Cablegate: The Role of the Provincial Human Rights Commissions

Published: Fri 8 Aug 2008 08:08 PM
DE RUEHOT #1059/01 2212055
P 082055Z AUG 08
E.O. 12958: N/A
REF: OTTAWA 1032 (Federal HR Commission)
1. (U) Summary: Canadian provincial human rights commissions and
tribunals administer provincial human rights law, with varying
provisions, procedures, and jurisdictions. While the public has
traditionally viewed these commissions and tribunals as defenders of
human rights, they are coming under increasing criticism, especially
for their work related to hate speech and minority rights. Mission
Canada on July 28 held a DVC with reporting officers from Embassy
and constituent posts on the role and perceptions of the federal and
provincial human rights commissions and tribunals. Reftel discussed
the federal Canadian Human Rights Commission; this message includes
information from Mission Canada poloffs on the commissions and
tribunals in their respective consular districts. End summary.
Procedures and Jurisdictions Differ
2. (U) Provincial human rights commissions and/or tribunals
administer provincial human rights laws, with varying provisions,
procedures, and jurisdictions. For example, both British Columbia
and Ontario practice direct-claims models in which complaints
proceed directly to tribunal, while commissions in all other
provinces and the territories provide some form of prior screening
and refer only a limited number of cases to formal adjudication.
Every province administers some type of dispute resolution
mechanism, and most also run human rights education and
discrimination prevention programs.
Atlantic Canada
3. (U) The human rights commissions in the four Atlantic provinces
focus on complaints dealing with employment situations, physical
disabilities, gender issues, mental disabilities, and age. As
populations in Atlantic Canada are largely homogenous, with between
95 and 99 pct of Atlantic Canadians tracing their roots to the
British Isles and Europe, few cases of racial discrimination feature
in the case-load. The public in Atlantic Canada generally views the
commissions as important to upholding human rights. However, public
opinion towards the role of the commissions in minority rights
cases, especially regarding ethnic and religious rights, is growing
increasingly negative, causing a backlash against those groups that
bring such cases to the commissions. In one controversial case, the
Nova Scotia Human Rights Commission in 2007 ruled that a town
council's decision not to fly the gay pride flag over city hall, and
its policies regarding homosexual rights in general, were contrary
to Nova Scotia's Human Rights Act.
4. (SBU) According to Nova Scotia Human Rights Commission Director
and CEO Krista Daley (please protect), disability rights complaints
are the most common, half of which are employment-related cases
involving mental illness. Daley noted that, since the expansion of
the Commission's mandate to apply to aboriginal issues, the
Commission has also seen an increasing number of cases involving
aboriginals. She noted that this mandate change was especially
important for aboriginal women, who can now bring sexual harassment
cases before the Commission. Daley told the Halifax Consul General
that she was frustrated by the "patchwork" of human rights
commissions in each jurisdiction in Canada, all with different
mandates and operations structures. She noted that an individual
living in one province may have the right to bring a case before
his/her commission, but this person may not have the same right in a
different province. For example, British Columbia and Nova Scotia
commissions have jurisdiction over media, but other provincial
Qcommissions have jurisdiction over media, but other provincial
commissions do not. Daley also remarked that human rights
commissions across Canada are under siege in the media due to
misinformation and confusion about their respective mandates,
stemming largely from the Maclean's case, which involves allegations
that Maclean's magazine violated human rights by publishing
allegedly "anti-Islamic" articles and book excerpts written by
author Mark Steyn (reftel). She stated that the provincial
government is considering withdrawing the Nova Scotia Human Rights
Commission's mandate over media cases, and noted that she supported
the move.
5. (U) The Quebec Human Rights Commission (Commission des droits de
la personne et des droits de la jeunesse) upholds and promotes the
Charter of Human Rights and Freedoms of Quebec. According to Quebec
Human Rights Commission Public Liaison Officer Daniella Robichaud,
the majority of complaints the Commission receives are related to
employment or housing. The Commission resolves the bulk of
inquiries through mediation. The Commission's responsibilities
include: receiving inquires and complaints; conducting
investigations; educating the public about human rights; analyzing
laws, bills and regulations and, when they are contrary to the
Charter, making recommendations to the government; and conducting
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and encouraging research and publication on human rights and
freedoms. The Commission also provides support for businesses and
organizations implementing affirmative action programs, a
requirement for companies with over $100,000 in contracts with the
provincial government. The Quebec Human Rights Commission has the
power to initiate investigations, including of the government
itself, without representing a specific complainant. In addition,
the Commission's legal department is required to review all
legislation passed by Quebec's National Assembly to ensure
provincial laws and regulations comply with the Charter of Human
Rights and Freedoms of Quebec. Uniquely, the Commission also has a
mandate to promote and uphold the rights of children under the Youth
Protection Act and the Youth Criminal Justice Act.
6. (U) In Quebec, the debate over "reasonable accommodation" since
2006 and the subsequent Bouchard-Taylor Commission's hearings have
largely subsumed dialogue over human rights and heightened ethnic
and religious sensitivities, resulting in a focus on preserving
"Quebecois values." The Commission has contributed to Quebec's
focus on human rights and freedoms by instituting one of the most
active outreach efforts, maintaining an education department that
seeks to engage the community to prevent future human rights
violations. Currently, the Commission is working with the municipal
police to reduce mistreatment of homeless youths in Montreal. It
has also worked with an NGO to publish a booklet for youths on the
rights of those detained or arrested by the police. This fall, the
Commission will establish a telephone hotline dedicated to receiving
complaints of human rights abuses related to reasonable
7. (U) In early 2008, the Quebec Human Rights Commission ruled on a
case dealing with the application of U.S. International Traffic in
Arms Regulations (ITAR). The Commission ruled that Bell Helicopters
was guilty of practicing discriminatory hiring practices. Bell
argued that its rejection of an internship application from a
Haitian-Canadian dual citizen was in compliance with ITAR
restrictions against hiring citizens of certain countries to work on
U.S. military contracts. Following the Commission's finding (but
before the case reached the tribunal stage) Bell settled with the
complainant. Until a tribunal judge rules decisively on the issues
involved in the case, companies remain at risk of human rights
commissions and tribunals accepting and hearing complaints related
to ITAR compliance.
8. (U) The Ontario Human Rights Commission received approximately
42,000 complaints in April 2006 through March 2007, of which 2,337
led to formal complaints. More than 56 pct of these complaints
focused on disability-related discrimination, and over 36 pct were
related to race. The Ontario Human Rights Code requires that
complaints be filed within one year of an incident of alleged
discrimination. As of June 2008, the Ontario Human Rights
Commission no longer processes discrimination complaints, which
instead proceed directly to the Human Rights Tribunal of Ontario.
The change is designed to expedite the process and eliminate a case
backlog of between 2 and 4 years. The Ontario Commission has ruled
that it does not have jurisdiction over media-related cases. In the
Maclean's case, while it denounced the magazine for "Islamophobic
portrayals of Muslims" and "promoting destructive, xenophobic
opinions," it dismissed the case, ruling it had no jurisdiction over
print media. According to the Commission, while Section 13 of the
Qprint media. According to the Commission, while Section 13 of the
Ontario Human Rights Code makes it illegal to display or publish
certain kinds of offensive material, its limitations are too narrow
to apply to most cases.
9. (U) The Manitoba Human Rights Commission screens complaints,
provides mediation, and refers cases that cannot be otherwise
resolved to independent adjudication in public hearings. Complaints
must be filed within six months of an incident of alleged
discrimination. Cases that proceed to adjudication must have a
significant "public interest" component and the Commission presents
the case at the hearing on behalf of both the Commission and the
complainant. As with the majority of the commissions, the greatest
proportion (80 pct) of complaints relate to employment and
disability. Some 90 pct of Manitoba employers fall under the
Commission's jurisdiction. The Commission also handles complaints
related to aboriginal issues, gender, policing and alleged racial
profiling, particularly of aboriginals. In 2006, the Commission
received 342 inquiries or pre-complaints, of which 297 became formal
complaints and seven went to adjudication.
10. (SBU) Representatives of the Manitoba Human Rights Commission
characterize their organization as a proactive, medium-sized agency
that has largely escaped the negative criticism leveled at human
rights commissions in Western Canada. The Commission attributes this
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to an active focus on public education, awareness, and community
outreach -- particularly to youth and employers -- as well as to
efforts to partner with academic and community groups to explore,
for example, "the next generation" of human rights issues, including
the environment. The Commission draws a clear distinction between
itself and its Western counterparts with respect to hate speech.
Manitoba Human Rights Commission Executive Director Dianne Scarth
argued that the Commission would not, for example, have accepted the
Maclean's case, due to the narrower scope of the province's human
rights code, as well as to a non-confrontational "different climate"
of public discourse. She noted that the Manitoba Commission was
concerned by the negative publicity generated by the Maclean's case
and, although it ultimately decided not to comment, had considered
issuing a formal public statement regarding its effect on human
rights commissions across the country. In general, the Manitoba
Commission appears enthusiastic about expanding its mandate and its
interpretation of human rights in the province, although it
acknowledges that public opinion is divided over how broad that
mandate should be.
11. (U) The federal Canadian Human Rights Commission also maintains
an independent presence in Manitoba in the form of its Aboriginal
Initiative, which has been based in Winnipeg since 2007. The office
is responsible for research and knowledge-building on human rights
issues within federal jurisdiction that affect aboriginal peoples
across Canada. Following the passage of legislation in June 2008
extending the Canadian Human Rights Act to aboriginal peoples
on-reserve, the Aboriginal Initiative is leading the federal
Commission through a three-year transition period to deal with the
expansion of its mandate, develop culturally appropriate dispute
resolution models and redress mechanisms, and raise community
awareness through education and outreach.
Alberta and Saskatchewan
12. (U) Over 95 pct of complaints brought to both the Alberta Human
Rights Commission and the Saskatchewan Human Rights Commission are
employment-related, with approximately one third focusing on mental
and physical disabilities and a very small percent dealing with hate
speech. The Saskatchewan Human Rights Commission receives
approximately 300 to 400 cases each year, of which approximately 20
pct relate to discrimination based on ancestry (including
nationality and race), and another 20 pct relate to gender. The
neighboring Alberta Human Rights Commission (which covers a
population of about 3 million people, triple that of Saskatchewan),
receives between 600 and 800 cases per year, of which approximately
34 pct deal with physical disability, 25 pct with gender, and 13 pct
with mental disability. In both provinces, parties resolve the
majority of cases through settlement. The Alberta Human Rights
Commission resolves approximately 97 pct of inquiries through its
reconciliation process, and the Saskatchewan Human Rights Commission
referred only eight pct of cases to tribunal between 2006 and 2007.
13. (U) While a relatively small number of cases in Alberta and
Saskatchewan involve hate speech, these cases have generated the
most controversy and press coverage, with an increasingly vocal
group of critics in Western Canada suggesting the commissions have
strayed into censorship at the expense of free speech. In one
controversial hate speech case, the Alberta Human Rights Commission
ruled that Stephen Boissoin, who identified himself as a pastor and
Qruled that Stephen Boissoin, who identified himself as a pastor and
executive director of the Concerned Christian Coalition, violated
Alberta's Human Rights, Citizenship and Multiculturalism Act by
publishing statements in a local newspaper "likely to expose
homosexuals" to "hatred and contempt due to their sexual
preference." Boissoin had written a letter published in the Red
Deer Advocate that, he argued, was based on his church's teaching
against homosexual behavior. In May 2007, the Commission ordered
that Boissoin "cease publishing, in newspapers, by email, on the
radio, in public speeches, or on the Internet, in the future,
disparaging remarks about gays and homosexuals," publish a written
apology, and pay $5,000 in damages.
14. (U) On August 6, 2008, following a year-long investigation, the
Alberta Human Rights Commission rejected a complaint by the Edmonton
Council of Muslim Communities against former Western Standard
publisher Ezra Levant over his republication of the Danish Muhammad
cartoons. The Commission ruled it would not refer the complaint for
panel hearing, stating that while the cartoons were "stereotypical,
negative and offensive," they were "related to relevant and timely
news" and were "not simply gratuitously included." In February
2008, a Calgary Muslim leader withdrew a similar complaint against
Levant. The complaints generated considerable public debated about
the commission's mandate over hate speech. Since the filing of the
complaints, Ezra Levant has become an outspoken and well-known
critic of the commissions, arguing they are limiting free speech and
restricting freedom of expression.
British Columbia
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15. (U) The British Columbia Human Rights Tribunal receives
approximately 11,000 complaints each year, with about 50 to 75 going
to hearing, and parties either dropping or resolving through
mediation the remainder. Approximately 70 pct of complaints are
employment-related. British Columbia re-organized its commission
system in 2005, turning its Human Rights Commission into a tribunal
and stripping the institution of much of its power. Previously, the
commission could represent parties, conduct investigations, and run
educational programs. The tribunal possesses none of these powers.
Cases now proceed almost directly to the complaint stage, and go
through a streamlined process. After receiving a complaint, the
Tribunal offers the parties the option of attending a
tribunal-assisted settlement meeting prior to the respondent filing
a response. A settlement meeting may also take place at any later
stage. In addition, respondents have the right to ask for
dismissal, which allows a tribunal judge to review written evidence
ahead of a hearing to determine validity. In the 2006-2007
reporting year, the Tribunal handled 1,016 complaints, 222 of which
it threw out at initial screening. Of the complaints it received,
61 pct were employment-related. The most common grounds for
discrimination were physical disability, gender (including
pregnancy), and mental disability. The Tribunal settled (either
through mediation or hearing) 44 pct of complaints, did not accept
21 pct for review, and dismissed 19 pct. Parties withdrew or
abandoned 9 pct and 7 pct respectively.
16. (SBU) The British Columbia Human Rights Tribunal heard testimony
in the Maclean's case in early June 2008 and is currently
deliberating, with a decision not likely for several months,
possibly as late as December 2008. The Tribunal received written
submissions in the case up to the beginning of July. The Maclean's
case is only the second complaint to be brought under the
discriminatory publications provisions of the British Columbia Human
Rights Code. Officials informally commented to Poloff that the case
proceeded to the hearing stage largely because neither party would
agree to mediation, and because Maclean's refused to file an
application for dismissal of the case, implying that both sides were
looking to gain publicity for their causes.
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