prime Minister Trudeau stated that the government needed to “create the capacity” before providing additional funds to FNCFS agencies.[6] Yet, none of the evidence presented before the Tribunal supports the Prime Minister's claim that First Nations agencies do not have the capacity to deliver equal services to First Nations children. From a human rights perspective, the claim, which is akin to stating that discrimination against certain groups is acceptable because they are not, in the eyes of the party responsible for the discrimination or the public, ready for equality, is also very problematic.

Canada's inaction with respect to the implementation of Jordan's Principle is equally disconcerting. In its May 10, 2016, compliance report to the CHRT, Canada claimed that it had fully implemented Jordan's Principle. Yet, Canada has failed to take the measures necessary to ensure that First Nations children not longer experience discrimination as a result of jurisdictional disputes. For example, the INAC website directs the public to contact a series of telephone numbers for Indigenous and Northern Affairs Canada (“INAC”) regarding Jordan's Principle cases. The Caring Society called each number to test the accessibility of INAC's Jordan's Principle reporting system. Results revealed out of service telephone numbers, automated answering machines that did not include a Jordan's Principle option and government officials who were not aware of Jordan's Principle or referred the caller to a First Nations organization. Only one INAC office was able to send contact information for officials several hours after the original call.[7]  The results of the calls were immediately brought to INAC's attention and the Caring Society sought confirmation from INAC that the matter has been addressed but no response has been received. This raises significant concerns regarding Canada's compliance with the CHRT January order. More importantly, it suggests that First Nations children will continue to experience discrimination when seeking access to government services, or simply be denied those services altogether.[8] This is not surprising given that the CHRT found that jurisdictional disputes caused First Nations children to be denied services available to other children due to poor or complete lack of coordination between and within governments. Such ongoing systemic and widespread discrimination cannot be remedied simply by making grandiose statements.

On June 14, 2016, faced with this continued inaction, and upon receipt of Canada's compliance report regarding the CHRT's findings of discrimination relating to its FNCFS Program, the CHRT cancelled an upcoming case conference it had scheduled with the parties to discuss the implementation of the January decision. In particular, it wrote:

The Panel finds there are far more unresolved issues to deal with th[a]n it had expected and is now questioning the benefit of having a meeting at this time. Therefore, the Panel proposes to use its limited resources to address as many of the outstanding issues as it can now.[9]

The CHRT is expected to rule upon the Caring Society's requests for immediate relief later this year. It is unfortunate that such requests are even necessary and that Canada remains unwilling to comply voluntarily with the CHRT's decision by ceasing its discriminatory conduct towards some of the most vulnerable members of our society, First Nations children.

Anne Levesque, B.A., LL.B., MSt (Oxon)
is proud to have been one of the lawyers who represented the
 First Nations Child and Family Caring Society of Canada in this case.

_________

1.     First Nations Child and Family Caring Society of Canada v. Canada (Attorney General) (No. 15), 2016 CHRT 2, CHRR Doc. 16-3003 (“Caring Society (No. 15)”). When there is a dispute as to which level of government must fund a particular service, Jordan's Principle states that the service must be immediately provided by the government that is contacted first, and that jurisdictional issues must be sorted out later. For more information on Jordan's Principle, visit https://fncaringsociety.com/jordans-principle.

2.     First Nations Child and Family Caring Society of Canada v. Canada (Attorney General) (No. 16), 2016 CHRT 10, CHRR Doc. 16-3033, para. 21.

3.     In Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3 (“Doucet-Boudreau”), the Supreme Court of Canada upheld an order of a trial judge from Nova Scotia in a language rights case to retain jurisdiction to hear reports on the status of the effort of the province to provide adequate school facilities and programs for Francophones. In so doing, the Supreme Court noted that for every school year that governments do not meet their obligations under s. 23 of the Canadian Charter of Rights and Freedoms, there was an increased likelihood of assimilation which carries the risk that numbers might cease to “warrant”, and thus extinguishing the right to school instruction in a official minority language. 

4.     Caring Society (No. 15), at para. 344.

5.     Ibid, at para. 481.

6.     APTN Interview with Prime Minister Justin Trudeau dated June 3, 2016, available at:  http://aptn.ca/news/2016/06/03/pm-trudeau-faces-wide-array-of-question-d....

7.     For more information about the calls, see APTN story which aired on June 21, 2016, available at http://aptn.ca/news/2016/06/21/indigenous-affairs-help-lines-dont-work-a....

8.     On June 7, 2016, the Caring Society contacted the regional offices and numbers on the website and asked to speak to the person in charge of Jordan's Principle cases noting that the INAC website says that persons with questions regarding Jordan's Principle should call the regional INAC office. The object of the exercise was to ensure members of the public with Jordan's Principle cases were able to bring them to INAC's attention and have them addressed. The Caring Society contacted the 1-800 number listed under the Atlantic, Quebec and Manitoba Regions and the person receiving the call advised that they did not have a contact person and that they would send out a general email. The number listed for Quebec Region (1-800-263-5592) yielded a completely automated system with five options to leave messages about specific topics. None of the topics included Jordan's Principle inquiries. The number listed for the Atlantic Region appeared to be out of order as multiple calls yielded only a tone at the end of the line. Calls to the remaining regional offices of Ontario, Saskatchewan, Alberta, and the Yukon revealed polite responses from staff but did not yield a person to speak to about the cases. The Caring Society received responses ranging from options only to leave messages on voice mail to staff saying they did not know what Jordan's Principle was, to being referred to the First Nations Health Authority (in BC) and suggesting they leave a message for a person who would not be back in the office for several days. Ontario region did contact the Caring Society several hours after our call with the names and addresses of persons to reach.

9.     Letter from the CHRT to the parties dated June 14, 2016.

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For many years, human rights activists and minorities have complained about the difficulty in getting cases before Quebec's Human Rights Tribunal, citing significant delays and concerns about lack of access to justice. In Ontario, for example, almost 80 percent of cases make it through preliminary screening to some form of hearing before the tribunal. In Quebec, the figure is closer to 5 percent.

In March 2016, these issues were in the news again. Quebec's Human Rights Commission dismissed complaints based on age, race, and disability against the Société de transport de Montréal (“STM”) and Montreal police in a case involving Michaëlla Bassey, a Black high school student in Montreal.

In June 2012, Bassey was 12 years old when she asked a Montreal bus driver for information about a bus schedule. She had difficulty deciphering it because of her dyslexia and a visual-spatial learning disability. The bus was stationary and located several feet before the stop. As any Montreal transit rider knows, it is not unusual for passengers to ask for information from drivers before buses begin their route. In this case the driver refused to answer Bassey's English inquiries; he was on his cell phone, and motioned her towards the bus stop, instructing her in French to read the posted schedule.

Once on the bus, the child reiterated her request. The driver refused to answer or to listen to the child's mother, whom Bassey was speaking to on her cell phone in hands-free mode. Bassey wanted her mother to explain to the driver why Bassey required assistance. Bassey also attempted to obtain the name and number of the bus from the driver, who refused to co-operate.

The bus driver ordered the child to retreat past the yellow line designed to keep people away from drivers. According to video evidence, he motioned to her three times to head towards the back of the bus. Bassey did return to her seat and sit down, but attempted one more time to communicate with the bus driver, again with her mother on the phone.

At this point, the bus driver used his cellular telephone to call a supervisor and immobilized the bus. When the supervisor arrived, the supervisor asked Bassey to get off the bus and offered to drive her home. Bassey, on instructions from her mother, indicated that she wished to stay on the bus because her mother was on her way. The police arrived and forcibly ejected Bassey.

Incredibly, it took the Commission almost four years to investigate the case before dismissing the complaints. The Commission decided that the driver was following the Highway Safety Code that prohibits the use of cell phones while driving.

The STM argued that its two employees had systematically followed the procedure and their training without regard for sex, race, age or handicap. The STM also said it had no knowledge of the child's handicap.  The evidence showed that the STM has no protocols, however, to deal with children with disabilities.

In short, formal equality had been respected. 

The investigation report offers no substantive rationale for forcing Bassey off the bus when the child had shown no aggressive or disruptive behavior. More important, the simple initial inquiry regarding the bus schedule could have been answered easily while the bus was immobilized at the outset.  The explanation regarding the absolute prohibition of cell phones is difficult to square with the fact that the driver had been on his cell phone on at least two occasions.

Equally troubling is the decision to absolve the police officers of responsibility based on a protocol that the police are not required to inquire into the reasons for STM requests for assistance. The logical result of this line of reasoning is that in such circumstances, the police enjoy impunity. 

The investigation lacked any analysis of the effects of allegedly discriminatory behaviour – rather than the intent – let alone the importance of substantive equality and of considering the structural impact of the applicable procedures and rules. No intersectional analysis was carried out. 

Despite the deficiencies, such dismissals by commissions are notoriously difficult to overturn. They are generally understood by the courts not to be decisions on the merits, but merely responses to preliminary questions about whether a matter should be referred to the Tribunal. In this case, however, the Commission had clearly reached a decision on the merits, terminating a vulnerable complainant's rights and raising fresh questions about the human rights system in Quebec.

The Bassey family has not made any decision about next steps at the time of writing, but the case underscores growing concerns about lack of access to justice in Quebec's human rights system and the need for reform.

Pearl Eliadis*

 

*     Pearl Eliadis is a human rights lawyer based in Montreal. Her book on Canadian human rights commissions and tribunals, Speaking Out on Human Rights: Debating Canada’s Human Rights System, was named one of the best books of 2014 and won the 2015 Huguenot Society of Canada Award.

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On January 26, 2016, the Canadian Human Rights Tribunal (“CHRT”) released a historic decision finding that Canada is racially discriminating against 163,000 First Nations children by providing flawed and inequitable child welfare services ("FNCFS Program") and failing to implement Jordan's Principle to ensure equitable access to government services available to all other Canadian children.1 While the CHRT requires further clarifications from the parties before making any specific remedial orders, the decision provides that a reform of Canada's FNCFS Program is needed in order to ensure that the services provided to First Nations children are in their best interest and meet their cultural, historical and geographical needs.2

The ink on the CHRT's decision was not yet dry when further allegations of discriminatory conduct by Canada against First Nations children came to light. This time they related to discrimination in the context of health services. On February 21, 2016, CBC News reported that Health Canada has denied several requests for coverage of braces to correct a handicapping malocclusion of Josey Willier, a First Nations teenager from Alberta who is experiencing several headaches and chronic pain as a result of her condition.3 Such essential medical services ought to be covered by the Non-Insured Health Benefits Program (“NIHB”), a program administered by Heath Canada  aimed at helping First Nations people and Inuit reach an overall health status that is comparable with other Canadians.4  Though Josey's braces were deemed to be medically necessary by her doctor, and her requests were accompanied by all necessary medical evidence, Health Canada has denied her multiple requests for coverage.  A judicial review application was commenced on March 24, 2016, challenging NIHB's decision to deny the child coverage.

As it turns out, Josey's story is just the tip of the iceberg. Shortly after Josey's mother spoke out publicly about her daughter's situation, shocking statistics relating to the NIHB's rejection rate were released. Of the over 534 requests for essential medical services coverage by on behalf of First Nations children to Health Canada, 80 percent were rejected in the first round. The few that went to the second round had a 99 percent rejection rate. On the third round, 100 percent of requests were denied by Health Canada bureaucrats.5

While the CHRT's decision calls for reform to address its numerous findings of discrimination, the scope of its application is limited to child welfare and, as such, does not strictly apply to Josey's case which relates to health services.  This is because complaints filed under the Canadian Human Rights Act must relate to only one specific service area. Of course, as any social worker will tell you, child welfare cannot be seen in a silo and requires a holistic approach also involving adequate housing, education and health for children. While the CHRT decision does not specifically require reform in these service areas such as health, the expensive definition of discrimination adopted by the CHRT in its decision relating to child welfare services – one that requires Canada to offer First Nations children services comparable to other children, that are in their best interest and that consider their historical, cultural and geographic needs – may be indicative of how the CHRT will rule when adjudicating further allegations of discrimination against First Nations children relating to services areas linked to child welfare.  Given that Minister Wilson-Raybould has recently stated that any form of discrimination is disgraceful and that change is needed in order to honor the respect of reconciliation, it is hoped that Canada will implement the CHRT's calls for reform holistically and across all services its provides to First Nations children rather than spending years and millions of Canadian tax dollars in legal fees fighting a long chain of human rights complaint relating health, housing and education.6  

Anne Levesque and Sarah Clarke7

 

1.     First Nations Child and Family Caring Society of Canada. v. Canada (Attorney General), 2016 CHRT 2, CHRR Doc. 16-3003.

2.     Ibid at para 463–65 (emphasis in original decision).

3.     Go to http://www.cbc.ca/beta/news/politics/mother-fights-for-daughter-medical-1.3456562 for the CBC article.

4.     For more information relating to the Non-Insured Health Benefit Program go to:

        http://www.hc-sc.gc.ca/fniah-spnia/nihb-ssna/index-eng.php

5.     42nd Parliament, 1st Session, Edited Hansard, Number 020, February 18, 2016 available online at:

        http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&Parl=42&Ses=1&DocId=8105393

6.     In 2014, the Canadian Human Rights Commission reported that it had referred 26 complaints lodged by First Nations Peoples against Canada. See “Special Report to Parliament on the Impacts of Bill C-12” Canadian Human Rights Commission (September 15 2014) Available online at:

        http://www.chrc-ccdp.gc.ca/sites/default/files/special_report_to_parliament_on_the_impact_of_bill_c_21_2014.pdf

7.     Anne Levesque and Sarah Clarke both represented the First Nations Child and Family Caring Society of Canada in its historic complaint against the government of Canada regarding its discriminatory child welfare services and its failure to implement Jordan's Principle. Sarah Clarke is representing Josey Willier's mother in her efforts to obtain the essential medical services for her daughter.

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On January 26, 2016, the Canadian Human Rights Tribunal (“CHRT”) released a historic decision finding that Canada is racially discriminating against 163,000 First Nations children and their families by providing flawed and inequitable child welfare services ("FNCFS Program") and failing to implement Jordan's Principle to ensure equitable access to government services available to other children (2016 CHRT 2, CHRR Doc. 16-3003).

The decision marked the end of a nine-year legal battle waged by Canada against the First Nations Child and Family Caring Society and the Assembly of First Nations since they lodged the complaint in 2007. Numerous attempts by Canada to have the complaint dismissed on technicalities and troubling conduct on the part of Department of Justice lawyers who failed to disclose tens of thousands of relevant documents caused significant delays in the case, a litigation strategy that came at an immense cost to Canadian taxpayers. In total, Canada spent well over $5.3 million in legal fees fighting this complaint.

The CHRT's findings against Canada joins the growing chorus of Canadian voices collectively calling for immediate and concrete action by the government to ensure substantial equality for First Nations children. Children have been particularly instrumental in leading the social movement in support of the case. On February 11, 2016, over 600 children marched on Parliament Hill to demand that Canada implement the CHRT's decision without delay, while thousands of other children organised over 40 similar gatherings across the country. Countless more sent Valentine's Day cards to Prime Minister Trudeau urging him to "Have a Heart" for First Nations children.

Despite the children's complete victory before the CHRT and the unprecedented public outcry in support of equality, the new government has still taken no steps to improve the situation of First Nations children living on reserves. This is not for lack of awareness of the discriminatory impacts of the FNCFS Program or how to resolve these problems. As highlighted in the CHRT, Canada has known for nearly two decades that it its child welfare services were not meeting the needs of First Nations families and were driving children into care. More recently, the Truth and Reconciliation Commission's first call to action related to child welfare and urged the government to take immediate action reduce the number of children in care and fully implement Jordan's Principle. While on the day of the release of the decision the Minister of Justice stated "there will likely not be any reason why we would seek judicial review of this decision", at the time of writing this article, Department of Justice lawyers had still not confirmed whether they would be challenging the CHRT decision before the Federal Court.[1] Canada's position internationally regarding the case is also cause for concern. In response to a question of regarding the case by the Committee on Economic, Social and Cultural Rights, which is currently reviewing Canada's human rights track records for the past 10 years, Canada placed more emphasis on an earlier CHRT decision to dismiss the case (2011 CHRT 4, 73 C.H.R.R. D/219) that was later overturned (2012 FC 445, 74 C.H.R.R. D/230; aff'd 2013 FCA 75, 76 C.H.R.R. D/353) than on the CHRT's finding of discrimination.[2] Its reply otherwise vaunted the fact that it had implemented the Enhanced Prevention Focused Approach to funding in six provinces, a funding model that the CHRT found to be discriminatory and which creates incentives to take First Nations children into care needlessly.

While the legal precedent created by the CHRT decision is certainly cause for celebration, it has not yet translated in meaningful change for the over 163,000 First Nations children currently receiving discriminatory child welfare services from the Canadian government. In the absence of the political will or ethical compass to do so, Canada may soon be legally compelled to act  by the CHRT which will issues its orders pertaining to immediate and longer term relief remedies in the coming weeks or months.

Anne Levesque, B.A., LL.B., MSt (Oxon) is proud to have been one of the lawyers who represented the
First Nations Child and Family Caring Society of Canada in this case.

 



1.   Hansard, 42nd Parliament, 1st Session, Honorable Jody Wilson-Raybould, Minister of Justice, January 26, 2016. Available online at http://www.parl.gc.ca/HousePublications/Publication.aspx?Pub=Journals&La...
E&Mode=1&Parl=42&Ses=1&DocId=8073490&File=0. It is noted however that in a speech to the Canadian Bar Association on February 20, 2016, the Honorable Jody Wilson-Raybould stated that she should not be seeking a judicial review of the CHRT decision. However, at the time of writing this article, no written confirmation of this has been obtain by Department of Justice lawyers.

2.   Replies of Canada to the List of Issues, Committee on Economic, Social and Cultural Rights, fifty-seventh session, dated February 4, 2016. Regarding the decision, Canada simply stated: “On January 26, 2016, the Tribunal released its decision on the merits of the complaint. The Tribunal's finding of discrimination against Canada is being reviewed to determine appropriate next steps”.

 

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A decision from the Canadian Human Rights Tribunal on the complaint of the First Nations Child and Family Caring Society (“FNCFCS”) against Indian and Northern Affairs is expected this month. The Government of Canada, under Stephen Harper, tried to block this complaint from being heard on the merits, and used every legal tool available to delay and complicate the proceedings. Let's hope those days are over.

Filed in 2007, the basic allegation of FNCFCS is that the Government of Canada under-funds child welfare services for on-reserve First Nations children. Provinces fund child welfare services at a higher level, and FNCFCS says that the federal government's under-funding of child welfare services has a systemic discriminatory impact on the lives of Aboriginal children living on reserves.

After first trying to prevent the Canadian Human Rights Commission from referring the complaint for hearing, in 2011 the Government of Canada asked the Tribunal to dismiss the complaint on a preliminary motion. Canada argued that the complaint was not properly grounded in the law because: (1) funding is not a service within the meaning of the Canadian Human Rights Act, and (2) the complaint relies on an improper comparison between federal and provincial governments.

Tribunal Member Shirish Chotalia agreed, and dismissed the complaint on the grounds that the Act does not permit a comparison between services provided by two different service providers to two different sets of recipients (73 C.H.R.R. D/219). In other words, FNCFCS cannot compare services provided by the federal government to on-reserve children to services provided by provincial governments to off-reserve children. Chotalia concluded that, in the absence of a proper comparator group, there could be no finding of adverse differential treatment against the Government of Canada, and so the complaint could not proceed.

In April 2012, the Federal Court of Canada overturned this Tribunal decision (74 C.H.R.R. D/230), breathing some common sense into interpretation of the Act. The Federal Court pointed out that there are many complaints in which a direct comparison is not possible or relevant. The Court noted that comparison is an evidentiary tool that can illuminate how discrimination works in a particular case. But it is not a requirement of the law.

With respect to Aboriginal people, the situation is distinct. The Government of Canada provides some services only to Aboriginal people on reserves. Similar services – health, education, child welfare – are provided to other Canadians by provincial or territorial governments. If the Canadian Human Rights Act cannot apply when Aboriginal people wish to complain that a service provided only to them is so deficient that it constitutes systemic discrimination, the Act cannot respond to the realities of their lives.

When the Government finally, in 2007, repealed the statutory bar to human rights complaints being filed against Band Councils or the Government of Canada when they were acting under the Indian Act, Minister Jim Prentice said that Aboriginal people could now file complaints regarding access to services or the quality of services available to them on reserve. But before the Tribunal and the Federal Court, the Government of Canada argued exactly the opposite. Aboriginal people cannot complain about the quality of a service provided only to them – said the Government of Canada – because they must make a comparison, and they have no other group to compare themselves to.

The Federal Court found this interpretation unreasonable because it excludes First Nations people from human rights protection when services are provided only to them. In March 2013, the Federal Court of Appeal (76 C.H.R.R. D/353) upheld Federal Court's decision, and the complaint finally proceeded to a hearing on its merits.

Soon we will find out what the Tribunal has decided on this ground-breaking issue. We will find out whether the Canadian Human Rights Act can provide an effective legal remedy for on reserve First Nations people when they are discriminated against. But, no matter which way the Tribunal rules, this is the moment for the new Government of Canada to step up and provide adequate funding for basic public services on reserves. Harper's administration obstructed the fulfillment of the rights of Indigenous peoples in many ways and in many venues. Let's hope that the new Ministers of Justice and Indigenous Affairs will sweep that practice away, and give us a new path. 

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A breath of fresh air just blew through the Canadian human rights community. That breath of fresh air has a name: Marie-Claude Landry, the new Chief Commissioner of the Canadian Human Rights Commission.

First of all, as the newly appointed Chief Commissioner she undertook a cross-country consultation with human rights groups and equality-seekers to introduce herself and to listen. She asked: what support are human rights groups looking for? and what does the Commission need to do now? A lot of diverse groups across the country told Ms. Landry that the Canadian Human Rights Commission needs to have a strong public presence and be a voice for human rights. They told her that they need her to speak up.

Canada's human rights institutions matter. They are the public voice for human rights. When they are “risk‐averse” and soft‐spoken, there is a public silence about some of the toughest human rights problems. That shrinks public understanding of human rights.

We need human rights commissions to engage with the key human rights issues of the day so that, as Canadians, we stay alert to what is happening in our midst, and stay conscientious and determined to achieve equality. Human rights institutions – whose business it is to address inequality – must be vocal about persistent patterns of discrimination in Canadian society.

Our human rights commissions are not simply processors of complaints, or advisors to business about complaint-avoidance. We need them to be public, courageous and outspoken advocates, identifying human rights violations, speaking out about them, and working for an end to discrimination, in all its forms.

The new Chief Commissioner seems to understand this, and has shown herself ready to both listen and speak. Right after the election, Marie-Claude Landry issued a press release calling on a new Parliament to “begin repairing the erosion of human rights in Canada, and to move swiftly to repeal legislation and reverse policies that promote discrimination and prejudice”. Among other things, Ms. Landry called on the new government to:

·     accelerate the process for bringing in refugees and asylum seekers and ensure that the selection process is not discriminatory;

·     ensure that the arbitrary detention of thousands of undocumented people seeking asylum in Canada, many of whom are suffering from mental illness, is brought to an end;

·     immediately convene a national inquiry into missing and murdered Aboriginal women and girls, and develop a national action plan;

·     ensure that all people in Canada have access to safe drinking water and adequate housing;

·     end the inequitable funding of child welfare services and schools on First Nations reserves;

·     stop the overuse of solitary confinement to manage offenders, particularly those who are Black and Aboriginal and those with mental illness; and

·     protect the rights of all women to express their religion.

This is a good start. Now it will be important for Canadians to show we support an outspoken and brave new Commissioner, and for Parliament to show us that this is a new era for human rights in Canada.

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The more you learn about the federal policy on the niqab issue, the more absurd it becomes.  Press reports do not tell the details of the court case or reveal the real circumstances of the citizenship ceremony. It helps to look beyond the current cut lines.

Zunera Ishaq comes from Pakistan and is a devout Sunni Muslim. She says that her religious beliefs obligate her to wear a veil that covers most of her face. She will unveil herself to a stranger only if it is absolutely necessary to prove her identity, or for purposes of security, and even then only privately in front of other women.

In December 2011, Citizenship and Immigration Canada (“CIC”) announced a new policy requiring all persons to take the citizenship oath with their faces uncovered. CIC told the Federal Court that the reason for this new policy was “concerns that citizenship candidates were not actually reciting the oath”.

You might wonder why reciting the oath, and being seen to recite the oath, is crucial. By the time candidates get to a citizenship ceremony they have already been granted citizenship. They have met all the requirements and are going through the final formalities. They have passed a citizenship exam and their identity has been confirmed for security purposes. Ms. Ishaq removed her face veil in order to be identified.

After reciting the oath each candidate signs a form certifying that she has taken the oath of citizenship. The Federal Court found that it is the candidate's signature on this form, rather than a visual confirmation of the candidate saying the oath, that is the proof needed that a candidate has taken the oath of citizenship.

Nonetheless, at the ceremony, the candidates, as a group, recite the oath. Depending on where and when the ceremony is held, there may be 20 or 50 candidates reciting the oath together. The 2011 policy is ostensibly intended to ensure that the citizenship judge can see the faces of the candidates reciting the oath. But a citizenship judge cannot reasonably be expected to keep track of exactly what is being said by 20 or 50 moving mouths in front of her. If seeing the candidates recite the oath is crucial, surely it should be done one by one, not in chorus.

But the 2011 policy stipulated that if a candidate did not remove a face covering while saying the oath during the citizenship ceremony, the Certificate of Citizenship would not be given, and citizenship would not be granted. It also stipulated that despite the fact that CIC's website advises that there can be private citizenship ceremonies in urgent or extenuating circumstances, “under this new directive there are no options for private oath taking, or oath taking with a female official”.

For CIC to simply assert that the value of women’s equality is in issue does not amount to a justification for the discriminatory effects of the policy on Ms. Ishaq. If the no face covering policy were challenged in a human rights complaint – and it could easily have been, since citizenship judges seem to be providing a public service similar to that provided by marriage commissioners – CIC would be required to demonstrate that the policy is reasonably necessary to the pursuit of equality for women, and that accommodating Ms. Ishaq would be an undue hardship.

Where is the evidence that permitting a veiled woman to recite the citizenship oath is a serious threat to the achievement of women's equality? Also, is agreeing not to wear a face veil for the one-minute citizenship oath an adequate measure of adherence to this value? Surely, there could be more meaningful tests, ones that might apply to men as well.

However, if we do not want to test all candidates for citizenship about their commitment to women’s equality, then this policy simply targets niqab-wearing Muslim women, treats them as “un-Canadian” and suspicious, and promotes a discriminatory attitude towards them that has already caused violence. 

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Canada's human rights performance was just reviewed by the United Nations Human Rights Committee. A number of Canadian NGOs made submissions and went to Geneva for the review, including the Canadian Feminist Alliance for International Action, which is an alliance of more than sixty national, provincial and local women's organizations.

In its Concluding Observations, the United Nations Committee took Canada to task for “persistent inequalities between women and men” and made a special point about Canada's gender wage gap, which costs women about 23 cents on every dollar.[1] According to the World Economic Forum's Global Gender Gap Report of 2014, Canada's wage equality ranks in 27th place behind the Philippines, Nigeria and Albania.[2] A study by Catalyst Canada shows that Canada's gender wage gap is twice the global average.[3]

When Canada was questioned by Committee members during the review, the Canadian delegation demonstrated no concern about the gender pay gap. The delegation informed the Committee that if we subtracted from the calculation women's family status, time out of the work force to look after children, and occupation, women would earn 91 cents for every male dollar. It was an astounding reply: if women were the same as men, they would be paid more. That's the problem alright, but it's not the answer.

Canada's disinterest contrasts with the concern shown in another Conservative-led country, the United Kingdom, where Prime Minister David Cameron recently announced that his government will require firms with more than 250 employees to publish the average pay of male and female employees. Cameron hopes that this will pressure firms into boosting women's wages, and that the pay gap will be eliminated in a generation. The Office of National Statistics reports the gender wage gap in the U.K. at 9.4%, less than half of Canada's.

As a strategy, Cameron's requirement on firms to publish their pay data, with nothing else, is not likely to be effective. Nonetheless, it is refreshing to a Canadian ear to hear a Prime Minister recognize that employment discrimination remains a regular, and unacceptable, feature of women's lives.

The United Nations Human Rights Committee told Canada to “guarantee that men and women receive equal pay for work of equal value across its territory” whether they are working in the public or the private sector. Implementing this recommendation means a big change in Canada's laws on women's pay.

Equal pay for work of equal value – or pay equity – laws go beyond requiring that men and women receive the same pay when doing the same work. Pay equity laws permit comparisons between pay rates for work performed principally by women and pay rates for work performed principally by men.

Since the 1980s, Canada has had pay equity legislation that covers both the public and private sectors only in federal jurisdiction, Ontario and Quebec. Because in 2009, the Harper administration gutted pay equity protection for employees of the federal government, the federal public sector can no longer be counted as covered, although the federal private sector still is.

Manitoba, Nova Scotia, New Brunswick and Prince Edward Island all have legislation mandating some pay equity measures for the public sector, but not for the private sector. Saskatchewan, Newfoundland, British Columbia, and Alberta have no pay equity legislation at all.

In a workforce like Canada's, which remains highly sex-segregated, legislation requiring comparison between pay rates for traditionally female work and traditionally male work is an essential tool to address systemic gender-based wage discrimination. But it is not the only one. Pay equity laws need to be accompanied by other strategies, such as removing discriminatory barriers to better-paying jobs, promoting unionization of women, increasing the minimum wage, and providing affordable child care.

In 2015 it is time for Canada to have a national wage gap strategy that can deliver equality in pay to women. If we do not, at the rate we are going, women will wait another fifty years.  

Shelagh Day, President and Senior Editor
Canadian Human Rights Reporter




[1] This is the 2011 Statistics Canada figure for Canada.

[2] Ricardo Husmann et al, The Global Gender Gap Report 2014 (Geneva: World Economic Forum, 2014), at 65, online:  <http://www3.weforum.org/docs/GGGR14/GGGR_CompleteReport_2014.pdf

[3] The Globe and Mail, “Gender pay gap in Canada more than twice global average, study shows” 5 May 2015,  online: http://www.theglobeandmail.com/news/british-columbia/gender-pay-gap-in-c...

 

 

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Few who have followed the long and winding doctrinal road(s) of making-out a prima facie case of adverse effects discrimination, or of a breach of s. 15 of the Charter in like cases, would argue that statistics are a straightforward element.[1]  Civil litigators know that statistics in the air hold little promise of convincing a court.  This is evidently so in building a prima facie case.  In 2001, Colleen Sheppard, in “Of Forest Fires and Systemic Discrimination: A Review of British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U.” argued that lawyers and adjudicators needed a sophisticated and coherent theory of adverse effects discrimination ((2001) 46 McGill L.J. 533).  She bemoaned the Supreme Court's failure in Meiorin ([1999] 3 S.C.R. 3, 35 C.H.R.R. D/257), “to elaborate even slightly on the Court's conclusion that the facts disclosed a prima facie case of discrimination” (p. 545).  Though the Court looked to statistics showing women's aerobic capacity to be 65– 70 percent that of men in support of its conclusion that Ms. Meiorin had established a prima facie case of discrimination in challenging a sprinting test, it offered no guidance as to just where the line was as to “When does a statistical disparity reveal discrimination?” (pp. 545–46).

Judging by the recent case of Kahkewistakaw First Nation v. Taypotat, 2015 SCC 30, lawyers and adjudicators continue to need guidance on the utility of stitching statistics into the fabric of a prima facie case showing a breach of s. 15 of the Charter.  What was easy-peasy general statistical proof for the Federal Court of Appeal[2] became a mere “web of instinct” in the eyes of the Supreme Court (para. 34).  In the view of the Supreme Court of Canada, the statistics offered by the plaintiff did not establish adverse effects that were connected to a protected ground. So, in the end, 74-year-old Chief Louis Taypotat lost his  Charter challenge to  Kahkewistahaw First Nation's  Elections Act's Grade 12 requirement for candidates for Chief or Band Councillor. Mr. Taypotat had advanced his s. 15 case on the enumerated ground of age and the analogous ground of Aboriginality/Residence.

Kahkewistahaw is a sign that lawyers framing adverse effects cases involving statistics need to be on top of human rights jurisprudence.   My contention is that there is much to be learned from the first principles of anti-discrimination adverse effects jurisprudence developed, beginning in the 1980s, before human rights tribunals and reported comprehensively, as nowhere else, in the Canadian Human Rights Reporter  (www.cdn-hr-reporter.ca). This follows from Pearl Eliadis' point, “The central principle of equality anchored in the Charter is the same general principle that underpins human rights legislation and the work of human rights commissions and tribunals” (Speaking Out on Human Rights: Debating Canada's Human Rights System (Montreal & Kingston: McGill-Queen's University Press, 2014) at p. 203).  And, it is the latter that has driven the former all along.  Shelagh Day, Lucie Lamarche and Ken Norman note, “At the beginning of Charter equality rights interpretation the Supreme Court of Canada carried the fundamental principles that had been established in human rights jurisprudence into interpretation of Charter equality guarantees.  Perhaps most important of these was the understanding that discrimination is not defined by intent but by adverse effects” (14 Arguments in Favour of Human Rights Institutions (Toronto: Irwin Law Inc., 2014)).

A recent case on point is Vancouver Area Network of Drug Users v. British Columbia (Human Rights Tribunal), 2015 BCSC 534, CHRR Doc. 15-3031 (“VANDU”), where the rich human rights jurisprudence on adverse effects discrimination is adopted.  VANDU, at para. 87, sees in the BCHRT decision in Radek v. Henderson Development (Canada) Ltd. (No. 3), 2005 BCHRT 302, 52 C.H.R.R. D/430, “a mirror image of this case”.  The Tribuna's extensive discussion in Radek  centers on an initial vital point about statistics as a useful — but not essential — signal that, as the SCC said in Moore, “the protected characteristic was a factor in the adverse impact”[3] (emphasis added). In Radek, at para. 513, the Tribunal said:

… to return to first principles, what is necessary is evidence of “practices or attitudes that have, whether by design or impact, the effect of limiting an individual's or a group's right to the opportunities generally available because of attributed rather than actual characteristics …”: Action travail des femmes [[1987] 1 S.C.R. 1114, 8 C.H.R.R. D/4210]. Statistics may be a “signal” of such effects, but they are not necessary in every case. The signal should not be confused with the thing signified. [Emphasis added.]

Ken Norman, Professor Emeritus,
 University of Saskatchewan College of Law

 


[1] See, Gwen Brodsky, Shelagh Day, and Yvonne Peters, Accommodation in the 21st Century, (March, 2012), Online: Canadian Human Rights Commission http://www.chrc-ccdp.gc.ca/proactive_initiatives/default-eng.aspx, for a discussion of recent attacks launched by respondents, prompted by the heightened standard of the duty to accommodate in light of Meiorin, infra, on the elements of proving a prima facie case.

[2] Taypotat v. Kahkewistahaw First Nation (2013), 365 D.L.R. (4th) 485 at para. 48, where the Court of Appeal notes that “The education gap within the on-reserve aboriginal population of Canada is well documented … Moreover, the education gap between older and younger Canadians is also well-known”.

[3] Moore v. British Columbia (Education), 2012 SCC 61, 75 C.H.R.R. D/369, at para. 33

 

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